Volume 10 — New Jersey Equity Reports

On the 24th day of September, 1851, the Peoples Bank of Paterson was, by a decree of this court, declared insolvent, and the complainants were appointed receivers, under the act entitled, “ An act to prevent frauds by incorporated companies,” approved April 15th, 1846.

<p>No one can question a decree, except a party to it, or some one whose rights are impaired by it.</p> <p>Where a complainant did not claim under any party to a decree, and his lien upon mortgaged premises was acquired subsequent to it, and he did not impeach it for fraud, mistake, or accident, but, on the Contrary, admitted that the decree was entered in good faith between the parties; and there Was nothing connected with the suit, or the manner in which the decree was entered, or in the claim upon which it Was founded, to justify the court in refusing to protect and enforce the rights of the respective parlies under the decree, the court would not go behind the decree.</p> <p>Where a legacy had been made a lien upon a farm, Which the testator devised to liis son, who was the executor; and the will directed the legacy to be paid in three annual instalments without interest, and directed the executor to invest the same, and apply the interest to the support and education of the legatee, until she should arrive at the age of twenty-one years, at which period the principal was to be paid ; and subsequently the executor mortgaged the farm, it Was held that the legacy Was a subsisting lien on the premises, notwithstanding a final settlement of the executor in the Orphans Court, in which he had prayed allowance for the legacy! the executor could not release the land by simply charging the legacy to himself, íhe will made the legacy a lien upon the land until it was actually paid. Nor was the land released by a marriage settlement, in which the executor Was made a trustee to secure to the legatee her separate estate free from the control and liability of her intended husband, when there was nothing in the settlement to show that it was the intention of the parties, by that deed, to release the land, and to take the personal security of the executor for the legacy, and the legal construction of the deed did not necessarily produce that effect.</p> <p>It was apparent that the money had never been received to pay the legacy, that it existed in no other way than as a debt due to the legatee, secured upon the lands of the executor, and while that debt and security had been assigned to the trustee, with power to change the security, it never was in fact changed. The executor and trustee, in such a case, cannot interpose that trust deed as a defence against a claim of the legacy as a lien upon the land.</p> <p>An attorney has no right to give up the security of his clients, unless he receives actual payment, or is specially authorized to do so; but where there is evidence enough of the acquiescence.of the client in the agreement, it may be inferred that a solicitor had special authority.</p> <p>A debt of record cannot be released by parol. How far a declaration, that-a decree was satisfied, would bind a party against one who upon the faith of it has advanced money, is another question.</p> <p>The assignee of the executor made an arrangement to sell the farm, that money enough should be raised to discharge the decree, so that a clear title might be given to the man who should loan the money. But the understanding had not been carried out, nor the decree discharged, although the parties supposed it was. The lien in such case cannot be postponed to a subsequent encumbrancer, unless it can be shown that, by some act of those claiming under the execution, he has been induced to loan his money upon a false security.</p> <p>Honest efforts on the part of those having claims under a decree to secure their debt, consistent with the fact, that the debt was acknowledged due, and was secured by the decree, do not prove that they released their security or abandoned their rights under the decree.</p>

<p>To justify this court’s interfering with an award, it must be shown there was fraud, mistake, or accident. The accident must be sucb as to have deprived the party of the benefit of a hearing or of some substantial right; the fraud must amount to corruption, partiality, or gross misbehavior in the arbitrators; and the mistake, if in law, must bo a plain one, upon some material point affecting the case. If a matter of fact, it must, in general, be such as the arbitrator himself would admit, such as a miscalculation in an account, and the like.</p> <p>Where the bill stated “ the award was not for damages which in the opinion of the said arbitrators had accrued subsequent to the said twenty-second day of October, in the year 1847,” and which alone were submitted to them to be arbitrated, the testimony of tlio arbitrators themselves was held to be conclusive upon it.</p> <p>A complainant cannot invoke the aid of a court of equity on the ground that an award was illegal, because not in pursuance of the submission. When it appears, by the bill itself) that the parties mutually agreed to the course pursued by the arbitra'ora in the matter complained of, it would be against equity and good conscience to permit the complainant thus to repudiate his own acts.</p>

The hill was filed to compel Elizabeth M. Clark, the widow of Noah Clark, the complainant’s testator, to elect between her dower and a legacy in the will. Elizabeth M. Clark, by her answer, insists that she is entitled to the legacy as well as her dower. The will is as follows: “In the name of God, amen.

<p>This court has no right to institute au inquiry into the doctrines or mode of worship of any religious society, except such inquiry shall become absolutely necessary for the protection of trust property.</p> <p>Nor would it be justified in issuing ail injunction to enjoin a clergyman, who without any pretence of right, should take upon himself to trespass upon a congregation, by entering their pulpit, and promulgating his peculiar religious doctrines.</p> <p>The court has no authority to enjoin a mere trespasser without shadow of right.</p> <p>The court cannot grant an injunction to allay the fears and apprehensions of individuals. They must show the court that the acts against which they ask protection are not only threatened but will, in probability, be committed to their injury.</p>

<p>Where a copartnership is not determinable at will, and the court is resorted to for the purpose, a receiver will be appointed of course. The reason is, that whatever justifies the court in decreeing a dissolution, establishes the propriety of appointing a receiver.</p> <p>But when a partnership is dissolved by mutual consent, or determined by the will of either party, a Court of Chancery will not, as of course, without any reason, except that such is the wish of one of the parties interested, assume the control of the business, and place it in the hands of a mere stranger.</p> <p>The court will appoint a receiver wherever it shall appear that it is necessary to do so in order to protect the interest of the parties.</p>

<p>One who enters into the possession of lands as tenant, and claims title and possession by virtue of a subsequent parol agreement, partly carried into execution, must establish the contract, by competent proofs, to be clear, definite, and unequivocal in all its terms; and the acts upon which he relies as part performance must be precise and certain, and referable exclusively to the contract.</p> <p>Payment of the purchase money, or a part of it, is not such a part performance as will take the case out of the statute.</p> <p>If he relies upon possession as part performance, he must show, by unequivocal proof, that the tenancy was abandoned, and that his possession as a tenant was changed into that of a vendee, under the specific contract he is seeking to enforce.</p>

<p>This court will not assume a jurisdiction to try the lawful election of officers and the validity of ordinances of corporate bodies upon the mere allegation that the complainants are holders of real estate in a city, and that the value of their property is directly involved in proceedings which are going on and threatened, and that the proceedings are useless, and will tend to depreciate their property in value.</p> <p>The power of filling vacancies being incident to a corporation, it has the right, by its by-laws, to prescribe the manner in which such vacancy shall be filled, provided it is not inconsistent with the design of the charter.</p> <p>The city council of Perth Amboy have no right to elect its own members; the law declares that the members constituting the city council shall be elected by the electors of the city by ballot. The city council cannot confer this authority elsewhere, nor can they usurp it themselves.</p> <p>The provisions in the act to incorporate the city of Perth Amboy, that the oaths of office should be taken and subscribed within ten days after the election, is directory only, and an alderman and members duly elected did not forfeit their offices by their neglect of being sworn in within ten days after their election.</p> <p>An ordinance of the city of Perth Amboy, which ordained that the streets be graded and regulated, but did not specify how, nor refer to maps, profiles, or to any order or proceeding by or under the authority of the council, by •which it could be ascertained how the grading wss to be done, was held to in violation of the rights of the land owners in the city, and unlawful, as they could not comply with its requirements, and the act, if they did not do so within two months, deprived them of the privilege of doing it themselves.</p> <p>But although the ordinance is illegal, the court will not grant an injunction simply on the ground of the illegality of the ordinance. The injury must be specified, and so pointed out that the court can see it must be the inevitable consequence of the act threatened and complained of.</p>

<p>A judgment creditor, or kis assignee, cannot, after the judgment has been paid in any way, give it vitality against the judgment debtor, and, of course, not against his creditors. The assignee takes it subject to all the equities between the original parties.</p> <p>Nor can the debtor himself, after he has paid the judgment, in any way revive it against a bona Jide mortgage or judgment creditor, who had a lien at the time of payment, or acquired prior to the act of the debtor, by which it is sought to affect his lien.</p> <p>Payment by the debtor operates for the benefit, and as a release in favor of creditors having liens on the same fund bound by the judgment.</p>

The bill alleges that James Price, William Flagg, and Henry M. Price were partners in trade, and became embarrassed in their business ; that James Price was seized in fee of valuable real estate in New Brunswick, and that, without any consideration therefor, he conveyed it to Seth Bonnel, one of the defendants, to the end, and with the intent and purpose, to hinder, delay, and defraud the creditors of the said James Price and of the said partnership; that several judgments,…

<p>Where an injunction has been dissolved for want of equity in the bill, the court will not grant an ex parte injunction upon an amended bill, or u pon a new bill supplying that equity.</p>

<p>The interest whioh the husband acquires in the wife’s inheritance is subject to judgment and execution against the husband. Husband and wife are joint]’? seized in right of the wife.</p>

<p>Where a bill claims the execution of a resulting trust, the facts from which it alleges the trust results must be proved. A complainant cannot make one case by his bill, and having failed to prove it, abandon it, and recover upon a different one established by the evidence.</p>

<p>A testator at his death left a widow, since deceased, and three minor children. His widow took a life estate only in the land and premises under his will. Some years after the death of testator, his widow conveyed the premises in question to a trustee, in trust for the benefit of her minor children, with power to dispose of and convey the same to the best advantage. The trustee sold the premises, and the possession of the premises had since followed his conveyance. The court refused to enjoin the minor children from prosecuting an action of ejectment, or to order them to execute conveyances or releases, as there was no evidence that they, after arriving at age, had assented to the sale, or received any consideration for it.</p> <p>The trustee who had given a warranty deed for the land, and remained liable upon it, was excluded as a witness on account of interest.</p>

<p>A complainant may have partition and an account by the same bill.</p> <p>Although an ejectment suit does not conclude the parties from further investigation, this court will look at the questions which were really involved in that suit; and if the legal question as to the title, which is raised by the bill, was decided by the court of law, and the party had by the judgment and process of the court been put in possession, this court cannot require better proof of legal title.</p> <p>On a bill for partition, if the title is denied, and there are serious doubts raised, the court will not order the commission: nor will it dismiss the bill, but will retain the bill, and afford the complainant an opportunity to establish his title at law.</p> <p>This court is not the proper tribunal to try the legal title to land, but it is its peculiar province to determine questions of fraud, and to set aside fraudulent conveyances interposed to defeat the legal title.</p> <p>The fact, that a purchaser at an administrator’s'sale was a man of no means, that on the same day the administrator conveyed the property to him, he reconveyed it to the administrator, is sufficient proof, without any explanation of the transaction, that the purchase was made for the benefit of the administrator.</p> <p>The deed in such cases is voidable.</p>

<p>Parol evidence is not admissible to explain a written agreement, when there is no ambiguity apparent on the face of it.</p> <p>If the mortgagee purchases the morgaged premises subject to the mortgage, he cannot hold the land, and enforce the mortgage debt against the mortgagor.</p> <p>If the mortgagee purchases the mortgaged premises upon an execution at law against the mortgagor, in favor of a third person, he purchases subject to the mortgage, and thereby extinguishes his debt: if he purchases upon an execution at law upon a judgment for his mortgage debt, then he extinguishes his debt against the mortgagor to the amount only he gives for the land.</p> <p>A mortgage was executed to William Whitfield. This mortgage is absolute upon the face of it. But it was executed in trust, and the trust is declared in an instrument of writing between Abraham J. Jeroloman and the mortgagee. By the plain construction of the instrument, it secured, first, to William Whitfield, John Kennedy, and Abraham V. Speer, such sum or sums of money as were due and owing to them, or to either of them, from Abraham J. Jeroloman at the time of its execution, as well as all such sums of money as they should advance on account of any judgments, or other claim, or debt, then existing against Jeroloman, and the interest accruing thereon; and second, it secures to John S. King, William H. Brant, Peter Cooman, and Minard Cooman, the several amounts of money then due and owing to them, or either of them, and to Joseph Budd, the sum of one hundred dollars. Held, the debt due Speer at the time of the execution of the writing has a preference over any advances subsequently made by any of the parties to the instrument.</p> <p>A judgment creditor may assign a part of his interest in a judgment. If he assigns the debt, a court of equity will secure to the assignee the benefit of the judgment. Where a trustee pays a debt which is a prior lien on the trust fund, and which it is necessary to pay in order to protect the fund, for the benefit of the trust, the trustee is entitled to be reimbursed out of the trust fund, and this constitutes a first lien on the fund.</p> <p>Case stated where-a cross-bill is necessary.</p>

<p>Parol evidence is admissible for the purpose of showing a mistake in a deed. It forms one of the exceptions to the general rule, which excludes parol evi dence offered to vary a written contract.</p> <p>Complainant erected a valuable dwelling house, by mistake, on the land of defendant; defendant lived in the vicinity, saw complainant progressing, from day to day, with the improvements, and admitted that he did not suspect the erections to be upon his lot until some time after their actual erection, when, by actual measurement, to his surprise, he discovered the mistake. The court relieved the complainant, putting tho defendant to as little inconvenience as possible.</p>

The hill alleges that, on the 15th day of November, 1847, Sarah Ward executed her two bonds, one of $1500 and one of $1000, to her son, J. L. Ward, and at tbe same time a mortgage to - secure the same on three tracts of land—1st, of 10 acres, 2d, of 2 acres, and 3d, of 10 acres, and that, on the 1st December, 1847, the said J. L. W. assigned the said bonds, the one of §1500 to John I. Blair, and the other of $1000 to James Blair, and the said mortgage to J. I. B. and J. B.…

The bill alleges, that one Thomas A. Hartwell did, by deed dated on the 2d of February, 1846, convey to Albert Camman certain mining rights and interest in certain premises in said deed described, and that T. A. H., on the 28d of June, 1847, by deed of that date, did sell and convey to the complainant and to his heirs and assigns for ever the same tract of land with full warranty, excepting out of the same the right of mining so conveyed to the said A. C.; that previous to…

<p>Uj~on a bill ffl~ f~t aUmon'zj only, the court may make an order for a exeat fixed. i~ie wife</p> <p>The affidavitalone is sufficient to support the order.</p> <p>The affidavitne~d not state, in so many words, that the defendant is about ~Mg ~I~eistej~ to avoid the jurisdiction of the court; it is sufficient, if the facts seem ~how that the defendant's departure will defeat the complain. ~blãi1~'~or that the defendant is leaving the state for that purpose.</p> <p>The Affidavitshould show that the defendant intends going abroad. It must be positive as to this point, or to his threats or declarations to that effect, or to facts evincing it, or circumstances amounting to it.</p> <p>In somecases it will be sufficient if the intention of the defendant's going abroad is sworn to upon information and belief; but the writ should not be issued in a doubtful case. The debt, or, in a case between husband and wife. the duty. should be certain.</p> <p>The husbawas about moving from Newark to the city of New York, ~.nd upon his insisting that the wife shoul8. go with him, she left her husbana'~ house, and. filed. her bill. She is not entitled. to select her own place of resi- deuce, aud under such circumstances to an order for alimony.</p> <p>The Courtof Chancery has no power to decree alimony, except as incident to divorce, except in the single case provided for by the 10th section of the statute. the statute.</p>

<p>This court has the power to order a bond or other instrument to be delivered up to be cancelled, and the court may properly exercise the power, although the grounds upon which the jurisdiction of the court is invoked may constitute a valid defence at law against the writing.</p> <p>An assignee of a bond, takes it subject to all the equities which existed at the time of the assignment, between the obligor and obligee.</p> <p>But if A. executes to B. his bond, and takes, as a consideration for it, B’s promissory note at ninety days, if B. assigns the bond to C. before the note becomes due, A. cannot resist the payment of his bond in the assignee’s hand on the ground of a failure of consideration.</p>

<p>The personal estate is the only fund for the payment of legacies, unless a contrary intention appears in the will.</p> <p>Where a legacy is made an express charge upon the land, if the personal estate in the hands of the executor is sufficient to pay the legacy, and the executor squanders the estate, the legatee cannot resort to the land. The land is debtor for the legacy only, and not for the misconduct of the executor.</p> <p>Where the executor has in his hands funds sufficient to pay all the legacies, and after paying some of them, squanders or misapplies the residue of the fund, the legatees unpaid cannot resort to the others for contribution; the legatees who have received payment are entitled to the benefit of their diligence. When there is an original deficiency of assets, the rule is different; and the rule may have a different application when there is a participation in misapplying the assets between the executor and such legatees as are paid their legacies.</p> <p>The intention of the testator is the essence of ademption of a legacy. When an advancement is relied upon as an ademption, two facts must be established, the advancement, and the intention of the testator that it should be in satisfaction, or a substitute for the bequest.</p> <p>In some cases, equity raises the presumption, and parol testimony is then admissible, not to raise, but to confirm a presumption.</p>

<p>Hope Cowperthwait, by her will, directed her trustees to pay a certain fund, as follows: “ unto such of the brothers and sisters of my daughter Hannah and their children; and in such proportions as my said daughter H. shall, by her last will and testament, or writing in nature thereof, signed by her hand, and attested by two credible witnesses, direct and appoint.”</p> <p>This language gives to the donee a discretion as to a selection between the objects named.</p> <p>After the language quoted above, follows “my will being that my said daughter shall in such case have power to dispose of the same among her brothers and sisters, and their children, in such proportions as she may think fit, but to no other person or persons whatsoever.”</p> <p>This limited the power of appointment, and entitled each of the brothers and sisters of Hannah Lippincott to a portion of the fund.</p>

<p>A court of equity will interfere on behalf of a single stockholder, if he can show tiiat the corporation are employing thoir statutory powers, funds, &c., for the accomplishment of purposes not within the scope of their institution, and an injunction in such cases will be granted. But it is well settled that, acting within the scope and in obedience to the provisions of the constitution of the corporation, the will of the majority, duly expressed at a legally constituted assembly, must govern.</p> <p>The legislature may give additional powers, from time to time, to corporations; and acts of the corporation, in pursuance of such authority, are binding, unless they conflict with vested rights or impair the obligation of contracts.</p> <p>By the supplement to the charter of the Newark and Bloomfield Railroad Company, passed March 26th, 1852, J 3, it is enacted, that nothing in the supplement contained shall be construed to impair, in any manner, any reversionary interest or vested right which the state, or any incorporated company or companies, or any individual, may possess under the charter of the Bridge Company. This provision is also, in effect, contained in the constitution.</p> <p>A stockholder of the Bridge Company has a vested right in the value of his stock and interest in the franchise of exclusive tolls, and, as ancillary to this, an interest in the exclusive right of building bridges over the rivers Passaic and Hackensack.</p> <p>Any act of the incorporation impairing these rights of a stockholder without his consent, either express or implied, would not be binding on him under the above provisions, except in a proceeding authorizing the taking of private property for public uses upon making compensation. But long acquiescence will be considered as equivalent to a consent, and whatever ground of equity an individual stockholder may have had, a counter equity may arise from lapse of time.</p> <p>The supplement to the Newark and Bloomfield Railroad Company does not contravene the article of the constitution of this state, which declares that every law shall embrace but one object, and that shall be expressed in the title, as the objects in the statute are parts of the same enterprise, and have . a proper relation to one another.</p>

<p>Benjamin Parkhurst was a large trader, doing business in the city of Newark. In the course of his trade, he purchased goods of the defendants, who were merchants in the city of New York. It appeared, from the answer, that Parkhurst was indebted to them in the sum of one thousand eight hundred and fifty-five dollars and twenty-three cents, for goods sold, &c., and in the further sum of twelve hundred and seven dollars and seventy-two cents, for money lent and advanced. Parkhurst applied to one of the defendants for further advances of money, and in order to secure them for such advances and credit as defendants might give, as well as the then existing indebtedness, it was agreed that Parkhurst should confess a judgment for ten thousand dollars to the defendant, in consideration of his then indebtedness of three thousand and sixty-two dollars and ninety-five cents, and that the defendants should advance to him money and goods, from time to time, as he should desire the same, to the amount of the difference between the sum last named and the sum for which the judgment was to be confessed. To carry out this arrangement, the defendants gave to Parkhurst their note for six thousand nine hundred and forty-seven dollars and six cents, as a security to him for their making the advances, and for giving credit as agreed between them, with the understanding, that as advances were made, corresponding endorsements were to be made on the note. That under this arrangement the judgment was confessed, and the defendant advanced Parkhurst in cash five thousand nine hundred and sixty-five dollars and seventy-two cents, and in goods two hundred and thirteen dollars and seventy-five cents, making, with the original indebtedness, the sum of nine thousand two hundred and forty-two dollars and forty-two cents.</p> <p>Held, that there was no reason to doubt, from anything that appeared on the face of the answer, but that the defendants took their judgment in good faith to secure a debt honestly due them and to protect them in such further advances as they might make to their debtor.</p> <p>It did not appear that there was any affidavit in the case, and it was insisted that a judgment cannot be confessed for future advances, because the plaintiff cannot swear “that the debt is justly and honestly due and owing, and that the court should not allow the defendants to enforce their judgment, as it was in contravention of the statute. But it was held that the only ground of jurisdiction in this court to interfere with the judgment would be, that it was fraudulent.</p> <p>They could not declare the judgment void as against creditors, simply because the judge or court had suffered it to be entered up in violation of the statute.</p> <p>It is the conscience of the party which this court is to test, and not the legality of the judgment, or to correct the error of a court of law.</p>

On the 20th of April, 1854, a commission, in the nature of a writ de lunático inqmrendo, issued out of this court, directed to James Lain, Moses Dunning, and David Thompson, esquires, directing them to inquire into the alleged lunacy of Daniel Vanauken.

<p>E. E. went to the office of S., a scrivener, who drew her will, and after it was executed, S., at the request of E. E., put it in his private secretary with his private papers for safe keeping. To the knowledge of S., the will was never sent for, or taken away by E. E., and during frequent conversations between E. E. and S., the will was spoken of. E. E. dies, and S., upon searching for the will, finds it gone from the place where he deposited it, and upon search cannot find it. He states, under oath, that he believes the will to have been clandestinely taken from his secretary: held, that the presumption is that this was the last will of E, E., and unless that presumption is overcome in some legal way, will be established.</p> <p>The evidence in this case stated, and the reasons given for the conclusion, that the evidence does not overcome the presumption in favor of the alleged paper being the last will of E. E.</p> <p>There is no reason for the court submitting the question of fact, whether a will has been cancelled, or surreptitiously destroyed, to a jury, where the evidence is such as to create no embarrassing doubt in the mind of the court.</p>

<p>A. is the owner of two farms, through which runs a natural stream. 'He sells to B. the farm upon which the watercourse has its origin; A. is entitled to have the water flow upon the farm which he reserves the same as he enjoyed it when he severed his title, because the watercourse did not begin by the consent or the act of the parties, but ex jure nature. But water conveyed by pipes is a thing which is created and controlled by the parties, and is, in its very nature, different from a natural watercourse.</p> <p>C. S. died, leaving a large farm, through which was an artificial watercourse. Proceedings were had in the Orphans Court for partition among the heirs, and a portion of the farm through which the artificial watercourse run was set off to part of the heirs, and another portion was sold under an order of the court. Held, that the purchasers were entitled to the enjoyment of the watercourse as it existed at the time of sale. The act of the commissioners was no such severance of the unity of title as would govern the rights of the grantor to the enjoyment of the watercourse.</p> <p>Although a man can have no easement on his own land, yet, by the mere severance of his title, ho may create such easement, and the test as to whether such easement is created, is whether it is essential to the beneficial enjoyment of the land conveyed. It is created ex necessitate, though not by the words of the grant.</p>

The bill alleges, that the complainants are the owners in severalty and in fee simple of about 128.63 acres of meadow land, situate in the township of Union, in the county of Camden, on both sides of a small stream of water called Little Timber creek, emptying into the river Dataware five miles below Camden city; that the said meadow was reclaimed from the tide waters of the Delaware some time in, or previous to the year 1760, by the owners of the said meadows, who, at their…

<p>The testator first charged all his estate, both real and personal, with the payment of his debts; he then declared that the revenues should be used for that purpose, together with such other appropriations as he makes. Held, that the word appropriations evinced the intention of the testator to designate and set apart the portion referred to from his other property for a specific object, viz. to constitute a fund in the hands of his executors to pay his debts.</p> <p>It is a settled rule, that the personal estate is the primary fund to pay the debts, aiid that it is not relieved from the burthen by the debts, in express terms, being charged upon the i’ealty; and that wherever it is aided either by a legal or an equitable fund, it must be itself in the first place applied.</p> <p>This rule is within the control of the testatoi', and is not applicable where his intention to the contrary is either expressed or clearly implied. That intention must not be simply to charge the realty, but to exonerate the personalty.</p> <p>Personal property not specifically bequeathed, must be applied before specific legacies.</p> <p>A residuary clause in a will was as follows: 11 All the rest and residue of my estate, real and personal and mixed, wherever it may be situated or found, that I may die possessed of, not herein before enumerated, provided for, given, &c„ I do hereby give, &c., to my son William.” It was argued that testator did not die possessed of the rents of his real estate and the interest on obligations, &c., which accrued after his decease. But it was held that it was the intention of the testator that the residuary clause should embrace everything he had a right to dispose of, not specifically devised or bequeathed.</p>

<p>Although tho general rule is, that the answer of a defendant, so far as it is responsive to the bill, is evidence for the party, it is no evidence whenit asserts a right affirmatively iu opposition to the complainant’s demand.</p> <p>So where the defendant was called upon to disclose what consideration he paid for the assignment of a mortgage, and answered that he paid no consideration at the time, hut merely promised that he would make certain payments and perform certain duties at a future time, his allegation, that he has performed his promise cannot avail him; he is bound to establish the fact by proof.</p> <p>The fact as to whether the assignment was intended as an absolute one, or as a mere authority to enable the defendant to collect, being doubtful from the evidence, tho court directed an issue.</p>

<p>Two complainants with distinct causes of action, alleging distinct injuries, cannot unite in the same bill. To authorize them to join as complainants, their cause of action must be the same, the injury the same, and they must be entitled to the same remedy.</p> <p>The city of Newark has authority, by its charter, to grade and regulate its public highways; the owners of property adjacent to such improvements have no legal claim upon the city for incidental damages.</p> <p>In the exercise of its chartered powers, the city has no right to occupy or appropriate private property without making compensation, nor would its authorities be permitted to do any wanton or unnecessary damage, direct or incidental, to any individual’s property. But the mere discretion of the city authorities cannot be interfered with, or in any manner controlled by this court, so long as that discretion is exercised within its appropriate and legal limits.</p>

<p>Charges of adultery are Improper in a bill which prays for a divorce a mensa et tlioro only.</p> <p>So much of the evidence as related to acts of adultery suppressed.</p>

<p>The rule of the common law is undoubtedly well established, that a trustee, executor, or administrator shall have no allowance for his care or trouble. , The Court of Chancery, independent of any statute law or local custom, has, with few exceptions, adopted this rule.</p> <p>In New Jersey the rule is different. Executors, administrators, guardians, and trustees are allowed compensation by statute, and the principle upon which allowance is to be made is regulated by statute. The statute declares it shall be made with reference to their actual pains, trouble, and risk in settling the estate, rather than in respect to the quantum of the estate.</p> <p>The commissions are a compensation for the faithful discharge of duty. Where a testator gave discretion to trustees to sell land, and directed that, if sold, the proceeds should be invested in-good landed security; held that if the funds arising from the sale had been in the hands of the trustees, and had remained so for a long period without any security, that they had violated their duty as trustees, and were not entitled to commissions.</p> <p>Trustees who did not invest according to the terms of the trust compelled to pay the costs of the suit, the complainant having been driven into litigation to establish the amount of the trust fund.</p>

<p>If a defendant submits to answer, the general rule is, he is bound to answer every immaterial, as well as material statement of the bill.</p> <p>Where a bill is filed for the correction of a mistake in the execution of a bond, and to restrain the defendants from taking advantage of the mistake in certain suits at law, the defendant may set up, as a defence against the complainant’s right to relief, that the bond was procured by fraud.</p>

<p>If a person becomes surety for one as administrator, who at the time is a debtor to the estate and is insolvent, and is never able to discharge such indebtedness, such surely is not bound for such a delinquency of his principal. He is only bound for the faithful performance of his duties as administrator.</p> <p>If, under such circumstances, the administrator should, in the settlement of his accounts with the court, charge himself with the debt, and the accounts should be passed in such a shape as to bind the surety for the debt, the surety would be relieved, upon application to the proper tribunal, from such responsibility.</p> <p>But it' at the time the surety assumes his responsibility, the administrator owes the estate, and is solvent and able to pay, the amount of the debt will be considered, in law and equity, as so much money in his hands as administrator at that time, and consequently the surety will be responsible for it.</p>

<p>The Court of Chancery in this state has never adopted the principle, that because its jurisdiction has once rightfully attached, it will retain the cause, as a matter of right, for the purposes of complete relief. See Brown et a!, v, Edsall et al.j I Stockton 256.</p> <p>All bills in the court are, in tlieir nature, bills of discovery. Some are bills for discovery purely. When the subject matter is one which is properly cognizable at law only, and adequate relief can be given there, a Court of Chancery frequently takes jurisdiction, in order that a discovery may be had on the oath of a party, or to compel the production of papers and documents. The end for which the jurisdiction of the court was invoked having been attained, the party seeks his redress in the proper tribunal at law.</p> <p>A mere bill of discovery cannot properly pray for relief. Where, upon the facts stated, the relief prayed for by the bill is proper, the bill is something more than a mere bill of discovery.</p>

The bill states, that on the 12th of January, 1812, Benjamin Carman conveyed, by deed of bargain and sale in fee simple, to the said Lucas and Elizabeth Carman, their heirs and assigns, certain lands, in the bill particularly described, in consideration of the sum of §6000; that Theodosia Lucas died July 1, 1821, leaving the complainants her heirs at law; that, in 1815, Elizabeth Carman married one 'William Idell; that Idell and wife occupied, with Theodosia Lucas, the lands…

<p>The witnesses, by whom the defendant endeavored to prove that he paid part of the purchase money for the property in dispute, relied upon conversations had with the complainants and upon declarations, they had made. The evidence was not satisfactory, and the conversations and declarations admitted of a different construction.</p> <p>Held, that as the defendant had the opportunity of stating, in his answer, when, where, and how he paid any part of the purchase money, that the answer amounted pretty much to a confession of the case made by the bill.</p>

After the bill was filed, and before the time had expired for any further pleading, a preliminary matter 'arose upon the petition of the complainants, involving, in a measure, the merits of the case, as presented by the bill. A reference was made to a master, and witnesses were examined, both by the complainants and defendants, upon notice. The examination was conducted in the usual way upon direct and cross-examination.

Henry McEwen, the defendant, was found a lunatic, by inquisition, dated August 31, 1864, which found that he had been a lunatic “for one year last past and upwards.” The complainant filed her petition for divorce August 26, 1864. The grounds alleged for divorce are abuse and ill treatment. The abuse and ill treatment is alleged to have taken place at various times, and in particular in October, 1841, and in March last.

<p>This court has concurrent jurisdiction with the Orphans Court in the settlement of accounts of executors and administrators. It may assume this jurisdiction to the exclusion of the Orphans Court in any case where the ends of justice may seem to require it. If any progress has been made in the Orphans Court in the settlement of an account, the Court of Chancery ought not to interfere with that tribunal, unless there is shown some good cause for its doing so.</p>

<p>At law, a judgment and execution constitutes no lien upon a mere equitable interest.</p> <p>A court of equity may aid the judgment creditor in reaching that interest, and secure to him a preference, to which by diligence he has entitled himself.</p> <p>A judgment and execution creditor cannot subject a property, in which an equitable interest had been secured to his debtor by declaration of trust, to the payment of the judgment, debt. Where there has been no fraud in the transaction, no property of the debtor covered up by it, no creditor injured; where the debtor has never paid any part of the consideration money, or ever had any legal title to the property in question.</p> <p>If the debtor had ever paid any money upon the property, to the extent of such payment, the court might subject the property to the execution, on the ground of its being the debtor’s own earnings.</p> <p>As a general principle, when an execution creditor has acquired an equitable lien, it cannot be destroyed or impaired by the voluntary act of the debtor or his trustee.</p> <p>An equitable lien may be lost by negligence and unreasonable delay.</p>

The bill was filed on the 6th of May, 1851. John Naughright answered the bill. The other defendants did not answer. Depositions were taken on both sides. The case made by the bill is this : On the Ed of March, 1848, John Frone and wife executed a mortgage upon certain lands in the county of Morris, the subject of this suit, to secure the sum of $400.

<p>CONSTRUCTION OF WILL.</p> <p>“ I give and bequeath unto my beloved wife, Susan Ward, all my property, “ both real and personal, to be disposed of in such manner as she may think “ proper for the benefit of the family; it is my wish that my youngest daugh- “ ters, Mary and Caroline, shall have an education equal to my daughter “ Phebe, and my two sons, Sydenham and John, to be educated and fully “ prepared to enter college, or the study of a profession; but provided either “ of them should not choose to have such an education, the one who does “ not, to be made equal in property to the expense of educating the other, “ in which case the mother is to be judge, or in case of her decease my ex- “ ecutors, whom I shall appoint. After the children arrive at age, I leave it “ discretionary with Susan, my loving wife, what donation to make them “ out of the property, and in case of her decease or marriage to be left with “ the executors, whom I shall hereafter name, but in every respect I wish “ them made as near equal as can be."</p> <p>Testator appointed his wife, his brother, and brother in law executors. The wife alone proved the will, the others renounced.</p> <p>Held, that Susan Ward took the property in trust for herself and children while she lived and remained his widow; that the property was to be used for their mutual benefit, “ in such manner as she might think propel-,” except in the particular specified by the testator, and so that in every respect the children should have an equal share of his property.</p> <p>That Susan Ward had no right to dispose of the property in question by will; that it belonged to the children by the will of their father, and is to be divided among them equally.</p>

<p>A. employs B., as his agent, to purchase a house for him. B. makes the purchase, takes the deed in his own name, and pays his own money for it. A. cannot compel B. to convey.</p> <p>It is within the statute of frauds, which requires the contract to be in writing.</p> <p>In order to take the case out of the statute, on the ground of part performance, two things are requisite, the terms of the contract must be established by proofs to be clear, definite, and unequivocal, aud the acts relied on as part performance must be exclusively referable to the contract.</p> <p>The disposition of courts at the present day is to limit, rather than extend exceptions to the statute.</p>

<p>Joseph M. Stilwell and Joseph R. Stilwell were the administrators of Benjamin Stilwell. They were both deceased. The bill called upon the executors of Joseph M. Stilwell for a resettlement, and to account for the estate of Benjamin Stilwell, and to pay complainants their distributive share. Held, that if they were entitled to a distributive share, they could not call upon the executors of a surviving administrator for any such account: that the executors did not represent the estate of Benjamin Stilwell.</p> <p>Benjamin Stilwell, at his death, left his brother, Joseph R. Stilwell, and two sisters surviving him. The complainants were the heirs at law and next of kin of Joseph R. Stilwell. Held, that as they stood in the place of Joseph R. Stilwell, they had no right to complain of his fraudulently using what they claimed through him.</p>

<p>A testator gives and bequeaths all his property in trust for the payment of certain annuities and legacies, and then says, “ And to my two aforesaid daughters I give and bequeath the residue of all my estates, real and personal.</p> <p>Held, that the legal title to the residue passed by the will to the daughters. That the annuities and legacies were a charge upon the estate, but when, they were satisfied the estate was discharged of all trusts.</p>

The hill is filed to compel the specific performance of an agreement. The defendants filed a general demurrer to the hill. Sufficient of the case appears in the opinion of the Chancellor to understand the points decided.

<p>II. K. and W. made an assignment for the benefit of creditors. On the personal property assigned, there was a mortgage, the bona fides of which was not disputed. The assignee having sold tile property, and converted it into money, the mortgagee, or person claiming under him, has an equitable lien oti the proceeds of sale for the payment of the mortgage.</p> <p>The interest of a mortgagee in personal property, where the possession remains with the mortgagor, and before condition broken, cannot be taken in execution as the property of the mortgagee. A mortgagor’s interest in personal property is the subject of execution and sale, a mortgagee’s interest is not.</p> <p>In Now Jersey, the same doctrine prevails as to the respective rights of mortgagor and mortgagee of personal property, and as to the character of their respective interests, as governs mortgages of real property.</p> <p>A judgment and execution creditor of the mortgagee may file a bill of discovery against an alleged fraudulent assignee of the mortgagee, and if the assignment is fraudulent, the creditor is entitled to the mortgage fund. The statute avoids all difficulty which might have existed to a creditor's maintaining his bill for a discovery as to property not subject to execution.</p> <p>An assignment may be fraudulent although it was made for a valuable consideration. If the purchase was not bona, fide but was made to defraud creditors, the assignment is not valid, although an adequate consideration was given.</p> <p>Under the circumstances, the court declared the assignment good only so far as to reimburse the assignee for the actual advances made by him.</p>

Mr. Schenck now moved to dissolve the injunction granted on filing the bill, and among other grounds, because subpoenas bad not been issued.

<p>A person may make an agreement, which will be legally binding upon him, to make a particular disposition of his property by last will.</p> <p>A court of equity will decree the specific performance of such an agreement upon the principles which govern the court in the exercise of this branch of of its jurisdiction.</p> <p>Although the agreement is by parol, if there is a part performance of such a character as, upon the principles recognised by the court, will take a parol agreement out of the statute of frauds, then there is nothing peculiar about an agreement of this kind to exclude it from the operation of those principles.</p> <p>If one party to a parol agreement has wholly, or partially, performed it on his part, so that its non-fulfilment by the other party is a fraud, the court will compel a performance.</p> <p>Although a party has a right to the protection of the court, if that protection cannot be given him without invading the rights of innocent parties, its aid will be refused.</p>

<p>A father placed trust funds in the hands of his son in law, for the benefit of his daughter. The son in law purchased real estate with the trust funds, and took the deed in his own name.</p> <p>Held, that the court would protect the real estate against a judgment and execution creditor of the husband.</p> <p>Where property is so held by the husband, and he expends his own money, to a large amount, in making improvements upon the trust property, for the purpose of protecting it from his creditors, the court might properly refuse its aid in protecting the trust property, and certainly would not interfere, except so far as to protect the fund in the property belonging to the wife.</p>

<p>A. brings an action at law against B. B. files his bill in this court, and enjoins A- from prosecuting his action at law. Afterwards the bill is dismissed. This court, upon a bill filed by A., will prevent B. from taking advantage, by a plea of the statute of limitations, of the time which A. was enjoined, by the process of this court, from prosecuting his action at law, if B. obtained that advantage by the action of this court in the suit instituted by B.</p> <p>Where a court of equity has, by the solicitation of a suitor invoking the aid of the court for his relief, interfered with the legal rights of another, and impaired his legal remedy, it is the duty of this court to protect the party whose rights have been thus interfered with against any undue advantage attempted to be taken by the other party at whose solicitation the power of this court was called into action.</p> <p>One acknowledged principle on which courts of equity give relief, is to prevent an advantage gained at law from being used against conscience.</p> <p>It appearing, in this case, that the party lost his legal remedy, not by the action of this court, but through his own laches and negligence, relief was denied.</p>

<p>The Morris and Essex Railroad Company have no right to occupy or use Broad and Centre streets, in the city of Newark, in the manner the same are now appropriated by them, without the consent of the mayor and common council of the city of Newark.</p> <p>The legislature has the power to authorize the use of a public highway for the purpose of a railroad, in such a manner as not entirely to destroy its use in the ordinary mode. The use of public highways belongs to the public, but they have not been dedicated to any particular mode of travel or use. It is perfectly consistent with the purposes for which they were originally designated and intended that the public authorities, who have the control of them as public highways, should adapt them in their use to the convenience and improvement of the age.</p> <p>The legislature must be the judges as to the benefit to the public, and to their authority individuals and the public must submit.</p> <p>The authority to use a public highway for the purposes of a railroad, retaining the use of such highway for all ordinary purposes, subject only to the inconvenience of the railroad, is not such taking of private property from the owner of the fee of the adjacent lands as is contemplated by the provision of the constitution, which provides that individuals or private corporations shall not be authorized to take private property for public use without just compensation first made to the owners. The easement of the highway is in the public, although the fee is technically in the adjacent owner. It is the easement only which is appropriated, and no right or title of the owner interfered with. If the legislature authorizes the company to take the highway, and appropriate it to its own use, by destroying the ordinary and legal right of the public to use it as a highway, then compensation must be provided ; because when the rights of the public in it ceases, then the use of it reverts to the person who holds the fee in the land. Then the legislature authorizes to be taken something which belongs to the land owner, to wit, the use of the land.</p> <p>It follows further, that an adjacent land owner cannot maintain an action at law for consequential damages, unless he can show a negligent exercise by the company of their legal rights; because no action at law will lie for a consequential injury necessarily resulting from the exercise of a legal right under legislative authority .* 4 Com. 195 ; 10 Barb. 369 ; 18 Barb. 222.</p> <p>The complainants were authorized to construct a railroad from Morristown to Newark. That was the object of their incorporation; and it is manifest, from the whole act, that it was the intention of the legislature to confer all the powers necessary to enable the corporators to carry out the object for which they were incorporated. But it does not follow that because the legislature intended to confer upon the company all the powers necessary for them to carry out the object for which they were incorporated, that they are therefore necessarily clothed with all powers to meet that necessity; and that when not expressed, such powers are to be derived by implication. In a limited sense, the proposition is true, when the power sought to be implied does not take away or impair the legal rights of individuals or of any other corporation.</p> <p>The public rights in the highways of the state can be impaired or interfered with by nothing short of the authority conferred by the sovereign power. That authority must be expressly given; or if conferred by implication, it must be a necessary implication.</p> <p>Held, that the right is not given by this charter in express terms, and it cannot be implied, from any of its provisions, to appropriate, for the purpose of their railroad, more than one half mile of the principal public highway of Newark without the consent of the appropriate public authorities of the city.</p> <p>That the acts of defendants, upon which complainants rely as establishing consent, are not sufficient. There was no license given to the company, either by parol or in writing; and no fraud can be inferred from the fact, that the defendants did not interfere, but stood by in silence, while the complainants expended their money in the construction of tlieir road upon the public highways.</p> <p>There is no legislative sanction, either in the supplement of 2d March, 1836, or in the further supplement of 22d February, 1838, to the company’s occupying any public highway, without first obtaining the consent of the proper legal authorities. They will not warrant such a construction.</p>

<p>Where a person renders services to another, relying solely upon his generosity, and expecting to be compensated by a legacy, he cannot, when disappointed in such expectation, maintain an action at law for the value of his services.</p> <p>A court of equity will look at all the circumstances of the case, and will judge from them as to the quo animo with which the services were rendered; and . although a reasonable expectation was entertained, which was disappointed, will only allow compensation if it is equitable that such allowance should be made.</p> <p>An old lady, upwards of eighty-five years of age, lived with her son. She placed money in his hands, from time to time, for investment: he collected the interest, as it was due, and paid it over to her. This continued for eight years. Ail allowance for commissions for such services was refused.</p>

<p>CONSTRUCTION OF WILL.</p> <p>A testator made certain specific devises and bequests to several of his children. He then gave a life estate to 1ns wife in liis real and personal property not specifically disposed of. He then declared that his real and personal estate, after the death of his wife, unless his wife chose to give up the estate before her decease, should be sold, and divided among certain of his children; and then declares, that if any of his children should die without lawful issue of the body begotten, then his. her, or their share, or legacy, should be equally divided among the survivors, share and share alike. Held, that he used the term survivors with reference to the period when Iho estate should be divided, after the happening of the event mentioned iu his will, to wit, the death of his wife.</p>

<p>Where the testator directs a sale of land to be made, and the proceed to be divided among his heirs at law, they may elect to take the lands, and a court of equity will secure to them the benefit of that election.</p> <p>Where all interested had entered into an agreement to divide the real estate itself in such proportions as they deemed just in reference to their respective interest in the proceeds, and it appeared that the parties had lived ten years under the agreement; that the ownership of the property had become so changed that the agreement could not be disturbed without grossly violating the rights of some of the parties to it, and fraudulently depriving them of their property; that the executors had acquiesced in it, and induced such a state of things as made it a fraud in them to disturb it, the court said, that the plea that such an agreement was illegal because one of the parties was a feme covert, came with an ill grace as a defence on the part of the executors, who had subsequently sold a portion of the property released under the agreement.</p> <p>At the time of the execution of the agreement, the husband of one of the parties had been absent six years and upwards. The report was that he was dead: it was so considered by the family. When the executors sold the property, he had been absent sixteen years, and the party was married again. At that time, no court of law or equity would have disturbed the agreement on the ground alleged.</p> <p>But although the executors acted in bad faith, and in violation of the rights of those interested in the will of the testator, it does not follow, as a consequence of their fraud, that a sale made by them is void, they being authorized by the will to sell the land, and there being no proof that the grantees were cognizant of the agreement.</p> <p>Where the purchase money of such sale had been wrongfully paid over to one not entitled to it, the court held complainants entitled to an account, and ordered the money brought into court.</p>

<p>A residuary disposition will carry all the contingent or reversionary interest which a specific devise shall leave undisposed of. Generally speaking, where a specific devise fails on account of its being void ab initio the property so devised will go to the heir at law. But if the specific devise dispose only of a partial or contingent interest in the lands, leaving an ulterior or alternate interest undisposed of, that would, in the absence of disposition, descend to the heir. Such undisposed of interest Will pass by a general residuary clause.</p> <p>Every residuary devise of real estate, however general the terms of it, is in its nature specific. As this principle follows from the fact, that the devisor can only devise the lands to which he is actually entitled at the time of making his will, a question might arise, how far, in New Jersey, it should be considered applicable to after acquired lands, since, by the statute of 1851, the distinction between real and personal estate in this particular is abolished.</p> <p>Where no directions are given by the testator for the payment of his debts, specific legacies must be appropriated before real estate devised; but where the testator makes his debts a charge upon his real as well as personal estate, o :upon his estate generally, the devisees and legatees must bear their respective share of the burthen pro rata; and this is the case where the testator commences his will with a general direction that his debts shall be paid.</p> <p>The testator left four daughters, two grandsons, children of a deceased son, hit deceased son’s widow, and his own wife, the devisees of all his property He first directs his executors to pay off and discharge all his debts. He give; to his wife, during her natural life, the sole and exclusive use of all his plate, books, &c. To his daughter in law, he devises the sole and exclusive ust and occupancy and all the rents and profits of the Biddle farm, to be hell and enjoyed by her from the time of his decease until the 25lhMay of Marcl immediately preceding the time when his grandson should arrive at the agi of twenty-one years, with the proviso, and upon the condition, that his said daughter in law should, within three months after his decease, execute and deliver to his executors a full and absolute release and discharge of all claims and demands she might have agaiust his estate. To his two grandsons, from the said 25th day of March, he gives the Biddle farm, as joint tenants, with remainder to their issue in fee, and in default of issue to the right heirs of the testator. He also gives to his grandsons one third part of his pine lands and cedar swamp. To his four daughters, the testator gives his homestead farm and two-thirds of his pine lands and cedar swamps, with an estate of the same character as that devised to his grandsons. He then devises and bequeaths to his four daughters, to their heirs and assigns for ever, all the rest, residue, and remainder of his estate, to be equally divided among them share and share alike, subject only to the payment of all just claims against him on note, or book of account, funeral charges, testamentary and incidental expenses, and commissions. The testator left one specialty debt, which was a bond debt, the principal of which was $6000, and which was due to his daughter in law. She refused to comply with the proviso under which the devise was made to her, under the will, of the Biddle ihrm. All the personal estate which passed under the residuary clause had been appropriated to pay the simple contract debts, and there was a deficiency. There was no other personal estate, except the specific legacies to the widow. As to the simple contract debts, it was admitted that the specific devises must contribute pro rata.</p> <p>Held, that as to the simple contract debts, the interest of the residuary devisees in the Biddle farm must contribute pro rata with the other specific devises to pay the simple contract debts, but as to the specialty debt, it is not liable to contribution. Decreed that the residuary personal estate be first appropriated to pay the simple contract debts of the testator and expense of settling the estate; that the specific legacies and devises contribute pro rata to make up any deficiency; and as to the specialty debts, the specific devises, except th. t of the Biddle farm, which fell into the residue, first contribute pro rata to pay the specialty debts, the residuary devise of the Biddle farm being liable only in the event of a deficiency of all other property to pay the specialty debts.</p>

<p>On a bill filed on behalf of an infant complainant to compel executors and trustees under a will to account for the estate of the testator which has come to their hands, and for the execution of their trust, complainants are entitled to an account as a matter of course.</p> <p>The testator directs that all the residue of his personal estate, after payment of debts and legacies, shall be invested in productive real estate. This does not authorize the executors to purchase vacant lots, and erect buildings upon them. Such property cannot be considered productive real estate.</p> <p>The testator authorizes his executors to make suitable and convenient improvements and necessary repairs on the real estate in their possession. This, in connection with the language used as to the purchase of productive real estate, is inconsistent with the idea that the testator meant his executors to purchase vacant lots, and erect buildings upon them.</p> <p>The testator directs the disposition of a surplus, which he contemplates will remain after the improvements made: this hardly comports with the idea that they should use the funds in their hands indiscriminately in the erection of buildings.</p> <p>The testator creates two funds with his property. The real estate left by him at his death, with such real estate as the executors are authorized to purchase with his personal property, constitute one fund. The residue of the proceeds of all his real estate, after paying for improvements and repairs, is to be kept annually at interest, and this constitutes another fund.</p>

<p>J. K., of the firm of McM., R. & Co., -when the firm was in failing circumstances, conveyed his real estate to F. D., in trust for his wife. The deed was set aside in favor of the complainants, who were judgment and execution creditors of the firm, on the ground, that from the answer of the defendants, and the proofs in the case, it appeared that no consideration was paid, and that it was executed for the purpose of protecting the property from the creditors of the firm.</p>

<p>The complainant applied to the defendant to parchase his farm. After some negotiation, it was agreed between them, that if the complainant would purchase the Butz farm, the defendant would exchange his farm for the Butz farm and a thousand dollars. At the request of complainant, defendant went to consult his wife and family; and on returning, said they would all assent to the arrangement. Complainant then purchased the Butz farm; and being obliged to leave, authorized his brother, as agent for him, to enter into a written agreement with defendant for the exchange of farms. The agreement was executed, by which it was agreed that complainant should convey, free and clear of all encumbrances, the Butz farm to the defendant, and that, on the same day, defendant should convey his farm to complainant; and complainant agreed to pay the difference of one thousand dollars: the wife expressed herself satisfied with the agreement. At the time appointed, complainant tendered his deed, signed by himself and wife, with full covenants, and the defendant tendered a deed not signed by his wife.</p> <p>Held, that as the refusal of the wife to unite with her husband in the conveyance was owing entirely to the contrivance and fraud of the defendant, who in this way was endeavoring to deprive the complainant of the benefit of a specific performance of the contract, that the court should order the agreement performed, and the conveyances to be so made between the parties that the complainant may hold in the land which he conveys an indemnity against any future claim to be set up by defendant’s wife.</p> <p>It was objected that the wife was not a party to the bill, and that no decree could be wade against her to execute the deed, as she was not a party. But the Chancellor said no decree could be made against her, if she were a party. If she had actually signed the agreement with her husband, it would have been void as to her.</p> <p>A feme covert cannot' make any contract, except as to her separate estate. Had the wife been made a defendant, a demurrer, as to her, would have been sustained.</p> <p>It was further said, that the deed tendered was a substantial compliance with the agreement, because it contained a covenant to indemnify the complainant ; but it was held that no court would say that a mere personal covenant was sufficient indemnity.</p> <p>A want of mutuality in the contract was urged as an objection against the decree, that the agent who signed for the complainant was not legally authorized ; but it is no legal unyielding obstacle to the court’s making a decree, that the contract is signed only by one of the parties.</p> <p>It was argued that the decree would in effect force the wife into executing the deed, which should be her free and voluntary act. The Chancellor said, “ Upon a careful examination of all the authorities, if the alternative were presented to me of making a decree for specific performance by procuring the wife to join in the deed, or to dismiss the bill, I should accept the latter.”</p> <p>The power of the court to direct indemnity in such a case cannot be denied ; it is the proper and natural mode of administering equity between the parties.</p> <p>Cases where the wife’s refusal to join was bona fide, and not the result of the husband’s interference, or cases where an action for damages would give adequate redress, are not within the ruling in this case, by Ryerson, J.</p> <p>The controlling equity of the case is, that upon the faith of his agreement with Young, complainant was drawn into the purchase of the Butz farm, and was thus placed in a position from which he could not extricate himself. He bought the farm not for himself, but for Mr. Y’oung. Potts, J.</p>

The case sufficiently appears from the opinions delivered. The cause was argued in the Court of Chancery, by Peter Vredenburgh and J. F. Randolph, of counsel with complainants, and Daniel B. Rgall and Garret D. Wall, of counsel with defendants. Halves, C. At the term of January, in the year eighteen hundred and forty-five, a decree was made dismissing the complainants’ hill with costs. From this decree an appeal was taken.

<p>That a judgment and execution creditor may maintain a bill in a court of equity to remove out of the way fraudulent encumbrances placed by a debtor upon his property, in order that the property may be appropriated free from such fraudulent encumbrances to the satisfaction of the creditor’s judgment, is well established.</p> <p>When a creditor has by a judgment established his debt, by the statute he acquires a lien upon all the real estate of his debtor to satisfy his debt. If the debtor lias fraudulently conveyed away or encumbered his real estate, so as to interpose an obstacle which embarrasses the debtor in appropriating it by legal process in satisfaction of his debt, then the creditor may file his bill to remove out of the way such fraudulent conveyance or encumbrance. It is not necessary for him to take out execution upon his judgment. It is, perhaps, most advisable for him to do so ; it may avoid a contest with a subsequent execution creditor.</p> <p>Bui if it is the personal property of the debtor which the creditor wishes to reach and appropriate to the payment of his judgment, he must take out an execution upon his judgment before he can exhibit his bill; for it is by the execution, and not by the judgment, that he acquires a lien upon the personal property.</p> <p>It is not enough for the bill to show that the debtor has made a fraudulent disposition of any particular portion of his property to entitle the creditor to the aid of a court of equity; he must show that such disposition embarrasses him in obtaining satisfaction of his debt. Facts must be stated from which, at least, the inference may be drawn that the aid of a court of equity is required to give the judgment its legal and full effect.</p> <p>Bill defective on demurrer.</p>

<p>A participation in the profits of business constitutes a partnership as to third persons: so where the evidence in the cause showed to a reasonable degree of certainty that one was to share in the profits of a business carried on in the name of another, it established the partnership.</p> <p>Although the business bo carried on in the name of one alone, and neither suppose that they are partners, although they did not intend to become partners, and, as between themselves, were not partners, yet the law may hold them fiable as partners as to third persons upon an agreement to share in the profits.</p> <p>Where money was loaned at six per cent., but in case the debtor’s business succeeded, he was to pay twenty-five per cent., such contract, though usurious as to the borrower, as to third persons made the debtor and creditor partners.</p> <p>The objection to a witness on the ground of incompetency on account of his being a partner, not made until after the direct examination, is not well taken in point of time, A party cannot speculate by waiting to discover whether the testimony of a witness is favorable or unfavorable, and then interpose his objection at pleasure. Williamson, O.</p>

<p>Admitting it to be true that the capital stock of an insurance company was not bona fide paid in, and that the company commenced the business of insurance in violation of the express provision of the charter, yet this court ought not to interfere with suits brought upon bonds in a court of law for the purpose of aiding the complainants to avoid their payment, where it appears that the bonds were given in payment for the stock of the company, that the complainant received his certificate of stock, and that upon these bonds, as a portion of the capital, the company embarked in business.</p> <p>The question is a legal one, and the complainant may avail íúmself of it, as far as it is a defence in the suit at law.</p> <p>Upon the ground that it is against public policy to permit the company to enforce a bond given in violation of law, the complainant may have the right to defend himself at law and in equity, and yet not be entitled, as a complainant in this court, to be relieved against their payment.</p> <p>A complainant who invokes the equitable powers of this court will be compelled to do equity before he obtains its aid.</p> <p>The charter declared that the capital stock should be actually paid in before it shall be lawful for the said company to commence the business of insurance, and the company is authorized to invest its capital in public stocks, bonds, and- mortgages, and such other securities as the directors may approve. It appeared that the whole capital was securely invested; that the subscription to the stock was made in good faith; that the company went on and insured upon the faith of this capital. It was held that individuals who gave their obligations to constitute this capital could not repudiate them on the ground that the stock had not been subscribed and paid in. The securities are not void because, instead of going through the formality of receiving the money, and then paying it back and taking securities, the directors took the securities without this ceremony.</p> <p>One stockholder in a company, because he has an unsettled account with them, or any other matter of dispute, has no right to bring a company into this court to settle all their accounts as a company.</p> <p>When the complainant does equity, and pays up the installments already assessed and the costs of the suit at law, the court will protect him against any assessment not levied upon other stockholders.</p>

The bill alleges, that George Woodruff was in his lifetime seized and possessed in fee simple of a certain farm, situate in the township of… Held: exercised, and enjoyed, and do still claim, hold, exercise, and enjoy, subject how'ever to the provisions of the original charter, all the corporate powers of the said corporation, and all the real estate, works, and franchises so as aforesaid sold and conveyed by said receivers, and in which is included the real estate sold and…

<p>Parol evidence is admissible for the purpose of establishing an allegation of fraud in the inception of a release.</p> <p>Where the fact was established that the parties to a general release, at the time of the execution of it, understood perfectly that the object, and the sole object, was to make the relessee competent as a witness, in a pending suit; it cannot be used to bar a recovery on a bond and mortgage.</p> <p>That the relessee intended at the time to make use of the opportunity to obtain a general' release, and turn the transaction from an innocent to a fraudulent purpose, makes him a fraud doer.</p> <p>Where any one has done an act or made a statement which it would be fraud on his part to controvert or impair, and such act or statement has so influenced any one that it has been acted upon, the party making it will be estopped and cut off from the power of retraction.</p>

This appeal was taken from an order dissolving an injunction issued to restrain proceedings at law. The motion to dissolve was argued before the Chancellor, by Mr. Frelinghuysen, and Mr. Bradley, for the complainants, by Mr. Randolph, for the Hudson County Bank, and Mr. Gilchrist, for the other defendants. On the sixth day of February, 1856, it was ordered that the injunction be dissolved with costs. From this order an appeal was taken.

This cause was .heard at May term, 1855, of the Court of Chancery. Sarah Williams, the wife of the complainant, died in the year 1834. The complainant took out letters of administration upon her estate. He exhibited this bill against Daniel Carle, as the administrator of Ann Carle, who was the sister of Mrs. Williams, and against his three children by his said wife.

The bill in this canse was exhibited to foreclose a mortgage, made by Daniel A. Baldwin and Abby Ann his wife, bearing date the first day of October, eighteen hundred and fifty-two, and delivered to John Yan Yorst, the complainant, and set forth in the said bill exhibited in this cause.