SOWLES fl. WITTEBS.
SOWLES t1. 'WITTERS
(Oi/rCt/lttOourt, D. Vermont. November 9, 188t.)
Where complainant has a decree in equity that defendant pay her dividends on stock held by her, and defendant has against complainant an unsatisfied judgment at lawfor an assessment on said stock, the court, on motion, will order the amounts to be paid under the decree applied on the judgment, though the judgment was a former term, and complainant intends to appeal therefrom.
In Equity. Motion to sei oft' decree inequity against a judgment at law obtained at a former term by defendant against complainant. Kittredge Haskins, for oratrix. Ohe8ter W. Witters, prolBe. Edward A. Sowles, pro 8l.
WHEELER, J. The oratrix has an order for a decree that she is a creditor of the First National Bank of St. Albans to the amount of $26,034. 75, and that the defendant pay her dividends thereon. Sowles v. WitterB, 39 Fed. Rep. 403. The records of this court show that the defendant has an unsatisfied judgment against her for an assessment upon her stock in the same bank. Witters v. Sowles, 38 Fed. Rep. 700. The defendant moves, on settlement of the decree, that the amounts to be paid to her be decreed to be applied on the judgment against her, instead of paid to her in The oratrix objects because the judgment was at a former term and at law, and because she intends to prosecute a writ of error and an appeal from the judgment and decree. The decree would not disturb the judgment of the former term, but only satisfy it so far; and the judgment is in this court, although on the law side, and can' be found by mere inspection of the record without trial. A court may al,. ways inspect its own records to ascertain what is there, although it may not have power, after the terms, to alter judgments and decrees shown by them.. The writ of error does not vacate the judgment, and cannot now operate as a supersedeas. If the judgment is enforced, she will pay its amount to the defendant; if the decree is enforced, he will pay the amount of these dividends to her. The receipts and payments are in the same right in each behalf. Circuity will be avoided, and the judgment and decree be both carried out, by making the decree for the application of the dividends upon the judgment. The power of the court to so fTame its. decree as to make this set-off seems to be ample. Oonable v. Bucldin, 2 Aikens, 221; Rix v. Nevins, 26 Vt. 384; 8eUick v. Munson, 2 Vt. 13. Let the decree be so drawn and entered·
Pef!'lAd.a,P.t,. Wh9lYas «:xec,lltor of hillfJlt'\1er's obtainedIllollel from 8 bank 011 the chepk,oflloth,lrd perSon, with he paid mortgagesdn hilj father's land, and thereof to hiInself, l'eceiving also a deed to the land frolIl tlle mortgagee. ',He depositeqthe mortgages with the bank a,s security "for the check. On its dishpnor he obtained money from plabitiff's' assignor with which to pay it, and assigned to him the mortgages, quitclaim deed; and a warranty deed to another tract, as security. The check was also sent to plaintiff's assignor, but ihe returlled,it payee. ' !f<Jw"that the 10!Ul was made and Dot to the drawer of the the securities bound defendant and the la1llL
In Equity. On bill for foreclosure. Edwin B. Gager, for plaintiff. Wm. F. Hurlbut, for defendants.
J'. This is ll. bill in eqnity for the foreclosnre of mortgages llPtm real estate. Prior to April 11, 1881,. Joseph W. Hurlbut had mortgaged his homestead in Winchester, Oonn., to the Winsted Savings Bank, by two mortgages, to secure two notes for $1,000 and $500, respectivel!, RIld had died leaving a last wHl, by which he appoiIited his son Wilham F. Hurlbut his executor, and devised one-third of said land to him, and one-third to him as trustee for WarrenP. HUrlbut, and said savings bank had obtained Ii decree for the forecwsure of said mortOn said day Joseph M. Hurlbut, of Brooklyn, N. Y., another son of Joseph W. , delivered to said William F. a check of Henry' A. Taylor upon a bank in Rochester, N.Y.,.for the sum of $2,600, to the order Of J' oseph M., and by him indorsed,' and' also subsequently indorsed by said William F. The money upon said check was advanced to' William F .by the Hurlbut National Bank of Winsted, and, with the exceptionol about $30, was paid to said savings batik for an assigtlment of said mortgages, and in payment Of a mortgage of about $500 upon another piece of land which had been executed by William F. individsavings bank quitclaimed their interest in said mortgaged homestead 'to William F'. The two mortgage notes ana deeds of said preri;lises were delivered to said national bank to be held in escrow for the time;, and, to become, if need be,security for the payment of said was unpaid, and earnest demand was immediately made William F. for payment. Joseph M. induced Henry F. Shoe",to' undertake to loan to WilHam F. the money to take up the chedk; Shoemaker sent his lawyer; Theodore B. Gatl;ls, to Winsted to make said loan; if the' sectirity sufficient. William F. wanted that Taylor should be Shoemaker's debtor, and that the securities should be assigned to Shoemaker, as security for the payment of Taylor's debt. Gates' thereupon returned to New York, but Shoemaker refused to accept Taylor as his debtor; and Joseph M. ineffectually attempted to induce Taylor to agree to indemnify William F. Thereupon, on April 26, 1881, Gates sent to William F. a certified check for $2,607.25, the amount of