Volume 1 — Parsons's Equity Cases

<p>This was a bill in equity brought by Samuel Lanning, against Juliann Smith, widow, and others, heirs-at-law of John George Smith, deceased. It set forth that on the 12th day of September, 18BB, the complainant was seised in fee of a house and lot in Philadelphia (describing it), and being so seised, he mortgaged to John George Smith to secure the payment of $2500 thereon as expressed in the mortgage, a copy of which was attached to the bill, and that the transaction was a mortgage, and nothing else. It was further stated in the bill that on the 26th day of September, 1839, the complainant was in arrear for interest on said mortgage, by reason of his poverty; but being willing to put the said J. G. Smith into possession of the premises, so that he might collect the rents, made to him a conveyance of the premises, which was duly recorded and a copy annexed to the bill: that, at the time of the execution of the deed of conveyance, there was no money paid but the mortgage-debt of $2500, and the interest amounting to the sum of $375, was the sole consideration.</p> <p>It was also averred in the bill, that on the same day the said Smith executed to Lanning a deed of covenant, in which, after reciting the mortgage, describing it as intending to secure to him the payment of the said sum of $2500, with interest, and the said Lanning being unable to him the interest annually upon said mortgage, he had conveyed the premises 'which were mortgaged to said Smith, absolutely in fee-simple; and that said Smith, being willing and anxious to befriend and accommodate said Lanning, agreed and covenanted, for himself, his executors, &c., and heirs, that if the said Lanning should at any time, within twelve months from the date thereof, pay or cause to be paid to said Smith, his heirs, executors, &c., the whole of the aforesaid debt of $2500, together with all the interest then due, and which should accrue thereon to the time of payment, and the expenses incurred in the conveyance, then the said Smith, his heirs, &c., should and would immediately, thereupon, at the proper cost of the said Lanning, make and execute such proper and sufficient deed or deeds, conveyances, or assurances in the law, for the reconveying of the said premises, as his counsel should reasonably advise or require; which said covenant was one of the exhibits attached to the bill.</p> <p>It was then averred that J. G-. Smith was dead, and that the defendants were his widow and heirs.</p> <p>The bill then set forth that on the 26th day September, 1840, the said Lanning was ready to pay the said mortgage-debt, with the interest due thereon, and the expenses according to the said deed of covenant, and went to the known and accustomed place of business of the deceased, and there saw William H. Smith, the eldest son of the deceased, told him his business, and that he was then prepared to pay off the said mortgage, and whatever else he was bound to pay, provided he could be reinstated in said estate; when said William declared he had no power in the matter, and could not do anything. The bill averred that further proposals were made as to the business, but said William would not do anything, and told the complainant that he must see his counsel, and that he should call again in the afternoon. The bill averred that he did call, when he was told it was too late, and that he could and would do nothing; that there were so many heirs in various parts of the country it was impossible to do anything. The bill charged that the complainant was entirely defeated in his efforts to pay off said mortgage-debt on the 26th day of September, 1840: The bill prayed for general relief at the hands of the Court.</p> <p>The answer admitted that complainant was seised of the jrre-mises in 1883, and mortgaged them to J. Gr. Smith; and that on the 26th day of September, 1889, he conveyed the same to said Smith, and that there was no other consideration paid therefor than the mortgage-debt and interest due thereon; and that said J. Gf. Smith executed the covenant for a reconveyance mentioned in the bill, and that said Smith was dead. The defendants in their answer stated they did not know that, on the 26th day of September, 1840, the said complainant was ready to pay said mortgage-debt and interest due thereon, and the expenses according to said deed of covenant; but that Lanning did not make to them, the defendants, or any of them, a tender of money, or exhibit any, nor did they see any in his hands or possession that day; that true it was he came to the place of business mentioned in the bill, and said William IT. Smith recollected that Lanning said he was prepared to pay as soon as the papers were ready, but that he did not make to them, or either of them, a tender of any money, or show them any, nor did they at that time see any money in his possession; and the said William H. Smith did say that he and his brother were only two parties, and could do nothing, and desired said complainant to call again, or in the afternoon, and they would see their attorney, which they did, and when he called again they told him their lawyer said it was too late, and added that they could do nothing; also that there were numerous heirs in the western country and many other places, or words to that effect.. The defendants stated in their answer that the said J. Gr. Smith, in his lifetime, did not consider the premises worth more than $3000; there was also a statement of the rents received and expenses incurred annexed to the answers.</p> <p>The case was set down for hearing, and argument on bill and answer alone.</p> <p>who contended that his client had the right to redeem, and cited 7 John. O. R. 40; Coke Litt. 205; 4 Kent Com. 88, 143.</p> <p>contended it was not a mortgage: cited 15 S. & R. 135; 2 Kent, 129; 2 John. C. R. 34; 15 Yes. 418.</p>

<p>On the reference to an auditor to settle and adjust an account of executors or administrators of an estate, he has no authority to adjust disputed claims among the executors as to the proportions of commissions among themselyes. He should simply decide upon the aggregate of commissions with which the whole estate can be charged.</p> <p>Where a testator said in his will, “H. S. will be indebted to my estate at my demise, as will be seen by my ledger; the payment of said debt to be made when entirely convenient to him, free from any charge of interestHeld, that this does not mean an ability to pay in the legal acceptation of the phrase; but when it was convenient to malte the payment without producing severe pecuniary embarrassment. The period for such payment as to time, is left to the discretion of the legatee, but must be exercised bond, fide; and if it can be shown at anytime, that, regard being had to the pecuniary means of II. S., payment ought to be convenient, then the period for coercing the payment of the debt has arrived. Such is a question of fact, and ought to be affirmatively shown by those who seek to enforce it. When it can be shown that the refusal to pay the debt is merely colourable, and he has the means ample for payment, then such refusal would be mala fide, and he should be coerced to pay.</p>

This case arose in tbe Orphans’ Court on exceptions to the report of an auditor settling the account of David Sargeant, a trustee for Esther Barton, who was created such trustee under the will of Elizabeth Sargeant, deceased. All the facts necessary for a full understanding of the questions decided by the Court, are so clearly stated by the Judge who delivered its opinion, that it seems unnecessary to give any further statement in the report.

This was a bill in equity, setting forth that Thomas Clifton, the plaintiff, entertaining a wish to visit England, his native country, and being desirous to make some arrangement for the protection of his property during his absence, and for the proper mode of so doing, applied to Davis, the defendant, for his advice as to • the means by which it could be effected.

The facts of this cause are so fully stated in the opinion of the Court, that it is deemed useless to furnish a more extended synopsis of them. who argued the case on exceptions to the report of the master, that this was a case of unequal bargaining. Crawford was a clergyman and schoolmaster, and not expert in contracts. Dalzell was an expert, familiar with bargains, and the subject connected with sales.

This was an application by William Conrad, the committee of one Samuel Eckstein, a lunatic, praying for an injunction against Ann Hertzog, administratrix of Peter Hertzog, deceased, commanding to stay her proceedings upon an execution which had been issued against said lunatic, after he had been declared such, although the judgment was obtained prior to the finding of such inquisition.

<p>Where an account has been regularly filed in the proper office, the Court will not compel the accountant to file a second, unless it is shown that the first is lost; but will presume that is in the proper office, until the contrary is shown.</p> <p>Quaere, whether even if the first has been lost without any default of the accountant.</p> <p>None but a real creditor, or some one who has a direct interest in the estate, can compel an assignee to file an account, under the assignment laws of this state.</p> <p>An administrator de bonis non is not such a creditor. The account of the first administrator must first be settled by his representatives in the Orphans’ Court, and the indebtedness of the deceased administrator ascertained by the decree of that Court, before any such claim will be ascertained. The indebtedness of the administrator of an estate cannot be tried collaterally, but must be ascertained by the Court having jurisdiction of the estate, on an account filed by the legal representatives of the deceased administrator.</p> <p>After twenty years the law presumes the payment of all debts, whether by bond, judgment, or decree; also, of legaoies. After the expiration of that period, the law will presume that an assignee, executor, or administrator has settled an account and disposed of the assets for administration in his hands in the manner required by law. The burden of proof is oast upon those who deny the settlement, or presumption of it, and must rebut it by proof, otherwise this legal presumption will conclude them.</p>

This was a libel for a divorce brought by the wife against her husband, asking for a separation from bed and board, and alimony, on account of cruel and barbarous treatment. The cause was tried before a jury, and a verdict rendered in favour of the libellant.

This case came before the Court on a bill filed, by the plaintiff against the defendant, to compel the specific performance of a contract for the sale of a lot of ground, in the county, of Philadelphia. The bill alleged the sale to the defendant, the readiness of the plaintiff- to perform his part of the contract as set forth in the bill, and the refusal of the defendant to comply with his promise by the acceptance of the deed and payment of the purchase-money.

This case arose on a bill in equity filed by Samuel B. Thomas and twenty-four others, against Peter C. Ellmaker and ten others, specially named, and referring to a certain schedule containing the names of nearly one hundred other individuals, embraced in said schedule attached to the bill, which it was prayed the Court would make parties to the bill, in case it should be thought fit; alleging that all were associated together as members of an unincorporated association,…

This case came before tbe Court on exceptions to tbe report of an auditor. All tbe facts wbieb gave rise to the questions decided by tbe Court, are so fully stated in tbe opinion of tbe judge who delivered their decision, that it is deemed unnecessary to furnish a more extended statement of them, as it is believed the reader will be fully apprised of all that is material for a just comprehension of tbe cause.

This case arose in tbe Orphans’ Court, on exceptions to tbe report of an auditor. Tbe facts were these: Adam Fleck, by bis last will and testament, bequeathed bis property to bis children, in various portions, and also made a bequest to bis widow, giving to her the lawful interest of There was no dispute but that bis executors faithfully executed this part of the will. Tbe widow lived until 1844.

This case arose on a petition presented to tbe Orphans’ Court of Philadelphia county by one George Hocker, who stated that he was a devisee under the last will and testament of Christopher Mason, deceased; that certain real estate had been devised to him by the testator, consisting of two several parcels of land, with buildings thereon, &c. On each of those two pieces of land were of different one of which was a mortgage given by one George Martin for the payment of $900,…

This case arose in the Orphans’ Court on exceptions to the report of an auditor. It is believed all the facts material for a proper understanding of the points decided by the Court, are so fully stated in the opinion of the Judge, that no further statement of them is important.

This was a kill in equity, filed by tke Commissioners and Inhabitants of the Township of Moyamensing, against Samuel Long. The bill set forth that in the year 1818, the persons owning land, and residing in said district or township of Moyamensing, on application to the proper court, proceeded to the opening of Eleventh Street from Cedar to Federal, and that the same was declared to be a public street and highway within the corporate limits of said district and township.

The facts which gave rise to this controversy, were these: Thomas Bradford, of the city of Philadelphia, printer, made a will on the 12th of March, 1821, relating to real and personal estate. — On the 27th of May, 1835, he made another will, relating to personal estate only. Both of these wills were found among his papers after his death, which occurred May 7th, 1838.

This case was presented to the Court, on exceptions to the report of an auditor. Numerous exceptions were filed, and the testimony is of a voluminous and peculiar character. But all the facts, material for a correct understanding of the points decided, are so fully stated in the opinion of the Judge, that any further report of them is deemed altogether unnecessary.

This was a bill in equity, brought by the Bank of Kentucky v. The Schuylkill Bank, in the city of Philadelphia, and Hosea J. Levis. The original bill was filed on the 17th of December, 1889.

This was a bill in equity praying for the sale of partnership property in a newspaper, the appointment of a receiver, and the decree of an account.

In this case a writ of estrepement had been issued out of the Court of Common Pleas, on the petition of the plaintiff, alleging that the defendant was a tenant on his farm for a year, and that he was committing waste upon the premises, by ploughing down sod and grass for the purpose of sowing the land with corn; and that, if he was permitted to persist in that course, these acts would cause a great and lasting injury to the freehold interest of the plaintiff.

This case arose in the Orphans’ Court of Philadelphia, on a petition in the nature of a bill of review, not under the Act of Assembly of 1840, but by way of an appeal to the general equity powers of that tribunal. The facts of the case are so fully stated by the Judge in his opinion, when pronouncing the decision of the Court, that no further statement of them is deemed necessary in order to enable the reader fully to understand the subjects in controversy.

This was a libel for a divorce, brought by Pierce Butler, libellant, v. Frances Ann Butler, respondent. The only ground set forth in the libel was wilful and malicious desertion, without reasonable cause, from the habitation of the libellant. It was in the common form. To this libel the respondent put in an answer.

This was a bill in equity, brought by Janet Wilson, James H. Cowper, and Thomas Cadwalader, surviving executors, devisees, and legatees in… Held: occupied, and enjoyed by my said niece during her life^ at the same time wishing and expecting that, under this disposition of it, my son, with his wife, should he marry with the approbation of my said trustees, or a majority of them, may, if he wish, reside with her; and also my daughter Agnes and her children, should the be…

This was a bill in equity, filed by Smedley against Matthew and Richard Williams, trading under the name and firm of Williams & Brother.

This cause came before the Court on exceptions filed to the report of tbe Master, Mr. Clay. The material exception arose under these circumstances:— In the year 1815, Mr. Mansell, the testator, had purchased at Orphans’ Court sale, under proceedings in partition, two houses in Vine street, part of the estate of Jesse Oat, deceased.

This was a bill in equity, filed by John S. Twells, setting forth, that be was the assignee of Walter Livingston and Charles A. Lyman, trading under the name of Livingston & Lyman, who made to him an assignment for the benefit of their creditors, and among other things, provided in said assignment, he was to sell all the property assigned, and convert it into money, and distribute the proceeds of sale among the creditors of said firm.

This was a bill in equity, filed by tbe plaintiff, Israel W. Morris, against Thomas P. Remington, setting forth that in the year 1747, John Hughes and John Evans were respectively seised of adjoining farms, then in Blockley and Lower Marion townships, Philadelphia county, hut now in Montgomery county, except that a part of the farm which then belonged to Hughes was still in Philadelphia county; that there was a creek or stream of water which ran through said farms, flowing…

This was a petition presented in the Orphans’ Court by Frederick Fontain, Wilhelm Fontain, Albertine Marie Louise Fontain, and Henrietta Catherina Fontain, by their attorney in fact, John C. Lang.

This was a bill in equity, filed by John Hudson against Thomas H. Barrett, alleging that, on the 30th day of June, 1845, the parties had entered into articles of co-partnership, for the purpose of carrying on the business of a gymnasium ; that they entered upon and carried on the business pursuant to said agreement, and had ever since continued the same, and that it still continues; that the said Barrett had been in the habit of receiving all sums of money on the partnership…

This was a hill filed hy Farley against Stokes and Tyrell, setting forth that Stokes was the owner of a house situate in Spring Garden, and that the plaintiff was a druggist, and being desirous to obtain a lease of said house for a term of years, as a drug shop, by his agent negotiated a lease for the same, when it was completed and put in tenantable order; and that, on the 20th of October, 1847, the said Stokes agreed with the agent of the plaintiff to lease the said…

This case came before the Court on a petition presented by Joseph D. Meredith, setting forth that his father, William Meredith, Esq., deceased, by his last will and testament, duly proved in the Register’s office in Philadelphia, among other things, did direct as follows, to wit: “ I hereby authorize and empower my executors hereinafter named, or any two of them who may be acting as such, and the survivors or survivor of them, to grant, bargain, sell, and convey all or any…

This case arose on a petition by some of the heirs at law of Margaret Pepper, deceased, stating, that on the 3d day of June, 1837, the said Margaret conveyed by deed all her real estate to one George Pepper, who was now deceased, and the said Margaret was also dead; that although the deed contains certain trusts, and reserved to the said Margaret the power of disposing of the same by a writing under her hand and seal, in the presence of two witnesses, in the nature of a last…

This case came before the Court on exceptions to the report of an auditor; various questions' were considered, which it is deemed not necessary to introduce into a statement of the case.

This ease arose on a petition in the Common Pleas, filed by James Murphy, asking that the funds in the hands of Burke’s assignee might not be distributed, for reasons fully set forth therein; but as all the facts which gave rise to the questions of law determined by the Court, are so fully set forth in the opinion delivered, it is deemed unnecessary to state them more in detail.

This was a bill in equity, filed by Palmer v. Graham, in which the complainant set forth, that he had a horse, wagon and harness, and cans for holding camphine oil, an article of merchandise, with which appliances he had for some time,before been in the habit of supplying persons residing in certain parts of Philadelphia, in certain streets, all mentioned in the hill; that in the course of this dealing he had obtained a number of customers, as persons who were in the habit…

This case a,rose on a petition filed in the Court of Common Pleas by one James Gibson, alleging that he was a credit- or of one John Mellish, who made an assignment to Thomas Hulme, in 1820, of all his property, for the benefit of his creditors, and alleging that the said assignee had never filed any account of his trust, and praying for a citation in the usual form; hut there was no affidavit alleging that the facts set forth were true.

All the facts necessary for a full understanding of the point decided by the Court, are sufficiently stated by the Judge who delivers the opinion.

This was a bill in equity, filed by Thomas Suteliff against Aaron Isaacs, setting forth that the plaintiff is seised in fee of a certain lot or piece of ground situate on the east side of Second street, &c., in the district of the Northern Liberties, in the county of Philadelphia. That the said messuage is of brick, and hounded on the north by a lot of ground with a messuage thereon erected, owned by said Isaacs.

This was a bill in equity, filed by John Hill and fifteen others, who state that they are inhabitants and residents of, or owners of property, and tax-payers of the district of Kensington, against the Commissioners and inhabitants of the Kensington District : against Solomon Wagner and others named as the Commissioners, John Taylor, treasurer, also Frederick A. Yandyke, and Jacob W. Colladay.

This was a bill in equity filed by Hiram Waring against Smith Oram and Charles S. Cram, setting forth that in January, 1849, the complainant entered into an agreement with the respondents, and six others, whose names were mentioned, by which they formed an association for the purpose of carrying on the business of mining, and collecting gold and other minerals in California, under the name and style of the “Putnam Mining Company.” That by the terms of the agreement, the…

<p>"Where the object of a hill for discovery is to supply the party ashing the discovery, with the materials for future contemplated litigation, it must clearly appear on the face of the hill, that the plaintiff has a title to the discovery he seeks, or in other words, an interest in the subject-matter, to which the discovery is attached, proper to he vindicated in some judicial tribunal.</p> <p>Such title so to be shown, must be present and vested. Where the plaintiff in his bill shows only the probability of a future title, or interest, upon an event which may never happen, he has no right to institute any suit concerning it, either for discovery or for relief.</p> <p>The allegations and charges of such a bill should be precise and specific, for without such allegations and charges, there can be no test by which the right to discovery can be tried.</p> <p>Unless the facts set forth in the bill, admitting their truth, will enable the plaintiff to maintain an action, he has no title to the assistance of a Court of Equity. The want of such right may be objected to by demurrer. Such a bill must, at least, be certain to a common intent. It must not be vague, nor uncertain.</p> <p>Where the bill avers that an action is brought, or where such is the necessary effect in law, from the facts stated in the bill, it appears the plaintiff has the right to bring an action; he has a right to discovery in aid of the action alleged to be brought, or one which he appears to have the right to bring. But no one can file a bill, not venturing to state who are the persons against whom the action is to be brought; nor not stating such circumstances as may enable the Court to judge of the liability of the parties.</p> <p>If a bill does not aver some judicial proceeding pending, for which the discovery is sought, or that such is contemplated, it will not be entertained.</p>

This was a bill in equity, filed by the “Bank of Virginia” against Thomas Adams and thirty-three others, naming them, in which it was stated that the plaintiffs sued in behalf of themselves and all other creditors of the “Rappahannock Mining Company,” who should come in and contribute to the expense of the suit; that by an act of the legislature of Yirginia, passed on the 6th of January, 1834, entitled, “An Act to incorporate the Rappahannock Mining Company,” which* was set…