source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    The Hamburgh Manufacturing Company and others v. Jos. E. Edsall, Elias L’Hommedieu and others.
    It had been determined that, by an agreement between creditors of an incorporated manufacturing company and the company, a manufacturing establishment was held by A., in trust, first, for the payment of the creditors, and then for the company. The property was occupied by B., in its appropriate use, in connection with, or with the consent of A.; and an order had been made in a cause in which the company was complainant, and A. and B. were defendants, directing both A. and B. to account for the rents and profits, for the purpose of ascertaining whether they had not amounted to sufficient to pay the debts; and the account had not yet been taken. B.’s ability to respond was admitted; and the property was of a nature to be injured if not used. In this state of things, the company applied for a receiver to take charge of the property. The motion was denied.
    A denial that property is held in trust does not make the appointment of a receiver necessary on the establishment of a trust.
    Where there is no ground for apprehension of loss by permitting the property to remain, in its appropriate use, in the occupancy of him who has the use of it, and his ability to respond for its use is admitted, and he is one of the persons who have been ordered, in the cause, to account before a Master for the rents and profits that may have been received, a receiver will not be appointed to take charge of the property.
    The decision of the main points in this case by the Court of Chancery is reported ante, vol. 1, p. 249 ; and the decision bthe Court of Errors and Appeals is reported ante, vol. 1, p. 658. The last mentioned decision was made in July, 1848.
    A motion was made on the 3d of November, 1848, in behalf of the Hamburgh Company or some' person or persons interested in that company as stockholders, for the appointment of a receiver t,
      the bill having prayed for a receiver, and the court having not yet appointed one.

      B. Williamson and W. Pennington in support of the motion.

      I). Haines, R. Hamilton and S. G. Potts, contra.
    They cited 1 Green’s Ch. 179; 10 Law Lib. 106; 2 Story’s Eq. Jur., sec. 834; Edw. on Receivers, 20, 21.
   The Chancellor.

By an article of agreement made by some of the creditors of the Hamburgh Manufacturing Company, among them, they covenanted and agreed with each other to unite with each other in the purchase of the property of the Hamburgh Company, then advertised to be sold at Sheriff’s sale, and also of the mine farm of the Clinton Manufacturing Company, then also advertised to be sold at Sheriff’s sale; (having recited in the said agreement that they were in danger of losing their claims against the Hamburgh Company if the Hamburgh property sold for less than f>17,000 ;) and constituted L’Hommedieu, who was one of the said agreeing creditors of the Ham-burgh Manufacturing Company, their agent and trustee to purchase the said properties for their use ; and authorized their said trustee to raise, by bond and mortgage on the property, sufficient money, &c.; and authorized and directed the said trustee to lease the said premises, and to agree with the lessee, if he desires it, to sell to him the said premises upon his securing to the said trustee the cost of the premises, including their respective claims, with interest; and to make a deed of release to him in full. The sales were made, and the Sheriff gave absolute deeds, to L’Hommedieu.

Upon the testimony in the cause, the Court of Chancery held, that it appeared that Edward W. Pratt, who had been a large stockholder in both these separate Companies, but who had taken the benefit of the insolvent law, and had, in pursuance of the provisions of that law, made an assignment of all his estate to his assignees in insolvency, was, by a side agreement between the said agreeing creditors of the Hamburgh Company and himself, to be the lessee under the said agreement, and the person to whom both.properties were.to be conveyed by the-said trustee, on his paying the claims of the said agreeing Hamburgh creditors ; and that, by reason of means used, in connection with this agreement,, which prevented competition and produced a sacrifice of the property of both companies, the sales were void; and that, consequently, as respected the Hamburgh property, a trust resulted in favor of the Hamburgh Company and its creditors generally; and that, as respected the property of the Clinton Company, it remained the property of the Clinton Company, and a trust resulted in their favor ; but that, as the Glinton Company was not before the court, nothing could be done in this suit in the way of relief to them or their creditors.

On appeal from the decree, the Court of Errors and Appeals decided, that the Sheriff’s deeds, for both properties, to L’Hommedieu were good; but “that the facts and circumstances led irresistibly to the conclusion, that the sales were not considered by the parties as absolute and beyond redemption; but that Pratt, either for himself or the Company, had a reversionary right and in this view of the case sustained the decree for an account as to the Hamburgh Company’s property; which was a decree against L’Hommedieu, who took the deeds, and Edsall, who was one of the said agreeing creditors of the Hamburgh Company, and who had gone into possession of the property under, or in connection with, or with the consent of L’Hommedieu — he, Edsall, also holding a mortgage on a part of the property. And as to the property of the Clinton Manufacturing Company, the Court of Errors and Appeals decided, that L’Hommedieu held that in trust for the same persons for whom he held the Ham-burgh Company’s property. I might remark here, that it is manifest that the sale of the property of the Clinton Company was intended, by the said agreement among a portion of the creditors of the Hamburgh Company, to be absolute, and to divest all the ■title of the Clinton Company, and vest it in L’Hommedieu in trust for the said agreeing creditors of the Hamburgh Company. And it might be further remarked that, if the deed to L’Hommedieu for the property of the Clinton Company be valid, it is difficult to perceive how the Hamburgh Company can have any ¡reversionary interest in the property of the Clinton Company, or any interest at all in it. If the deed to L’Hommedieu for the property of the Clinton Company be good, it would seem that he would hold this property either absolutely, according to the purport of the deed to him, or, if in trust, in trust for the persons for whom he agreed to hold it in trust, that is to say, that portion of the creditors of the Hamburgh Company who entered into the said agreement; and not for the Hamburgh Company, the complainants in the case.

As to both properties it was clear to my mind that the very object of Pratt and the agreeing creditors of the Hamburgh Company, in the arrangement they made, was that the sales of both properties should be absolute as against both Companies ; and that the Clinton property should go into the hands of L’Hommedieu to aid in paying the claims of these agreeing creditors of the Hamburgh Company, which they despaired of getting out of the Hamburgh property; and then, on Pratt’s paying the amount of those claims, he, individually, and not the Hamburgh Company, was to have both properties, free from all debts except the mortgages. This was the very arrangement which put an end to all competition and caused the sacrifice of both properties.

It was clear to my mind, that if the deeds were valid, the defendants were right in saying, that L’Hommedieu was not a trustee for the Hamburgh Company, but was a trustee for them, the said agreeing creditors of the Hamburgh Company. And, in this view, the only ground on which any other trust could be reached was by declaring the deeds void; thus reaching a resulting trust in favor of the Hamburgh Company in reference to the Hamburgh property. But a trust could not result to the Ham-burgh Company in the Clinton property by the setting aside of the deed to L’Hommedieu for that property. Whether that deed be good or bad, there can be no trust in L’Hommedieu of the Clinton property in favor of the Hamburgh Company.

If the case stood now as it did when it passed from my hands before, there would be a ground for the appointment of a Receiver arising from the constructive fraud by which the property got into the hands of L’Hommedieu. But by the view taken of the case by the Court of Errors and Appeals that ground is taken away. The deeds have been declared by that Court to be good; and L’Hommedieu is declared to be a trustee of both properties, first, for the said agreeing creditors of the Hamburgh Company, or, it may be, for all the creditors of the Hamburgh Company, the language of the deed does not certainly indicate which, and, after the debts of those creditors shall be paid them, for the Hamburgh Company. And, on the case being remitted to this court, an order was made directing an account, in order to ascertain whether the rents and profits have been sufficient to pay those debts, and how much, if any, of the rents and profits has been applied for that purpose ; and this matter of account is now in the hands of a Master. What will be the result of the account is entirely uncertain; the said creditors have not yet been paid. In this state of things, the Hamburgh Company ask, that the property may be taken out of the hands of the trustee so agreed upon, and put into the hands of a Receiver, against the consent of the said creditors by whom, with Pratt’s consent, the said trustee was appointed ; the said creditors preferring that the said trustee be continued in the trust. The works on the property (iron works,) are now in operation, conducted by Edsall, a man experienced in the business, and of unquestioned responsibility, and who, also, has been directed to account before the Master. And all agree, that to stop the works and permit them to stand unemployed would be ruinous to them. And a Receiver is not asked for the purpose of selling the property.

The principal ground on which the appointment of a Receiver was pressed was, that L’Hommedieu and Edsall denied the trust. It is true they denied any trust in favor of the Hamburgh Company; and, if the deeds be valid, it is difficult, as I have before said, to perceive how there can be a trust in favor of the Hamburgh Company as to either of the properties, and much more difficult to see how there can be a trust in favor of the Hamburgh Company as to the property of the Clinton Company; but they admitted the trust created by the words of the said agreement among the said agreeing creditors.

But a denial of a trust would not, of itself, make the appointment of a Receiver necessary on the establishment of the trust. Where there is no ground for apprehension of loss by permitting the property to remain, in its appropriate use, in the occupan cy of him who has the use of it, and his ability to respond for its use is admitted, and he is one of the persons who have been ordered in the cause to account before a Master for the rents and profits that may have been received, I see no good end to be attained by the appointment of a Receiver for the purpose of taking charge of the property.

The motion cannot prevail.

Motion denied.


text:
    The Newark Aqueduct Company and others v. James N. Joralemon and others.
    A. having contracted to buy a lot of land from B., and there being judgments against A., it was agreed between them that B. should make the deed to a brother of A., in trust for an infant son of A, the brother and son having no knowlegde of the-transaction at the time, and that the deed should not be recorded ; and that when-A. should settle with his creditors, B. should make a deed to A. A. paid the money for the lot, and B., afterwards, in the absence of A. from the State, made the deed to the brother in trust Ac. and had it recorded. Subsequently C. applied to A., who was in possession of the lot, for the purchase of it, and A. agreed to sell it, and to procure a deed from the brother to C. C. requested A. to show him the title papers, but the deed to the brother could not be found, or was not produced. C. then applied to the Clerk of the County for a certificate of the title as if appeared on the records; and the Clerk’s certificate, by mistake, gave the deed from B. to the brother as an absolute deed, unlimited by any trust; whereupon C. took a deed from the brother and paid the purchase money. C. had no notice of the trust, otherthan the constructive notice by the record.

      Seld, that C,’s title was good.
    The facts stated in the bill were admitted in the answer ; the infant defendant answering by James N. Joralemon, his guardian. They are shortly as follows :
    In October, 1842, James N. Joralemon agreed to buy of Lucas Carter a lot of land in Newark; but the said James' being in embarrassed circumstances, it was agreed between them, in order that the lots should be secure from the liens of judgments against James, that the deeds should be made to Samuel L. Joralemon,, the brother of the said James ,* and, with a view of providing against the contingency of the said lot descending to the heirs of said Samuel in case of his death, it was agreed that the deed to Samuel should be in trust for the benefit of Lewis Joralemon, an infant son of the said James. Neither Lewis nor Samuel had any knowledge of the transaction at the time; and it was agreed that the deed to Samuel should not be put on record, but should be held by Samuel until James could find it convenient to makea settlement with his creditors, when the lot was to be conveyed by Carter to James. James gave Cuarter his note for the consideration money, $500 ; which he afterwards paid.

      James, after making the arrangement, went to New Orleans ; and during his absence Carter had the deed drawn and executed, acknowledged and recorded. The deed was to Samuel L. Joralemon, his heirs and assigns, in trust for the said Lewis, his heirs and assigns. For a long time after the deed was given it remained in James’s possession; the said Samuel and Lewis still continuing ignorant that any such conveyance had been made.
    In 1843, Hanford Smith, since deceased, applied to James for the purchase of all the real estate whereof he was then possessed in Clay street and on the Passaic river, in Newark, including the lot so conveyed to the said Samuel; and James agreed to sell the same to him; and that a deed should be given therefor by the said Samuel; and accordingly, at the request of James, Samuel and his wife, by deed dated January 1,1845, in consideration of’ $-, paid by Smith to Samuel for the benefit of the said James, conveyed the said property to Smith, his heirs and assigns, in fee simple, unlimited by any trust, with full covenants of warranty.
    Preparatory to the purchase by Smith, he requested the said James to hand him the deeds showing his title to the property about to be conveyed ; but the deed for the said lot could not be found; whereupon Smith caused the records of the county of Essex to be searched; and a regular deduction of title was thereupon made out by the Clerk of said County, under his hand and seal; in which the deed from Carter to the said Samuel L. Joralemon for the said lot was noted without any qualification whatever ; but appeared therein as a deed in fee simple, unlimited by any trust.
    Smith afterwards sold the said property to the complainants, The President and Directors of the Newark Aqueduct Company, by deed dated April 1, 1845; and in April, 1846, the said Aqueduct Company, for the consideration of $1,000, sold to the complainants Stoudinger and Baldwin a part of the said lot.
    The complainants, before their respective purchases, consulted the said certificate or deduction of title made by the Clerk ; and were induced to take a deed for the property from the fact that the said certificate exhihibited a clear and satisfactory title to the same in the said Samuel at the time they, respectively, purchased; and supposed that an absolute and indefeasible title was conveyed to them by the said Samuel.

      F. T. Frelinglmysen for the complainants.
    No counsel appeared for the defendants.
   The Chancellor.

The consideration money having been paid by James N. Joralemon, the conveyance to Samuel, in trust for the infant son of James, was voluntary; and the facts show that it was for an improper purpose. The subsequent purchaser, Smith, who took the conveyance from Samuel, was a bona fide purchaser without actual notice of the trust; and the certificate of the Clerk, on the faith of which he purchased, represented the deed to Samuel to be an absolute deed, unlimited by any trust. Smith’s equity is superior to that of the infant. His title will be established.

Decree accordingly.


text:
    Ezra Parkhurst v. Josiah F. Muir.
    In 1839, A., being the owner of a mill site, sold half of it to B., and A. and B. agreed to erect a factory thereon, and to carry on a manufacturing business in partnership. No written articles of partnership were made; nor was any time fixed for the duration of the partnership. A. and B. mortgaged the property to raise money to put up the building required, and about $3,000 remained due on the mortgage at the time of the filing of the bill. B. had given A. a mortgage on the half he purchased, for $400 of the purchase money; all which remained due at the filing of the bill. In October, 1848, B. filed a bill, charging that A. excluded him from taking any part in the business; and refused to give him any information as to ‘his sales and collections; and had sold goods of the partnership in his own name, and applied the proceeds to his own use; and refused to dissolve and come to a settlement; and that on a just settlement a considerable balance would be due him, B.; and prayed a dissolution and account, and a Receiver. The bill did not charge that A. was unable to respond.
    The answer denied the exclusion; stated that, in March preceding the filing of the bill, the parties had a settlement, by which the complainant acknowledged himself indebted to the defendant in $609 92, beyond the said mortgage debt of $400, and gave his note therefor to the defendant, no part of which had been paid; and that it was thereupon agreed by complainant that defendant should collect from the partnership business sufficient to pay the said note; that he, accordingly, after said settlement, sold goods of the partnership, (stating particularly what goods,) and charged himself with them on the books ef the partnership ; and that the complainant’s share of the net profits of the partnership since said settlement (giving the receipts and payments of the partnership since that time) was not sufficient to pay the said note; and denied that he ever refused to come to a settlement, and stated that he has been at all times, and is ready to account; and denied any design to act unfairly.
    A motion for a Receiver was denied.
    On the 18th October, 1848, Ezra Parkhurst exhibited his bill, stating, that in or about May, 1839, he entered into an agreement with Joseph F. Muir to form a partuership with him in the business of carrying on a saw mill and manufacturing paper, in the name and style of Parkhurst & Muir, on a mill site on the Passaic river, in the township of New Providence, which at that time belonged to the said Muir; which agreement was not reduced to writing, and was to the effect following: That the complainant should purchase half of the said mill site and real estate thereunto appertaining, from the said Muir, for $2,250, and that the complainant and said Muir should each furnish half of the capital necessary to build a paper mill on the said premises and carry on the saw mill and paper making business, and each of them to share equally in the profits and loss of said business; and that each of them should own the half of the said mill site and real estate, and each be at half the costs and expense of building a paper mill and making the improvements and repairs necessary to- carry on the said business-; and no tiiné was agreed1 upon for the limitation or continuance of the said partnership.
    That the said partnership business was entered upon, and' has ever since continued to be carried on' by the complainant and said Muir, under and in pursuance of the said agreement, except when interrupted by Muir, as in the bill after- stated; no other agreement having been made between them in relation to the said partnership.
    That, immediately after they entered into the said partnership, the c'omplainant paid the said $2,250, in the manner agreed upon between them, to the said Muir, and they erected a paper mill on' the said premises, and put the necessary machinery therein; and, in-the course of several months after entering into said partnership, they commenced manufacturing paper in the said mill, and ever since that time have continued to carry on the said business together, until August last; since which time Muir has prevented the complainant from participating in the said business, and still persists in excluding the complainant from participating in the transaction of the said partnership business, and refuses to consult with the complainant- in relation thereto, and refuses to give the complainant any information of his transactions of the partnership business and of his sales of partnership property and collection of partnership debts. That during the last winter he was very much dissatisfied with the manner'in which Muir was conducting the said business, and so informed him.
    That Muir has taken the books of account and of the'business transactions of' the partnership from the paper mill, where they belonged and had ever been kept, and carried them to his own house, against the consent and remonstrance of the complainant; and refuses to bring them back to the said mill, and to permit the complainant to have aceess to the same, against the repeated request of the complainant.
    That Muir has lately sold and sent away from the mill, on his individual account, a quantity of the paper made at the said mill, without the consent or approbation of the complainant, and marked the same with his own name, instead of the name of the firm, as they had always been in the habit of doing; and he marked the said paper with his own name because he had sold it for his individual benefit; but without the knowledge or consent of the complainant.
    And the complainant charges that Muir has recently applied to his own use large sums of money from the receipts and profits of the said business, greatly exceeding the proportion thereof to which he was entitled, and refuses to account to the complainant for the same. And the complainant believes and charges, that if Muir is permitted to remain in possession of said mill, and to sell the partnership property and collect the partnership dues, the complainant will be deprived of his share and interest in the partnership property, and be compelled to pay the partnership debts.
    That Muir declares to some persons that he has dissolved the said partnership; and at other times declared that he has agreed with the complainant to carry on the business on terms by which each partner is to use the mill on his own account and interest; all which the complainant charges to be untrue.
    That Muir, on the 19th September, 1848, addressed and sent to the complainant a note in writing, dated that day, in which he proposes to the complainant to keep on in business with him for one year longer, and on the 12th of October, 1848, addressed and sent to the complainant a note, dated that day, in which he alleges that he is not in partnership with the complainant in making pasteboard, and that he never intended to be; whereas the complainant charges, that they have been in partnership in the said paper mill since 1839, as above stated, and thatthe partnership has never been dissolved; and Muir refuses to dissolve the partnership and come to a fair and just settlement with the complainant of their partnership accounts.
    That since Muir has declared that the partnership was dissolved, and within a month past, he has purchased stock in his own name and mixed it with partnership stock and materials at-the mill, which he is now manufacturing and appropriating to his own account, against the consent and remonstrance of the complainant ; and has lately bought, on the partnership account, and put’in the mill, unnecessary and useless machinery, against the consent and remonstrance of the complainant.
    That Muir has boasted that he kept in his possession the said partnership books, and that the complainant knows nothing about the situation of their business affairs; and the complainant believes, from his conduct, that it is his intention, if possible, to compel the complainant to sell out to him the complainant’s intérest in the partnership property at a sacrifice, and through fraudulent means and by concealing from the complainant the true condition of their partnership affairs, to possess himself of all the partnership property.
    The complainant charges, that on a true settlement of said accounts it would appear that a considerable balance is due him from Muir in respect of said partnership dealings; but nevertheless Muir is collecting the partnership debts and applying the same to his own use; which he is enabled to do by means of his possession of the books of account and of the partnership transactions ; whereby the balance due from him will be increased, to the great loss and injury of the complainant.
    That he has from time to time, by himself and his agents, applied to Muir, and hath requested him to come to a full and fair account in respect of said partnership transactions, and to agree to a dissolution of the partnership. But that he refuses to agree to an amicable and mutual dissolution of the partnership and to come to a full and fair settlement of said accounts and to pay the complainant the share of the moneys and profits due the complainant in respect of the said partnership, and to permit the complainant to participate in the said partnership transactions.
    The complainant charges, that since March last, Muir has collected from $3,000 to $5,000 of the partnership debts, and has appropriated to his own use more than $1,000 over what he was entitled to for his share of the same.
    That within a month past Muir, has refused to come to a mutual and amicable dissolution, though he was requested to do so by an agent of the complainant sent to him for that purpose; and has refused and continues to refuse to permit the complainant to participate with him in the possession of said paper mill, and in the transaction of the said partnership business ; and within a month past has declared that he was advised to turn the complainant out of possession of said mill, and that he intended to do so, and that he did not mean to let the complainant have anything to do with the said business.
    The bill prays, that the partnership may be dissolved, and that an account may be taken of the partnership dealings and transactions ; and that Muir may be decreed to pay the complainant what, if anything, shall be found to be due to him, the complainant being willing and offering to pay Muir what, if any thing, shall be found due to him from the complainant; and that in the mean time Muir may be injoined from collecting any of the dues, moneys, rights or effects of the partnership, and from contracting any partnership debts, and from selling, transferring, or disposing of any of the effects of the partnership ; and that a Receiver may be appointed for the benefit of the creditors of the partnership and of the complainant and Muir; and for further relief.
    Affidavits were annexed to the bill.
    On the reading of the bill, an injunction was allowed. .
    On the 3d of November, 1848, a motion for a Receiver was made, upon notice.
    The answer of the defendant was read in opposition.
    The answer admits the partnership for carrying on a saw mill and making pasteboard, and not paper ¡ though the firm after-wards entered into the manufacture of paper; that the agreement forming the partnership was not in writing, and was to the effect stated in the bill; and that no time was agreed upon for the limitation or continuance thereof; and that said partnership business was entered upon as stated in the bill.
    The defendant denies that the said partnership business was in .anywise interrupted by him; and that no other agreement except the agreement in the bill mentioned was ever entered into between him and the complainant in reference to the partnership.
    He says that the $2,250 agreed to be given to him by the complainant for the half of said mill site and real estate was secured to be paid as follows: he and the complainant, on or about May 16,1839, gave to Jonathan M. Meeker their joint bond for the payment of $3,700, in instalments, with interest payable annually ; the payment of which bond was secured by a mortgage executed by him and the complainant and his wife upon the whole of said real estate of the said partnership ; and the sum of $400 was secured to be paid to this defendant by the bond of said Parkhurst, dated May 16,1839, with interest; the payment of which last mentioned bond was secured by a mortgage executed by said Parkhurst and wife to this defendant upon said Parkhurst’s undivided half of said partnership real estate. That on the said bond and mortgage given to Meeker there has been paid, out of the funds of the partnership, all the interest due thereon up to May 1, 1848, and $1,300 of principal; and that no other payments have been made thereon. That on the said bond and mortgage given by Parkhurst to this defendant no money has been paid for principal or interest.
    He admits that he and the complainant erected upon the premises a pasteboard mill and put the necessary machinery therein; and, in the course of several months after entering into the partnership, he and the complainant commenced manufacturing pasteboard.
    That the complainant did not comply with his agreement in the bill mentioned to pay half of the cost of putting up the necessary improvements on said premises ; but that, on the contrary, this defendant paid on that account considerably more money than the complainant.
    He says that on or about August 16, 1848, he and the complainant did agree to make sale of all and singular the said mills belonging to the partnership; and that, in pursuance of said agreement, and with the concurrence of the complainant, the same were, with all and singular the machinery in the mills and a set of rollers belonging to the partnership and then being at Newark, at the shop of Hewes & Phillips, machinists, and also all the material or unwrought stock and tools and certain other personal property then belonging to the partnership, on the 31st of August, 1848, struck off and sold at public vendue, to John J. Henderson, for $8,500, he being the highest bidder therefor. That the complainant was present at said sale, took part therein, and assisted in fixing the terms or conditions thereof.
    That, within the time in said conditions mentioned, ho duly tendered to said Henderson a deed duly executed by him, this defendant, and his wife, for his share of said real estate and machinery in said mill; and that Henderson refused to receive the same.
    He says he is informed and believes that the complainant, about the time of said sale and after the same had been agreed upon as aforesaid, stated that said Henderson would own the property in company with the complainant. And he has also been informed and believes that the complainant entered into an agreement with one David Burnet to lease to him, Burnet, after the said sale should have taken place, the saw mill in the bill mentioned. And the defendant says he is advised by his counsel and submits, that by the said sale of the said partnership property and effects the partnership was dissolved, and the business thereof at an end, except so far as regarded the collection of dues, the payment of debts, the sale of the residue of the stock, and the adjustment of the accounts of this defendant and the complainant in respect thereto, or the winding up of the affairs of the partnership.
    He denies that he has ever, at any time, in any way prevented the complainant from participating in the partnership business, or ever in anywise excluded or attempted to exclude the complainant from participating in the transaction thereof, or refused to consult with him in relation to the partnership business, or refused to give the complainant any information of his, this defendant’s, transaction of the partnership business or of his sales of the partnership property and collection of partnership debts. But, on the contrary, he says he has at all times during the continuance of the partnership, and subsequently to the dissolution thereof as aforesaid, been ready and willing to give to the complainant all information lie might require of this defendant concerning said partnership affairs, and to give the complainant a. voice in all the partnership transactions and a full and equal participation with this defendant therein to all intents and purposes, and to communicate to the complainant any information he might desire concerning the partnership affairs and business,, and of this defendant’s conduct thereih in every respect. And he says that he never, except by the bill of complaint, so far as he can now recollect, was informed by the complainant that the complainant was, or at any time had been, dissatisfied with the conduct of this defendant about said partnership business and affairs.
    He denies that he has taken the books of account and of the business transactions of the partnership from the paper mill, where, as the bill alleges, they belonged, to his own house , against the consent or remonstrance of the complainant; or that he refuses to bring said books back to the mill and to permit the complainant- to have access to them.
    He says that, from the commencement of the business of the partnership to about December, 1842, the said firm had but one book of partnership accounts or transactions; which book was, at the commencement of the partnership, kept in said pasteboard mill; and, there being no office in said mill, was then and for some time thereafter kept in different places in said mill, there being no fixed place for keeping it: but it was often to be found lying on bales of stock in said mill, or on heaps of unwrought material or of pasteboard. That, about six years ago, the complainant, in a conversation by him had with this defendant, referred to the loose and unsafe manner in which said book was kept in said mill, and suggested to this defendant that, lest it should accidentally be destroyed, this defendant should remove it to this defendant’s dwelling house, about 200 yards distant from, the mill, and keep it there; and this defendant did so, and kept it at his said house ever since, to this time, except when it has been brought forth as occasion required.
    He says that, about December, 1842, another book of accounts and partnership transactions was commenced; and after that, another.book was. commenced; and that said three books are all the books of account of the firm. That the last two books have never been kept in said mill, nor in any other place except this defendant’s dwelling house ; and that the complainant has at all times had free access thereto, and has never, in anywise, to the knowledge of this defendant, been prevented from ’examining or using the same ; and that all the said books were placed in this defendant’s dwelling house with the complainant’s full concurrence ; and that the complainant never requested this defendant to remove or suffer said books to be removed from said dwelling house to said mill, or to any other place, to be there kept, instead of at this defendant’s dwelling house.
    He says that, on the 31st of March, 1848, he and the complainant did account with each other of and concerning their said partnership business theretofore transacted, and their respective transactions thereof and therein; and, on a full, careful and accurate examination of their said accounts of the business and transactions of the partnership from the commencement thereof to that time, the same were adjusted to the satisfaction of this defendant and the complainant, the complainant then expressing his entire satisfaction therewith, the complainant was found indebted to this defendant in $609 92 ; of which sum $403 was due this defendant for moneys advanced beyond his share for building said mill, and interest thereon; and the residue was due this defendant from the complainant on account of this defendant’s share of the profits of the partnership business up to said March 31, 1848; for which sum of $609 92 the complainant then gave his note to this defendant, of that date, payable one day after date; which note is still in this defendant’s possession, no payment either of principal or interest having been made. And the complainant then gave to this defendant, in a book kept by this defendant of moneys received and paid out by this defendant on account of the partnership, a written statement under the complainant’s hand acknowledging that he had on that day settled all accounts on said book of this defendant and for the building of the mill, and that he, the complainant, then found a balance due this defendant of $609 92, for which he, the complainant, had on that day given his note, at one day from that date, and that said settlement settled for all charges the complainant then had against this defendant and said firm of Parkhurst & Muir. And the complainant at the' same time, in the same book, gave this defendant another written statement under his hand to the effect that all the accounts in said book were settled up to said March 31, 1848, by the complainant’s giving said note for $609 92 to this defendant; and also another statement ip writing, immediately following the last mentioned statement in said book, in the words and figures or of the tenor and to the effect following, that is to say : also all accounts up to this date, March 31,-1848; which statement was signed by this defendant and the complainant.
    The defendant further says, that it was expressly agreed between him and the complainant, on the said 31st of March, 1848, that this defendant should thereafter take from the partnership business sufficient moneys to pay the said note ; and that he has been informed and believes that the complainant has, since said settlement, declared that this defendant must take his pay for the said note out of the said partnership property.
    He says that, since said Aug. 31, 1848, he has sent away and sold on his individual account from said mill the following goods of the property of the partnership: 2,252 pounds of trunk boards, which were sold to H. N. Peters, of Newark, on or about Sept. 16,1848, on a credit of six months, at $4 50 per hundred pounds; 2,307 pounds of hardware paper, worth at this time $146, sent on or about Sept. 29, 1848, to John Campbell & Co., of Newark, to be sold on the account of this defendant; but whether the same has been sold or not this defendant does not know ; and 547 pounds of trunk boards, sold on or about Oct. 5, 1848, to Cornelius Walsh, of Newark, on this defendant’s account, for $24 62; and that besides the above he has not sold or sent away to be sold from said mill, or any other place, any of the stock or goods belonging to the partnership.
    He says that all the said paper and pasteboard so sold and sent away to be sold on his account was duly, at the several times when the same was sold or sent away to be sold, charged by him against himself in the partnership books, at the full prices thereof; and that the said paper sent to Campbell & Co. to be sold was marked with the letter M.; and said pasteboard was not marked in any way to designate from whom it came, or by whom it was sent.
    He says that, believing the partnership to have been dissolved by the sale of said partnership real estate and other partnership property, on said 31st of Aug. 1848, and the complainant having expressly agreed, as aforesaid, with this defendant, that this defendant should pay himself the amount of the said note of $609 92 out of said partnership property, this defendant sold and sent away to be sold the said paper and pasteboard in good faith, and intending to account for the same to the complainant in the final adjustment of their said partnership affairs.
    That, since the said 31st of March, 1848, he has received of the moneys belonging to the partnership $3,825 37, or thereabouts, and has paid out on account of said partnership $3,515 56, or thereabouts, since that day, leaving $308 81, or thereabout, excess of such receipts over such expenditures; a just and true account of which said receipts is annexed to this answer, marked Schedule A.; and a just and true account of said payments is also annexed to this his answer, marked Schedule B. That, in addition to said moneys mentioned in Schedule A., he received on account of the partnership business, on or about May 16, 1848, of the firm of C. & H. Lee, their due bill for $29 12; on the 15th of Aug. 1848, of the firm of Leggett & Brothers, their note for $250 ; which said due bill and note are yet unpaid and are now in his possession, no part of the money due thereon having at any time been received by him.
    That the complainant’s share of the net profits of the partnership business which have accrued since March 31, 1848, is not sufficient to pay the amount of principal and interest moneys due this defendant on said note of $609 92.
    He says it is true that, since said 31st of Aug. 1848, he has declared that the partnership has been dissolved; but has never so declared prior to that time.
    He denies that he ever said ho had agreed with the complainant to carry on said partnership business on terms by which each partner was to use the mill on his own account and interest; but he says that he did, since said 31st of August, state, in effect, that he, this defendant, was going to run said mill for one month, and and suffer the complainant to run it the succeeding month, and so on, each running the mill on his own account every alternate month. And he says that, shortly after he commenced to use the mill on his own account, he was informed that the complainant had said, in effect, that such an arrangement, whereby each partner should run the mill on his own account every alternate month, was well enough, except that this defendant should have suffered the complainant to have the use of the mill for the first month, and that the arrangement, should have been that each partner should run the mill on his own account every alternate week.
    He admits that he addressed two letters to the complainant; and that in the letter dated Sept. 19, 1848, he may, as in the bill alleged, have proposed to the complainant to continue the partnership for still another year ; and that in the letter dated Oct. 12, 1848, he may have made the allegations in the bill mentioned ; but he denies that he intended to convey in said last mentioned letter the idea that this defendant had never' been in partnership with the complainant, or any similar meaning.
    He says that the complainant and he have been in partnership in said business since 1839, and until Aug. 31, 1848, when, as he is advised by his counsel and submits, the partnership was dissolved by the sale of the partnership real estate and property hereinbefore mentioned and stated to have been made on that day. That no appeal has ever been made to him by the complainant, or on his behalf in any wise since said 31st of March, 1848, for any dissolution of the said partnership, or for a settlement of said partnership accounts ; and he denies that he has ever refused in any way to come to a just and fair settlement with the complainant of the said partnership accounts; but, on the contrary, he says that he has ever since said settlement made between them on said 31st of March, 1848, been ready at all times to render an account of such portion of the partnership business as has been under his management and control.
    He says that after the refusal of said Henderson to take said deed for his part of the partnership property and real estate, he continued to carry on business in said mill on the partnership account, with the sole design of turning to the best advantage of the partnership the unfinished material belonging to the partnership and then being in the mill. But finding, about the 4th of Oct., 1848, that the design of working up the said material was not likely to prove profitable to the partnership, on account of the nature of said stock or material, the same being very hard and not easily worked by the engines in the mill except when mixed with other and more pliable stock, and when not so mixed the same required three times as much work to convert it into pasteboard as when mixed with other stock as aforesaid; and not being willing to make purchases of other stock on the partnership account, said partnership then being, as he conceived and still conceives, dissolved, he purchased stock in his own name, and commenced the manufacturing thereof in said mill on his own account, as he is advised by his counsel he might properly do under the circumstances of the case.
    That since the 4th October, 1848, he has used, for his own account, of the partnership property, 280 pounds of trunk boards that had been spoiled in the finishing, worth about 21-4 cents a pound, and which he believed could never be sold for the purpose for which they were made. That said 280 pounds of trunk boards were taken by him the day before the injunction in this case was served on him, and part thereof used on that day and part on the day of such service and prior thereto. That he intended to charge himsell with it on the books of the partnership when he should have used it, but on account of the filing of complainant’s bill has omitted to do so. That on the said 4th October, 1848, there remained in the mill twenty-one hundred, one quarter and fifteen pounds of unwrought material hereinbefore mentioned; and that he did then charge himself with the same on the books of the partnership, at the full value thereof, to wit, §48 11, and has used about one-third thereof. That he is now, and has at all times since taking said pasteboard and stock or materials, been ready to account to the complainant for the same.
    That, besides said 280 pounds of boards and said unwrought material so taken by him, he has in no wise mixed with his private stock, or used on his own account, any of the stock or material of the partnership. And that the complainant has never at any time expressed dissent to such use of said 280 pounds of boards and said stock or material, or either of them, or remonstrated in any way with him on account of such use thereof.
    That he lately purchased for said paper mill a grind stone, of the weight of 682 pounds, and which cost $6 82 ; that he paid for the same with his own private funds; and that, after it was so purchased and paid for, he, believing it to be necessary to the mill, and that it would, when placed therein, be for the equal benefit of himself and the complainant as tenants in common of the mill, charged it to said partnership on his own private book of receipts and expenditures on account of the partnership. And that, except said grindstone, he has lately purchased no machinery for said mill except one roller, bought by him about Oct, 12,1848, in his own name and on his own account and credit. That he has lately made some slight and very necessary repairs to the machinery in the mill; and that the expense of such repairs, with the cost of the grindstone, will not exceed $15, as he verily believes.
    That, to replace a piece of the machine banding accidentally broken in the mill, he did, on or about Oct. 7, 1848, purchase another piece of banding on the account of the said Parkhuxst & Muir, at a cost of $3 27, which he has charged among the payments in said Shedule B. And that he is ready and willing to account to the complainant for all of said expenditures so made by him on account of said repairs to said machinery and for said grindstone and banding. And the complainant has never in any way remonstrated with him against such expenditure for repairs to said machinery or for said grindstone or banding; and that, the complainant has never, himself or by his agents, spoken to him in any way on the subject thereof.
    He denies that he has ever in any way boasted that he kept, said books of said partnership in his possession and that the complainant knew nothing about the situation of the affairs of the partnership. He says he has never, as he verily believes, made any statement to the effect that the complainant was ignorant of the affairs of said business, whereby this defendant had any advantage of said complainant.
    He says he has never conceived the design or had the intention of compelling the complainant to sell out to him the complainant’s interest in said partnership property at a sacrifice, or through fraudulent means and by concealing from the complainant the true and exact situation of the partnership affairs to possess himself of all of said partnership property. But he says that, on the contrary, he has at all times been ready and willing to give the complainant a full statement of his acts and deeds in and about said partnership business ; and he has kept a just, true and full account thereof in the books of the partnership and said book of said defendant kept by him as aforesaid and containing an account of his expenditures and receipts on account of said partnership business. And he has never conceived the design or intended in any way to act unjustly or unfairly towards the complainant in or about said partnership business or property.
    He denies that upon a settlement of the partnership accounts it would appear that any balance whatever is due from him to the complainant in respect of said partnership dealings; but says he verily believes that on a jus.t and true account of said partnership dealings since March 31, 1848, when the said partnership accounts were settled as aforesaid, it would appear that he has not received from the partnership business sufficient, over and above his share thereof, to pay the said note of $609 92, given by the complainant to him as aforesaid.
    He says that, since said settlement on the 31st of March, 1848, the complainant has collected and received, in cash, divers sums of money belonging to the partnership, amounting to $145 or thereabouts; and did also, as ho is informed and believes, receive, on or about Oct. 4,1848, on account of moneys due the partnership from the firm of John Campell & Co., the note of said firm, at six months, for $100 ; and this defendant verily believes, that with the exception of $5 paid by complainant to one Isaac Pryer, the complainant has applied said $145, so collected and received by him, to his own individual use and benefit; and this defendant is ignorant what disposition the complainant may have made of the said note of $100 received by him from Campbell & Co.
    He denies that he has at any time in anywise prevented or endéavored to prevent the complainant from using the mill or occupying it in common with him, otherwise than as before set forth.
    He says it may be true that he has said he was working the mill on his own account and had been advised that he had a right to do so until he had been paid the amount due him from the complainant; yet he denies that he has ever, according to the best of his knowledge, recollection of belief, said that he was working the mill and collecting the debts of the partnership to pay the amount due him on said partnership account for his share thereof. But he submits that under the said agreement made between him and the complainant on said 81st of March, 1848, in reference to said promissory note Of $609 92, and under the circumstances herein before mentioned, he was fully at liberty to have worked said mill and to have collected said debts, for the purpose of realizing the amount of said note.
    That it may be true that he has said that he had been advised to turn the complainant out of possession of said mill; but he denies that he ever said he intended to do so and did not mean to let complainant have anything to do with said business, or that he used words to that effect, or in anywise declarative of the intention to turn complainant out of said mill or not to permit complainant to have any participation in said partnership business.
    He denies that he has declared, at any time since the commencement of the partnership up to this time, that he was never in partnership with the complainant, or has used words to that effect or of that tenor ; and he says he has no recollection of ever having said that he had dissolved said partnership; and he verily believes he has never said so. But he -admits that since said 31st 'August, 1848, he may have said that they, the complainant and this defendant, had dissolved said partnership, or used words to that effect; this defendant having reference to the dissolution by the sale of said partnership property and real estate.
    He says that, since March 31, 1848, the complainant has spent but a very small part of his time in said mill and about the business of the partnership; and the time so spent by complainant would not in all, as this defendant believes, amount to more than 40 days. That, since said 31st of March, 1848, almost the whole burden of said business has rested on this defendant ; as well the superintending of the mill as the making sale of the partnership goods ; and that he has given to said business his whole and undivided time and attention. And he submits that on the taking of the accounts of the partnership business since said settlement thereof on said 31st of March, 1848, he is entitled to receive an extra allowance in consideration of such care, time and attention so given and bestowed by him since said settlement, taken in connection with the fact that the complainant has since then neglected the same and has not given the time and attention thereto which he ought to have done.

      F. B. Chelwood and Wm. Pennington for the motion.

      T. Runyon and A. Whitehead, contra.
    They cited 3 Kent’s Com., page 38, and sec. 328; 18 Ves. 280; 8 Ib. 318.
   The Chancellor.

I see no ground for the appointment of Receiver in this case.

Motion denied.


text:
    Thomas W. Haythorn v. Stephen F. Margerem.
    In 1814, by agreement under seal, A. contracted to buy, and B. to sell to A. a tract o£ land; and B. bound 'himself to give a deed to A. for it. A; paid the purchase money, and went into possession, and occupied it until 1825, when he moved from the vicinity; and, subsequently, C. took possession of the land. Meld, that the fact that A. had not obtained a deed from B. was not a sufficient ground for applying to a Court of Equity to give him possession as against an intruder; that his remedy was by ejectment.
    By agreement under seal B. agreed to sell-to A. a tract of land which, the agreement said, B. had bought of C., and for which D., by agreement between him and C., was to make a deed to C.; and B. undertook to procure and make title to A. D., after-wards, made a deed for the land to E. A. filed a bill against E. alone, praying that his title might be established, and for possession and an account of rents and profits. Meld, that the representatives of D., who was dead, were necessary parties.
    A party in possession may go into a Court of Equity under proper circumstances to remove a cloud from his title. But, it seems, that a party out of possession cannot, as against another in possession and claiming title under a deed, obtain a decree de- . daring the defendant’s title void, and putting the complainant in possession.
    On the 26th November, 1814, by an agreement of that date, under seal, between William and Robert Colfax, of the first part, and Thomas W. Haythorn, of the second part, the Colfaxes agreed to sell and convey to Haythorn the middle and south part of the farm they had lately bought of John Seward, situate in Vernon and Hardiston townships, in Sussex county, (describing it,) supposed to contain about 580 acres, including 20 acres near the turnpike house; for which, the agreement says, Jos. Sharp was to give a deed to said John Seward, by agreement, and which agreement the Colfaxes were, by the agreement between them and Haythorn, to give over to Haythorn ; the Colfaxes to have the farm surveyed as soon as convenient, and to make to Haythorn a good warrantee deed for the same, except a claim that Samuel S. Seward had on the farm, for about $4,000 ; and also for the said 20 acres; the said claim of Samuel S. Seward to be taken out of the purchase money for the farm. And Hay-thorn agreed to pay the Colfaxes, on the delivery of the deed,' $16 50 per acre, $5,000 down, and the residue in four equal annual payments, with interest, secured by bond and a mortgage on the premises.
    In 1820, Samuel S. Seward obtained a decree of foreclosure on his mortgage, and for a sale of the mortgaged premises, (the claim of Samuel S. Seward, spoken of in the agreement, was a mortgage.) This mortgage did not cover all the lands agreed to be sold by the Colfaxes to Haythorn.
    On the 11th of November, 1820, the mortgaged lands were sold by the Sheriff of Sussex under the said decree and a fi. fa. issued thereon.
    In the September term, 1820, of the Supreme Court, the State Bank at Newark recovered a judgment against Haythorn as indorser for the Colfaxes, for $1,181 53 ; and at the same term recovered a judgment against the Colfaxes for the same debt. On these judgments executions were issued and levied on the lands agreed to be sold by the Colfaxes to Haythorn which were not included in the mortgage to Samuel S. Seward, consisting of three lots ; one, called the Butler Seward lot, of about 39 acres; another, a lot of 20 61-100, lying at the south end of the farm; and the third, a lot of twenty acres near the turnpike house.
    On the 3d of May, 1821, the Sheriff, under the said executions, sold these throe lots. Two of them were struck off to Nicholas Ryerson; and the third was struck off to the Bank.
    The Sheriff, by deed dated August 13, 1821, acknowledged August 20, 1822, stating that Nicholas Ryerson, for and in behalf of William Smith, did then and there bid for a certain lot, commonly called the Butler lot, $ 136; and also the said Nicholas Ryerson, for the use of the said William Smith, did then and there bid the sum of $100 for another lot of land, commonly called the turnpike lot, situate on each side of the turnpike, as is supposed, and that no person bid more, conveyed the said lots to William Smith. This deed was made on the sale under the execution of the Bank against Haythorn.
    And the Sheriff, by another deed, dated August 18, 1821, acknowledged August 20, 1822, stating that Nicholas Ryerson, for and in behalf of William Smith, did then and there bid for a certain lot of land said to contain 24 acres, commonly known by the name of the Butler lot, the sum of one dollar, and the said Nicholas Ryerson, for the use of said William Smith, did also then and there bid for another lot said to contain 24 acres, being known by the name of the turnpike lot, the sum of one dollar, and that no person bid more, conveyed the said lots to Wm. Smith. This deed was made on the sale under the execution of the Bank against the Colfaxes.
    No deed was ever made by the Sheriff to the Bank for the lot struck off to the Bank at this sale.
    After the sale of the mortgaged lands, Haythorn remained in the Mansion House on the farm.
    In July, 1825, Haythorn left the county of Sussex, and moved to Paterson, where he has ever since resided.
    On the 25th of October, 1842, Haythorn filed his bill, stating the foregoing facts; and stating, that on the execution of the agreement between him and the Colfaxes, for the sale by them and purchase by him of the lands mentioned in that agreement, he paid a large part of the purchase money to the Colfaxes, and, in pursuance of said agreement, entered and took possession of all the lands therein mentioned, and continued in possession, making improvements, and making payments, until about 1819, when he had entirely satisfied the Colfaxes all the money to be paid to them; and that they offered him a deed for the premises; but that, because they had not procured a title from Sharp for the 20 acre lot near the turnpike house, he declined taking the deed till that was done■; and" that the delivery of the deed from the Colfaxes to him was for this cause delayed from time to time, so that he has never received a title from them. That he made payments from time to time on the mortgage to Samuel S. Seward, until 1819, when S. S. Seward filed his foreclosure bill.
    He says that, after the Sheriff’s sale- of the mortgaged land to Ryerson, and on the 28th of November, 1820, Ryerson, at the request of the complainant, Haythorn, and by an arrangement and agreement between the complainant and Smith, for $300, assigned all his right and interest in his bid for the mortgaged premises to Smith, and thereby directed the Sheriff to convey said mortgaged lands to Smith; and that the Sheriff, in, pursuance thereof, on the 29th of November, 1820, by deed of that date, conveyed the said mortgaged lands to Smith.
    That it was agreed between the complainant and Smith, that the complainant might become joint owner of the lands so conveyed to Smith by paying half the purchase money ; and that they would carry on business on the said lands together. That, in pursuance thereof, the complainant and Smith built and put in operation together, on said mortgaged premises, a forge and saw mill. That Smith resided in New York. That the complainant had the possession of the said premises, and controlled and managed the business thereon. That he remained so in possession of said premises until July, 1825, when, he and Smith having had difficulties respecting said agreement to purchase the said lands sold under the mortgage, and respecting the business carried on by them on the same, and having submitted those difficulties to arbitration, the complainant gave up the possession of said mortgaged lands to Smith, and moved to Paterson.
    As to the lots not included in the mortgage, he states, that he remained in the quiet and peaceable possession of them from the time he purchased them, with the mortgaged property, from the Colfaxes, until he moved to Paterson.
    Ho states, that at the sale of these lots under the judgment of the Bank against him, Mr. Vanderpool and Mr. Bolles attended the sales as agents of the Bank, and that Nicholas Ryerson attended there as his agent and friend. That Ryerson remonstrated against the sale of the complainant’s lands, insisting it was wrong to sell the complainant’s lands while the Colfaxes had lands and means of paying the claim. That it was then agreed between the agents of the Bank and the complainant that the Sheriff should sell the complainant’s said tracts of lands, by virtue of said judgment and execution against him, upon the condition and the express understanding that the Sheriff' should delay to make a deed, and that if the claim of the Bank was paid and satisfied in a short time, by the Colfaxes or the complainant, the sale was to be void and of no effect. That the Sheriff then, in pursuance of the said understanding and agreement, put up the said lots .for sale by virtue of the execution against the complainant, and that said N. Ryerson, at the instance and as the friend and agent of the complainant, bid in two of said lots, the Butler Seward lot, and the lot at the south end of the farm. (The deed from the Sheriff to Smith, above stated, for two lots conveys the Butler lot' and the turnpike lot.)
    That at the same time, and under the same arrangement and understanding, by virtue of the execution of the Bank against the Colfaxes, the Sheriff sold the right and interest of the Col-faxes, if any, in the said two lots, to the said Ryerson, for the nominal sum of $1 for each lot.
    That on the sale under the execution against the complainant the said Vanderpool bid off the other lot.
    That afterwards, in June then next, the Colfaxes and the complainant paid the entire claim of the Bank; it being paid mostly by the surplus money arising from the sale of said mortgaged premises, the amount of that sale being more than the mortgage debt.
    That neither Ryerson or Vanderpool ever paid anything on account of the lots so bid off by them, respectively, or obtained any deed, or directed any deed to be made to any other person.
    That Smith, learning that the complainant’s said lots had been sold by the Sheriff, applied to and procured from the Sheriff, without the knowledge or consent of Ryerson or the complainant, deeds for the said two lots so bid off by Ryerson. That Smith represented to the Sheriff, as the complainant is informed and believes, that Ryerson bid off the said lots for him, Smith, and as his agent; and that Ryersson was willing, and had directed him to obtain deeds for the said lots ; and that the Sheriff, not knowing that the claim of the Bank was satisfied, was induced to and did receive the amount of the bids from Smith, and deliver to him deeds for the said two lots, upon the condition and understanding, as the complainant was informed, that the Sheriff would hold the money therefor, and if the delivery of the deeds to Smith should prove to be wrong, they should be returned and the money refunded; and that the money remained in the hands of the Sheriff until and at the time of his death, in about 1830.
    The bill then states the death of Smith, in 1826; and the sale of his real estate by commissioners, on the 3d of April, 1827; and that the defendant Margerem became the purchaser, and received from the commissioners a deed which included the said two lots of the complainant.
    That Margerem, in 1827, besides taking possession of the lands which belonged to Smith, in his lifetime, also entered upon, and took possession, unlawfully, of the complainant’s said three tracts before mentioned.
    That, as soon as the complainant was informed of such entry and intrusion, ho went to Margerem and remonstrated with him; that Margerem said he would make inquiry, and that if said lots belonged to the complainant he would buy them of the complainant ; and that he, Margerem, would investigate the matter; that the matter was delayed from time to time, at'the request of Margerem, until about three years had elapsed, when the complainant insisted on knowing what he intended to do, and Margerem then stated that he thought the complainant had no right to the said lots, and refused to give them up to the complainant.
    That, as soon after as he could command funds to do so, he employed Thos. C. Ryerson, since deceased, as his counsel to aid him in the recovery of the said lots. That said T. C. Ryerson was shortly after appointed a Justice of the Supreme Court; that he then employed other counsel, and was about to commence a suit for the recovery of his said lots, when Margerem expressed his willingness to submit the matter to arbitration, and wished the complainant to defer suit until he, Margerem, could confer with his counsel in respect to submitting the matter to arbitration ; and the complainant did so. That Margerem, after thus prolonging the matter, finally refused to submit it to arbitrators. That Margerem has been in possession of all said lots from 1827 to this time.
    The bill prays that Margerem may be decreed to deliver possession to the complainant, and to account for the rents and profits ; and that the deed from the Sheriff to Smith for the said two lots bid off by Ryerson may be declared void; and that the complainant’s right and title to the said lots may be established; and for such further and other relief &c.
    The defendant, in his answer, admits, that the complainant, for some time previous to,1820, was in possession of a farm and íráot of land situate in Vernon and Hardiston, as set forth in the bill; but of how much land, or by what title, agreement or authority, he does not know; nor has he any knowledge of any such article of agreement between the Colfaxes and the complainant ; nor of the existence of any articles of agreement between Joseph Sharp and John Seward for the sale and conveyance of the said 20 acre turnpike house lo,t.
    He 'says he is informed and believes that the Sheriff, by virtue of a decree and execution in the foreclosure suit of Samuel S. Seward, sold the mortgaged premises, on the 11th November, 1820 ; and that Nicholas Ryerson then bid for and became the purchaser of the same, for $5,610. And,he is informed and believes that Ryerson, in so bidding and becoming the purchaser of the mortgaged premises, was not acting as the agent or on account and behalf of the complainant, but for the benefit and on behalf of himself and said Wm. Smith.
    He admits that Ryerson, on the 28th of November, 1820, assigned to said Smith all the right and interest he had acquired in Said mortgaged premises by his said bid and purchase, for $300, and that the Sheriff, by deed dated November 29, 1820, conveyed the said mortgaged premises to Smith.
    He says he has no knowledge or belief that the complainant was to become a joint owner with Smith in the purchase of said mortgaged premises ; but says he is informed and believes that, about the time or soon after the said mortgaged premises were conveyed to Smith, Smith took possession thereof, except the principal dwelling house and three lots of land adjacent theretó, containing together about 50 acres, which, by his permission, the complainant retained and occupied as tenant to Smith, until Smith, on the 22d of February, 1825, recovered a judgment in ejectment against the complainant; and afterwards, on or about July 13,-1825, the Sheriff dispossessed the complainant, and delivered the possession, of the said three lots to Smith.
    He-says he is informed and believes that Smith, when he purchased said mortgaged premises and afterwards, lived in New York; but that his servants, agents and tenants occupied the said mortgage premises, except the said three lots retained by the complainant.
    He speaks of the reference in the suit of Haythorn v. Smith’s administrator; and says that all matters in difference between Haythorn and Smith were referred; and that no claim to any interest in the mortgaged premises was set up by the complainant.
    He admits that the Butler Seward lot, of about 29 acres, and not 39 as stated in the bill, and the lot of 25 8-100 acres on the south end of the farm, and the 20 acre lot near the turnpike house, were not included in the mortgage to S. S. Seward, and were not conveyed by virtue of said decree and execution to Smith.
    He admits that the complainant left the promises and moved to Paterson about July 12, 1825.
    He admits the sale by the Sheriff under the judgments and executions of the Bank against the complainant and the Col-faxes, respectively, of all the right, title and interest of the complainant and of the Colfaxes in the said Butler Seward lot and the said lot at the south end of the farm, containing, after deducting 4 41-100 acres, sold by the complainant to George Kanouse, 20 61-100 acres ; and that at that sale N. Ryerson bid for and became the purchaser of the said two lots; but he denies that N. Ryerson bid for and purchased the same for or on behalf of the complainant; but says he is informed and believes, and therefore states, that said Ryerson was then acting as the agent and on behalf of said Smith.
    He says he has no personal knowledge that there was any agreement or understanding that the said sale was upon any condition respecting the payment of the money due the Bank, and never heard of any such condition until the complainant mentioned the same to him, as in the answer afterwards stated.
    He then states that the Sheriff delivered to Smith deeds of all the complainant’s right, title and interest, and of all the Col-faxes’ right, title and interest in the said two lots; and that the Sheriff, in both said deeds, has recited that said N. Ryerson bid for and purchased the said property for and on behalf of and to the use of said Smith.

      He admits that Smith died in 1826 ; and that, on the 8d of April, 1821, the commissioners appointed to divide his real es- . tate offered for sale the said Seward farm, together with several tracts adjoining the same, whereof Smith had died seized and possessed, a map whereof was then and there exhibited, showing the metes and bounds of all the said tracts or parcels of land so by them offered for sale.
    He says that, relying on the information derived from the inspection of said map and from several of Smith’s heirs who were familiar with his lands and knew what he had possessed in his lifetime, and also on the information of the said commissioners, be was induced to and did bid for and become the purchaser of said farm and tract of land, for $5,100, by him afterwards paid to the commissioners; and the commissioners, by their deed dated August 1,1821, conveyed to him the said lands and premises ; and therein and thereby, among other tracts of land, conveyed the said Butler Seward lot, and the said lot of 25 8-100 acres, including the 4 41 — 100 acres sold by Haythorn to Kanouse thereout, and which 4 41-100 acres Kanouse afterwards sold to Smith.
    That, soon after the said commissioners’ sale to him, to wit, on or about the first part of May, 1821, as he was then informed and has since been informed and believes, took possession of all the lands described in said map and the said commissioners’ deed, and which said Smith had occupied in his lifetime and up to the time of his death; and says he has ever since been in the quiet and peaceable possession of said lands and premises.
    That the 20 acre lot near the turnpike house was never, as he is informed and believes, in the possession of Smith; and this defendant never had or took possession of it until or about April 29,1842, when Joseph Sharp sold and conveyed it to him for $145.
    That the complainant, in all the claims made against him, and in all the various conversations on the subject of those lands, as in the answer afterwards stated, never mentioned to him any claim or demand against him for the said turnpike house lot; and that the first information he had of any such claim was from the bill; and that he is informed and believes that Sharp was and is under no obligation whatever, in law or in equity, to convey said lot to the complainant.
    He admits that the complainant spoke to him and made claim to the other lots, that is to say, the Butler Seward lot and the lot at the south end of the farm ; but never, to his knowledge, recollection or belief, till some time in 1837.
    He says he was greatly surprised at the said claim,' and thereupon told the complainant that he supposed he had a good title to all the lands he possessed : that he had bought upon the representations of the heirs of Smith and of the said commissioners ; but had never examined the titles, nor had them examined expressly for himself ; but that he would do so ; and if he found that the complainant had any right to any part of said lands, he would cheerfully give it up to him or pay him the value of it.
    That he is informed and believes that his counsel examined his titles to the said three lots ; and when he, the defendant, next saw the complainant he told the complainant he had not been able to discover that the complainant had any title to the said lots or either of them. That the complainant then stated to him that the said deeds from the Sheriff to Smith for two of the lots were fraudulent and void for the reason stated in the bill. That he, the defendant, then said he would also examine into that; and, of course, he had to take time for that purpose. That he thereupon did inquire and examine into the same; and could get no information that induced him to believe the said deeds fraudulent. And as soon as he could, with all reasonable diligence, satisfy himself on the subject, he told the complainant of the result of his inquiry, and that he was not willing to give up the said lands. And he says he has made no unnecessary delay in the matter.
    He denies that he has ever expressed any willingness to submit the said matters to arbitrators ; but he always declined such submission, stating that he had bought the property for a full and valuable consideration without the knowledge or suspicion of any defect of title to any part of it. But he admits that, on one occasion, on his being urged by the complainant to submit the matters to arbitrators, he told complainant he would leave it to his counsel to direct him what to do. And upon being •advised not to do it, he took the earliest opportunity of informing the complainant of the advice he had received.
    He denies that the complainant ever offered to sell him the said lands, or to come under any agreement respecting the same; but, on the contrary, he says that, being willing to quiet all claims to his land and to buy his peace at a reasonable price, he has frequently asked the complainant what value he set upon his said claims, and how much he would take for the said lands whether he had any right to them or not; but the complainant never would make him any direct answer to such inquiries.
    He says he is informed and believes that, while the complainant was in possession of the 50 acres as tenant to Smith, and when Smith was desirous of getting possession thereof, he, Smith, offered the complainant to convey to him 200 acres in Oswego county, New York, and a yoke of oxen and a wagon, if he would qiut all the said premises and give up the possession of and all claims to the same to Smith ,• but that the complainant hesitated about accepting said proposition, and delayed giving an answer until Smith brought his said ejectment.
    He says he is informed and believes, that the said ejectment was set down for trial in November term, 1824, and that the complainant relinquished his plea, and judgment was entered aginst him at the February term, 1825, of the Supreme Court. That, after the complainant had relinquished his plea, Smith, through the importunity of Mr. Frelinghuysen, Haythorn’s counsel in that suit, and as a mere gratuity to the said Haythorn, and in consideration of his misfortunes, entered into an agreement with him as follows: <c I, William Smith, of New York, for and in consideration of one dollar, and other good considerations to me paid by Thomas W. Haythorn, of Sussex, do covenant, grant and agree to and with the said Thomas, to grant, bargain and convey to him in fee simple, by good and sufficient deed, 200 acres of land to be selected by said Thomas from and out of a tract of land owned by said William Smith in the Scriba patent (&c.), excepting from the said right of selection lots 68 and 74, the said 200 acres to be selected in a body; and the said William agrees to execute said deed as soon as the said Thomas shall notify him of the selection. And the said William further agrees to deliver a yoke of oxen, a yoke and chain and a two-horse wagon, in thirty days from date, to the said Thomas.
    Nov. 28, 1824. . WM. SMITH.”
    Witness, Job S. IIalsted.
    And delivered the said agreement to the said complainant.
    He says he is informed and believes that, about the time of the making of said agreement, and afterwards, the complainant declared to divers persons that Smith was a friend to him, and, notwithstanding all their differences, had agreed to provide well for him by giving him a good farm in the State of New York ; that he had given up all the property here, and was going to the land Smith had given him.
    He says he is informed and believes, that the complainant, after Smith’s death, brought his action against Smith’s administrator, to the term of August, 1828, of the C. P. of Sussex; and that the matters in controversy in said suit, and all other matters in dispute between the said parties, were by rule of said Court, made at May term, 1830, referred to referees ; who made their report at the term of August, 1830, and thereby reported that they found due the complainant $127 84 damages besides costs, and that judgment was entered for the complainant for the said sum. And ho says he is informed and believes, that the complainant, among other things, upon the said reference demanded $1,500 for damages he alleged he had sustained by reason of Smith’s not having conveyed to him the said lands in Osw.ego county, New York; but that the said claim was not allowed, as Haythorn had never made any selection of land. But this defendant is informed and believes, that said land was afterwards conveyed to Haythorn by or on behalf of the heirs of said Smith.
    He says he is informed and believes that, during the progress of said suit and reference, Haythorn made no claim to the said tracts now claimed by him of this defendant, or either of them, nor to any damage or charge for the use or occupancy thereof by Smith or his hands.
    And the defendant submits, whether any claim which the complainant may possibly have to the said tracts of land now claimed by him is now barred by the statute of limitations, inasmuch as he, the defendant, and those under whom he claims have been in the peaceable and quiet possession of the same for more than 20 years next before the commencement of this suit. And he prays the benefit of the statute as fully as if he had pleaded it.
    Testimony ivas taken on both sides ; and the cause was heard on the pleadings and proofs.

      R. Hamilton and F. T. Frelinghuysen for the complainant.
    They cited 2 Story’s Eq., sec. 769, 770, 1; 116., sec. 175; 2 John. Ch. 585.

      D. Haines and P. J). Vroom for defendant.
    They cited 7 Halst. Rep. 336; 2 Green’s Rep. 567; 8 Wheat. 326, 336, 7; 8 John. Rep. 137; 3 John. Ch. 147, 377; 8 Cranch, 462; Den. v. Hunt, 1 Spencer’s Rep. ; 2 Sugd. on Vendors, 427.
   The Chancellor.

The agreement of sale and purchase between the Colfaxes and Haythorn included three lots which were not covered by the mortgage to Samuel S. Seward, namely, the Butler Seward lot, the lot at the south end of the farm, and the turnpike house lot.

Haythorn went into possession of these, as well as of the part mortgaged to Samuel S. Seward, in 1814, under the said agreement of sale and purchase between the Colfaxes and him.

In November, 1820, the lands mortgaged to Samuel S. Seward were sold, under a decree and execution for the sale thereof, to satisfy Seward’s mortgage; and the title to these mortgaged premises became snbsequently vested in Smith.

In May, 1821, the said three lots not included in the mortgage were exposed to sale by the Sheriff, on judgments and executions in favor of the State Bank at Newark against Haythorn and the Colfaxes ; and two of them, viz., the Butler Seward lot and the turnpike lot, were struck off to Nicholas Ryerson; and the third was struck off to the Bank. No deed was ever made to the Bank for the lot struck off to them ; nor was any deed ever made to Ryerson for the lots struck off to him.

The debt due the Bank, and for the payment of which these three lots were so exposed to sale and struck off, was afterwards paid by Haythorn and the Colfaxes; the judgments were obtained on notes of the Colfaxes on which Haythorn was indorser. Nothing was ever paid by Ryerson or the Bank for or on account of the lots so struck off to them, respectively.

Jn August, 1821, Smith obtained from the Sheriff deeds for the two lots so struck off to Ryerson, and paid to the Sheriff the sums for which the said two lots were, respectively, struck off. That money remained in the hands of the Sheriff until and at the time of his death; and is still in the hands of his representatives.

Afterwards, the commissioners appointed to divide the estate of Smith after his death sold all his real estate to Margerem, the defendant, at public sale; and included in said sale the Butler Seward lot and the turnpike lot, for which Smith had so obtained deeds from the Sheriff.

As to the lot at the south end of the farm, then, the case is simply this : Haythorn went into possession of it under a written agreement under seal for the purchase of it from the Col-faxes, and paid the purchase money, and remained in actual possession of it until he removed to Paterson, in 1825; and neither Smith nor Margerem ever acquired any title or pretense of title to it. Neither Smith nor Margerem has ever had anything to oppose to Haythorn’s right to the possession of this lot, except a possession, if they had possession, without any title or right of possession. Haythorn’s prior possession was at all times sufficient for his recovery of the possession of it from them or either of them by ejectment. And he had not only the prior possession, but that was accompanied with the right of possession, under the said agreement between the Colfaxes and him. I do not see that the fact that Haythorn had not obtained a deed from the Colfaxes of the legal title and that in that view his title was only an equitable title is any reason why this Court should be applied to to give him possession as against an intruder upon his possession. It would have been proper for him to come here to obtain the legal title from the Colfaxes; but that is not the object of this bill; the Colfaxes are not parties to the bill. The prayer of the bill is for possession as against Margerem. His remedy was by ejectment.

As to the turnpike lot, the defendant says he is informed and believes it was never in the possession of Smith; and that he, the defendant, never held or took possession of it until April, 1842, when Jos. Sharp sold and conveyed it to him. If, then, Haythorn is entitled to the possession of this lot as against the defendant, he has a plain remedy by ejectment.

If, by reason of the state of things between Jos. Sharp and John Seward, (whose interest in or claim to a title for said turnpike lot, from Sharp, is said to have passed from said John Seward to the Colfaxes, and from the Colfaxes to Haythorn,) Sharp was under no obligation to make a title for said lot to John Seward, or to any one claiming his interest, but was at liberty to convey it to whom he pleased, then his grantee cannot be disturbed in the possession of it. As to this lot the remedy of Hay-thorn is either by ejectment against Margerem, if, under the circumstances, that shall be deemed the proper remedy, or by bill against Sharp for a conveyance or compensation, making all necessary parties defendants. I do not see how this Court can take any action in reference to this lot on a bill against Marge-rem alone. The question between Sharp and John Seward, or the assignees of his interest, cannot be settled on a bill to which Sharp’s representatives are not parties.

There seems to have been a misapprehension on the part of the complainant as to the two lots struck off to Ryerson on the sale under the Bank judgment and execution. The bill states that' at that sale the Butler Seward lot and the lot at the south end of the farm were struck off to Ryerson; and the answer admits this; but the Sheriff’s deeds to Smith for the two lots struck off to Ryerson at that sale show that they were the Butler Seward lot and the turnpike lot, and not the lot at the south end of the farm ; and Margerem, at the commissioners’ sale of Smith’s lands, bought the lots which had been so deeded by the Sheriff to Smith. But the defendant, in his answer, says he is informed and believes that Smith never had possession of this lot, and that he, the defendant, never took possession of it until 1842, when he took possession of it under a deed from Sharp to him ; and this is the title under which the defendant claims to hold this lot. Now, Sharp may or may not have been bound to convey this lot to John Seward, or the assignees of his interest in it. It is clear that the Court cannot on this bill, to which Sharp’s representatives are not parties, give Haythorn any relief as to this lot.

As to the Butler Seward lot, the case seems to he this: It was not included in the mortgage to Samuel S. Seward. In May, 1821, it was struck off to Ryerson at the Sheriff’s sale under the Bank execution. On the 20th of August, 1821, the Sheriff made a deed for it to Smith. On the 23d of November, 1824, Smith recovered a verdict in ejectment against Haythorn for that part of the premises mortgaged to Samuel S. Seward of which Hay-thorn then remained in possession. On that day Smith gave to Haythorn a writing by which, in consideration of $1 and other good considerations, he covenanted, granted and agreed with Haythorn to convey to him in fee 200 acres of land in the Scriba patent, Oswego county, New York, to be selected in a body by the said Haythorn, and to execute the deed as soon as the said Haythorn should notify him of the selection; and Smith, by the said writing, further agreed to deliver to Haythorn a yoke of oxen, ox yoke and chain, and a two-horse wagon, in 30 days from the date of said writing. These latter articles appear to have been delivered to Haythorn shortly after. Judgment in the ejectment was entered at the term of the Supreme Court succeeding the verdict; and in July, 1825, Haythorn was dispossessed of the premises for which the ejectment was brought; and thereupon moved to Paterson. This Butler Seward lot, though not included in the mortgage to Samuel S. Seward, lay within the enclosures of the farm.

In 1826, William Smith died. Commissioners were appointed to make partition of his lands ; and on a report that the lands could not be divided without prejudice, the commissioners were ordered to sell them at public sale. The defendant, Margerem, was the purchaser at this sale. This Butler Seward lot was included in this sale ; and the commissioners executed to Margerem a deed for the land so sold by them, including the Butler Seward lot, on the 1st of August, 1821; and Margerem, thereupon, went into possession.

Previous to May, 1830, Haythorn sued the administrators of -William Smith, in the Common Pleas of Sussex, in an action on •the case, for work and labor, &c. In the term of May, 1830, of that Court, it was ordered by the Court, with the consent of the parties, that all matters in dispute and difference between the parties be referred to the award, order, arbitrament, final end and determination of Jos. E. Edsall, Robert A. Lum and David Ford. On the 16th of August, 1830, the referees reported that they found due to Haythorn, from the administrator of Smith #129 84, with costs; and further reported, that as respects a certain article of agreement for the conveyance of 200 acres of land by Wm. Smith to Haythorn, made Nov. 23, 1824, they took the matter contained in the said articles into consideration, and were not influenced in making out their report by anything contained in that article ; and that they could not allow to Hay-thorn his claim for damages for the neglect of said Smith to execute the conveyance for the said land; Haythorn having failed or neglected to make his selection and notify Smith thereof.

On the 5th of May 1835, Thomas C. Ryerson, as late Attorney of Thomas W. Haythorn, in a controversy between him and the Administrators of Smith, deceased, gave a writing by which he acknowledged to have received from Elias L’Hommedieu, in behalf of the said Administrators of Smith, a deed for 161 1-4 acres of land in Oswego county, New York, executed to said Haythorn, and also #47 41 in money; which deed, he in pursuance of instructions from the said Haythorn, accepted for him in full satisfaction and fulfillment of a written promise made by said Smith in his lifetime to the said Haythorn, for the conveyance of two hundred acres of land in the State of New York.

Matters stood in this situation until the filing of the bill in this cause, on the 25th of October 1842; the defendant, Marge-rem, having been in possession of the Butler Seward lot, under his deed from the said commissioners since August 1827, a period of 15 years, and Smith in his lifetime having been in possession of this Butler Seward lot from July 1825, when Haythorn removed to Paterson till his death, claiming title thereto under his deed from the Sheriff in Aug. 1821; and as to the possession of this lot between. Aug. 1821 and July 1825, the evidence of an exclusive possession hy Haythorn is not very satisfactory.

Here, then, is a period of at least 17 years, during which Margerem, and Smith, under whom he claims, have been in exclusive possession of this lot prior to the filing of the bill, claiming title under deeds. This would not he conclusive against Hay-thorn’s report either at law or in this Court; hut it shews a staléness in the present claim, which added to the facts before stated, should admonish the Court not to venture on any doubtful ground or ahead of jurisdiction, or any exercise of a jurisdiction properly belonging to a Court of law, for the purpose of giving the Complainant relief in this Court.

The ground on which the Complainant comes here seems to ho that 1ns title is only an equitable title, he never having obtained a deed from the Colfaxes, and that the deed from the Sheriff to Smith for this lot, struck off to Ryerson at the Sheriff’s sale oñ the Bank execution, was improperly obtained by Smith from the Sheriff, and was illegally given by the Sheriff to Smith; that it was agreed, at and before this sale, between the persons there representing the bank and Haythorn and the Sheriff, that the deed should not he delivered, but that time should he given, notwithstanding the striking off the lots at the sale, for the payment of the hank judgment; and that if it was paid within some short time no deed should he executed by the Sheriff; that the bank judgment was paid before the Sheriff made the deed to Smith; and therefore the Sheriff had no right or authority to make a deed, even to Ryerson, the person to whom this lot was struck off; much less to Smith ; and that the deed was procured hy Smith from the Sheriff hy misrepresentations made by him to the Sheriff, and was therefore fraudulent and void.

And the complainant comes into this court praying that Margerem, to whom this lot, with other lands, was conveyed hy the commissioners who sold Smith’s real estate, may he decreed to deliver possession of this lot to the complainant; and to account for the rents and profits of it; and that the deed from the Sheriff to Smith therefor may be declared void, and that the complainant’s right to the said lot may be established.

If the complainant was in possession, it may be that a, bill would be entertained in this court for the purpose of setting aside a deed obtained under such circumstances as those under which Smith obtained a deed from the Sheriff for this lot. A party in possession may come into this court under proper circumstances to remove a cloud from his title. But I am not aware that a party out of possession can come here as against another in possession, and claiming title under a deed, and obtain a decree declaring the defendant’s deed void and putting the complainant in possession and giving him an account of the rents and profits. If the deed from the Sheriff to Smith was void, it was void at law as well as in equity ; and the complainant’s prior possession and right of possession under the agreement between the Col-faxes and him was sufficient for him to maintain ejectment against Smith. And, in ejectment against Margerem, the questions, whether the case was. within the principle that a bona fide purchaser from a fraudulent grantee will hold unaffected by the fraud, and whether Margerem was such a bona fide purchaser, were questions as proper for a court of law as for this court.

This court could not grant the relief sought by this bill without declaring that the title set up by Margerem is bad, and that the complainant is entitled to the possession of the lands against that title. This, I conceive, would be going beyond the province of this court.

Smith had a deed for this lot from the Sheriff, and came into possession of it at least as early as July, 1825, when Haythorn moved to Paterson ; and he died in possession, in 1826. Margerem bought it at the commissioners’ sale of Smith’s estate •, and has been in possession ever since. If there were any equities in the case proper to be settled by this court, after a trial at law, this court might retain the bill until the question of title should be settled at law. But an ejectment, with the action for mesne profits, if judgment should be recovered in the ejectment, would afford full relief. There would be nothing left for the action of this court. If the time which has elapsed would now be a difficulty in the way of the complainant, at law, that difficulty cannot affect the determination of this court as to the propriety of ■its granting the relief sought by this bill.

Bill dismissed.