Volume 14 — New Jersey Equity Reports

This cáse cáme before the coüít on a motion to dissolve an injunction. The facts of the case are stated in the Chancellor’s opinion»

<p>The facts are stated in the Chancellor’s opinion.</p>

<p>This cause came before the Chancellor, on a bill of inter-pleader, under the following circumstances:</p> <p>William Hollinshead the elder, by his will, dated in February, 1809, devised certain real estate to his son William, and directed that “ at the decease of my son William, I will that his said part of my landed property be given to his surviving children according to law.” The testator died in 1812. In November, 1853, William Hollinshead the younger and his two children united in conveying the property thus devised to the complainant, who thereupon gave a bond to William Hollinshead, secured by a mortgage, conditioned to pay him the interest on the purchase money during his life, and at his decease to pay the principal “ to his surviving children according to law.” William Hollinshead the younger died in 1860, leaving a son and a daughter (defendants in this cause) his only surviving children. At his death, it being conceded that the principal sum secured by the bond and mortgage was to be paid to the same persons who would have taken the land, and in the same proportions, Samuel W. Hollinshead claimed that he was entitled to two-thirds of the money, according to the law of this state regulating descents prior to 1817. Mary Ball, the daughter, claimed that she was entitled to half the money under the present law of descents.</p> <p>Thereupon complainant filed her bill of interpleader against the defendants.</p>

<p>On the petition of Alice C. Herron for a writ of assistance.</p>

<p>The defendant was proceeding at law to recover the possession of premises under a deed executed by R. A. M. to him, which was absolute on its face. The complainant, having obtained a subsequent deed from R. A. M. for the same premises, filed a bill in this court, alleging that defendant’s deed was intended as a mortgage to secure a debt of $?5, due from R. A. M., and praying that he may be allowed to redeem, and that defendant be restrained from proceeding at law. On filing the bill, an injunction was issued.</p> <p>The defendant, by his answer, denied that the deed was intended as a mortgage, claimed that it w'as absolute, that the consideration actually paid by him -therefor was $450, admitted that he had verbally agreed with R. A. M. to recon véy the premises on being repaid the consideration within a certain time, which has elapsed, and that before the filing of the bill be bad offered to convey the premises to complainant on that sum being repaid to him, which offer was refused. On a motion to dissolve the injunction, it was held—</p> <p>That the answer denied all the equity of the bill, because—</p> <p>1. If the deed was absolute, the complainant had no equity; and—</p> <p>2. If the deed was a mortgage, it was forfeited, and the defendant was entitled to proceed at law for the possession of the mortgaged premises.</p> <p>The injunction was therefore dissolved.</p>

<p>This case came before the Chancellor on exceptions to a master’s report.</p> <p>The complainant and defendant had been partners in a contract for the construction of the Flushing railroad, on Long Island, and the bill was filed for an account and settlement of their partnership business, and a reference was made to Aaron S. Pennington, esq., one of the masters of the court, to take and state an account between the parties. On the coming in of the report, exceptions were filed by both parties, the grounds of which sufficiently appear in the Chancellor’s opinion.</p>

<p>This cause was heard on the bill, answer, and testimony.</p>

<p>The facts sufficiently appear in the opinion of the Chancellor.</p>

Tliis was an amicable suit, the bill being filed by the executors of Benjamin McCoury to obtain the direction of the court as to the true construction of the will of the testator.

<p>This case came before the Chancellor on a demurrer for multifariousness and for want of equity.</p>

<p>The act of the legislature of 1857, which declares that divorces from the bond of matrimony may be decreed for desertion for the term of three years, does not repeal that part of the act of 1856 which requires that one of the parties shall have been a resident of this state for five years. To maintain such a suit, five years’ residence of one of the parties in this state is still necessary.</p> <p>In a suit for divorce on the ground of desertion, where the parties were married in New York, and were domiciled there, and the desertion took place there, after which the wife comes to this state, leaving her husband and children remaining in New York, does she, by such removal, become a resident of this state within the spirit and meaning of the act — • query.</p> <p>When an actual residence is adopted in this state, under circumstances which warrant the conclusion that the change of residence was made for the purpose of obtaining a divorce, sound policy forbids that the judicial tribunals of this state should be used by citizens of other states in evasion of their own laws, or to procure redress for which resort should have been had to their own tribunals.</p>

<p>This was a motion to dissolve an injunction, wliicli liad been issued on the filing of the hill. The grounds of the motion were—</p> <p>First. That the answer fully denies the equity of tlio bill.</p> <p>Second. Want of diligence in tbe prosecution.</p>

This was a bill filed to sot aside a sale of real estate, made by tlie defendant as administrator de bonis non cum testamento annexo of Adam Smith, the grandfather of complainant. The circumstances under which the sale was made are fully stated in the Chancellor’s opinion. The grounds were— First. That the administrator had no authority to make the sale. Second.

<p>In making proof of the execution of an instrument, the attesting witness to which is dead, proof of the signature of the subscribing witness alone is prima facie evidence of the due execution of the instrument. But it is by no moans conclusive. The execution of the instrument, when the subscribing witness is dead or cannot be produced', may be proved by other evidence, and it is usual in such cases to give evidence also of the handwriting of the party to the instrument.</p> <p>It has been a vexed question, whether in all such cases the signature of the party executing should not also be proved.</p> <p>The evidence in this case held to be insufficient to establish the execution of the instrument in controversy.</p> <p>A grantee cannot set up for his own protection under an absolute deed the existence of a parol trust.</p> <p>When a grantor of real estate takes the note of the grantee for a part of the purchase money, and at the same time executes to the grantee an instrument of writing acknowledging that the note is not to be paid, “ as it is understood that I deed him my farm to keep creditors off until such time as I can sell my farm without a sacrifice, and the proceeds of such sale shall go to pay my creditors,” ..." and the said R. L. S. (the grantor) is to deed the farm to any one that I may order at any time.” On a bill filed by the grantee against the grantor to restrain the collection of the note, and to establish and settle a trust of the real estate alleged to be subsisting in the hands of the grantor, it was held—</p> <p>That such an instrument is not the declaration of a trust in writing, as required by the statute of frauds, but is a mere arrangement to hinder and delay the creditors for the benefit of the grantor, which is void in law as against creditors, and which a court of equity will not sustain.</p> <p>Nor, on the other hand, will a court of equity relieve a party from the effect and obligation of such a contract voluntarily entered into. As between the parties themselves, a conveyance of land to hinder or defraud creditors is valid, and will not be set aside or relieved against at the instance of either party, each of whom is particeps criminis.</p> <p>The real estate conveyed in this case was situate in the state of New York. Held that the trust sought to be established cannot be enforced in this court. The land is not within its jurisdiction nor under its control.</p>

<p>On a bill filed to recover dower in a lot of land, which had been purchased by the husband of the plaintiff, subject to a mortgage given by a former owner, it appeared that the equity of redemption had been sold by the sheriff, in the lifetime of the husband, on an execution against him, to a purchaser who afterwards paid the mortgage debt and took no assignment of the mortgage, but caused it to he cancelled of record, and after-wards transferred the title and the bond and mortgage to the defendant. Under these circumstances it was held—</p> <p>That if the purchaser of the equity of redemption had taken an assignment of the bond and mortgage, and thus become clothed with the rights of the mortgagor, and seized of his estate, it would have constituted a valid defence to an action of dower at law.</p> <p>Though the widow is entitled to dower in the mortgaged premises, she must take as the heir and purchaser take, subject to the mortgage debt.</p> <p>Although she cannot at law enforce her claim of dower against the mortgagee or his assignee, in equity she may redeem pro tanto, and may thus recover her dower upon the payment of such portion of the encumbrance, or subject to such deduction on account of the encumbrance as is equitable and just.</p> <p>The purchaser of the equity of redemption having cancelled the mortgage, thus manifesting an intention to extinguish it, and not to rely for protection on the title of the mortgagee, has deprived himself of all defence at law against the claim for dower.</p> <p>But in equity the wife’s right of dower is not relieved from the encumbrance of the mortgage debt. The owner of the equity of redemption was required, for the protection of his estate, to pay the'debt or submit to a foreclosure and sale. His voluntary payment of the debt for the protection of his estate ought not in equity to prejudice his interest or enure to the benefit of the mortgagors whose estate he holds.</p> <p>The wife can only avoid the effect of a mortgage which encumbers her dower, and be restored to her right of dower in one of two modes :</p> <p>1. When the debt shall be paid and satisfied by the husband, or by some person acting in his behalf or in his right.</p> <p>2. By a redemption pro tanto by payment of an equitable proportion of the mortgage debt.</p> <p>At law, when the land is aliened in the lifetime of the husband, dower is recoverable only to the value of the land at the time of the alienation. So in equity she ought to take her estate subject to the encumbrances subsisting upon it at the time of the alienation, and should derive no advantage from the satisfaction of such encumbrance by the alienee to his prejudice.</p> <p>■■The husband did not die seized of the estate. The widow is therefore entitled to dower only from the time of demand, or, if no demand be made, from the time of filing the bill.</p> <p>The value of complainant’s interest will be ascertained by deducting from the present value of her life estate in the premises her proportionate share of the debts. The present value of the life estate is to be ascertained upon the principles of life annuities, to be calculated upon the basis of the tables prescribed by the rules of this court. Her proportionate share of the debt will bear the same ratio to the entire debt that the present value of her life estate bears to the entire estate.</p>

<p>The material facts in this case are fully stated by the Chancellor in his opinion.</p>

<p>The complainants filed their bill, praying, first, a decree that the defendant specifically perform an award, previously made between the parties by arbitrators, touching the fairness and equality of a partition of lands formerly held by them as tenants in common; and secondly, that if the court decline to decree specific performance of the award, that it will ascertain whether the partition was fair and equal, and if not, will make such decree as will equalize it. The defendant answered that part of the bill which seeks a performance of the award, and demurred to the remainder for the following cause, assigned among others: because the fairness of the partition cannot be questioned, while the complainant, by his bill, insists upon the validity of the award, and asks a performance thereof.</p> <p>Defendant also demurs orally to the bill on the ground of multifariousness.</p> <p>Held, that the first ground of demurrer is well taken. The complainant, in his bill, insists on the validity of the award, and demands its performance. If the award is valid, both parties are concluded by it, and the validity of the partition cannot be drawn in question.</p> <p>The fact, that the validity of the award is contested by the defendant’s answer cannot be material; so long as the complainant claims the benefit of it, it will, at least as against him, be deemed valid until it is declared inoperative.</p> <p>The bill is also demurrable for multifariousness.</p> <p>The objection of multifariousness includes not only cases where by one bill the plaintiff demands several matters of different natures against several defendants,, hut also the uniting of several matters perfectly distinct and unconnected against the same defendant.</p> <p>The objection in the latter class of cases is more properly termed misjoinder, and the question in such cases is often one of expediency in the conducting of suits rather than of principle.</p> <p>This objection, though it might have been fatal upon demurrer, will not be sustained upon final hearing if the court is satisfied that no embarrassment or confusion will result in the making or execution of the final decree. On the other hand, if the court anticipate such result, it will, of its own motion and upon final hearing, insist upon the objection.</p> <p>This bill contemplates three objects, viz. to enforce the award, or if that fails, to declare the partition unequal or fraudulent, and to adjust or equalize the shares of the parties entitled. These objects are not only totally distinct but inconsistent.</p> <p>The demurrer being sustained as to a part of the bill, for the cause specially assigned, the rest of the bill not covered by that ground of demurrer remains in court, and the complainant, as to that part of his case, may proceed as if there had been no demurrer.</p>

This cause came before the Chancellor on exceptions to the master’s report. The bill was filed for the foreclosure of a mortgage. A reference was ordered to a master to take an account of the amount due on the several encumbrances, and to settle their priorities.

<p>Personal estate is the primary fund out of which legacies are payable. The real estate is not charged with the payment of legacies -unless the testator intended it should be, and that intention must be either expressly declared or fairly and satisfactorily inferred from the language and dispositions of the will.</p> <p>When the only expression in a will which tends to manifest an intention that the real estate should either be charged with or sold for the payment of legacies, is the following clause occurring immediately after the appointment of the executors, viz. “ investing them with all power necessary to execute that ample trust,” such expression is not sufficient, standing alone, to charge legacies upon real estate.</p> <p>Parol evidence of the declarations of a testator, at the time of making his will, as to his meaning and intention, or of the instructions given to the scrivener who drew the will, or of the scrivener’s understanding of those instructions, is clearly incompetent. Parol cotcmporaneous evidence is inadmissible to contradict or vary the terms of any valid written instrument. The rule applies to all written contracts, whether required by the statute of frauds to be in writing or not. Such evidence is only admissible for the purpose of removing or explaining a latent ambiguity.</p> <p>In regard to wills the rule is inflexible, that parol evidence of the testator’s intention is inadmissible, not only because the written instrument, which he has made the depository of his meaning, is the best evidence of his intention, but also because wills are required by the statute of frauds to be in writing, attested by subscribing witnesses.</p> <p>It is well settled in this court that parol evidence is admissible as to the amount and nature of the testator’s estate, or other extrinsic circumstances, in order to ascertain the testator’s intention to charge legacies upon real estate or to exonerate the personalty, although the decided ■weight of the English authorities would seem to be against the admissibility of such evidence.</p> <p>In order to discover the intention of the testator, the court may put themselves in the place of the party, and then see how the terms of the instrument affects the property ox subject matter. With this view evidence is admissible of all the circumstances surrounding the author of the instrument.</p> <p>Proof of the fact, that at the timo of making the will testator’s personal estate was entirely inadequate to satisfy the legacies bequeathed by the will; that the legacies equalled the combined value of the personal and real estate not otherwise disposed of; and that unless the real estate can be applied to the payment of the legacies the testator would be intestate as to the bulk of his estate, although creating a strong impression that the testator intended to charge the legacies upon the real estate, yet, standing alone, are not sufficient, as against heirs, to subject the land to the payment of the legacies.</p> <p>Heirs have always been looked upon with favor by courts of justice, and the rule is well settled that plain words are required to disinherit them, and equally' plain words are necessary to charge the estate of an heir, for a charge is pro tanto a disinherison of the heir.</p> <p>When, however, the testator had no inheritable blood, left no lineal descendants, nor could by' legal possibility have any heir to whom the estate could descend m case of intestacy, but it must escheat to the state, in such ease the legal presumption in favor of the heir cannot exist to influence the construction, and the only question is whether the testator intended that the legacies given should fail, and the land es-cheat to the state, or whether the real estate should be applied to carry into effect the trust which he had created.</p> <p>Held that the legacies in this case were intended to be a charge on so much of the land as was not specifically devised by the testator. When legacies are charged on the land, and there are specific and residuary devisees, the legacies will mot be charged upon the lands specifically devised.</p> <p>The natural and reasonable presumption is, that when a will is executed the testator designs to dispose of his entire estate, and does not intend to d,ie intestate as to any part of his property.</p>

<p>This bill is filed by William Annin and Peter D. Vroom, executors of John Annin, deceased, who was the surviving executor of Jacob Vandoren, deceased, against the administrator of Lenah Vandoren, the administratrix of John Vandoren, and John M. Wyckoff, who was the agent and attorney in fact for Lenah Vandoren, under the following circumstances :</p> <p>Jacob Vandoren, the testator, by his last will, dated September 12th, 1810, and which was admitted to probate on the 21st of September, 1811, gave to his daughters, Lenah and Mary, certain articles of furniture. He also gave the residue of the proceeds of the sale of certain real estate, including all his rights and credits after the payment of all just debts and expenses, unto his four daughters, Auley Logan, Elizabeth Annin, Lenah Vandoren, and Mary Vandoren, to them and their heirs, share and share alike, to be paid as soon as the estate could conveniently be settled. The executors were also directed to take charge of and lease a farm, called the “ Compton farm,” during the life of the testator’s son John, and on his death the farm was to be sold by the executors; and the proceeds of the sale he gave and devised to his four daughters (above named) and to the children of his son John, equally to them and their heirs.</p> <p>By a subsequent clause of the will, the testator directed as follows:</p> <p>“ Should my daughters Lenah and Mary, or either of them, die leaving no legal issue, the share or shares herein bequeathed to her or them (if not paid over by my executors, and if paid over, then such part thereof as remains unexpended,) I give and bequeath unto my surviving children and their heirs equally between them.”</p> <p>The executors of testator paid over to Lenah her share of the estate. She died in June, 1859, unmarried, leaving a part of her share unexpended in the hands of John M. Wyckoff, her agent and attorney in fact, amounting to about $1250.</p> <p>The complainants filed their bill to, ascertain and determine the true construction of the will, and the prayer of their bill was, among other things, that John M. Wyckoff account for all moneys and securities that were in his hands as agent of Lenah, and that the balance in his hands might be decreed to be paid over to complainants; that just and reasonable commissions might be allowed them for the performance of their duties as executors; or' if in the opinion of the court that it did not rightfully belong to the complainants to receive and administer the fund, that they be discharged from all responsibility and from all further duty and trust in relation thereto, and for further relief.</p> <p>• The administratrix of John Vandoren answered the bill, claiming that by the words “surviving children,” in the clause last quoted, the testator meant children surviving at his death, and not at the death of the daughters, and therefore that if the limitation over was good his estate was entitled to a share of the unexpended fund.</p> <p>The administrator of Lenah Vandoren filed an answer claiming that the limitation over was void, and that the legacy was an absolute gift to her.</p> <p>John M. Wyckoff also answered the bill, claiming that the limitation over on the death of Lenah was inoperative, and that the fund vested absolutely in her; that she left a will, dated in 1853, of which he was the sole executor; that the will had been improvidently destroyed. He prayed that the will might be established, and that the fund be decreed to belong to him, as executor of Lenah.</p> <p>The material facts were all admitted by the pleadings.</p>

The moneys of the petitioner were intrusted to William King, by whom they were invested in the purchase of real estate. The title was taken in the name of William. King, who afterwards died intestate, leaving an infant child his heir at law, in whom the title to the land became vested. The cestui que trust has always been in possession of the land. .He now asks an order that the land be conveyed by the infant trustee' to, the petitioner.

<p>Tlio complainant filed this bill to foreclose two chattel mortgages given by the defendant. The first to S. T. II., to secure certain debts due to him from the mortgagor, and to indemnify him against loss on notes endorsed by him for the mortgagor. This covers household goods, stock, farming utensils on a farm in Rahway, specified in a schedule annexed to the mortgage. Complainant claims under this mortgage by assignment. The second mortgage was given to the complainant to secure a debt of the defendant to him, and also to J. A. C. It includes the property covered by the first mortgage, and also other property and rights of the mortgagor, which are described as “ all the right, title, and interest of the said J. L. H. in and to the tools, fixtures, &e., now in the U. S. Malleable Iron Factory at Newark, N. J.”</p> <p>On a demurrer to this bill, it was held—</p> <p>First. That J. A. C. was a necessary party to such a bill. As a general uule, there cam be mo- foreclosure unless all the persons entitled to the mortgage money are before the court. A person entitled to a part only of the mortgage money cannot file a bill to foreclose a mortgage as to his own part of'the money. All the beneficiaries should be made parties as well as the trusteei</p> <p>Second. The property- included in- the second mortgage is not ascertained or described in the bill with sufficient certainty. A bill for the foreclosure of a'chattel mortgage should show of what the property consists, the mortgagor's titl'e ou claim of title to it, and that it is within the juris- . diction of the court.</p> <p>Third. The bill is obj ectionable in its statement of the complainant's rights under the first mortgage, in that it contains no averment that the notes endorsed by the mortgagor, and against which the mortgage was given as an indemnity, were ever assigned to the complainant, nor that the principal of said notes remains unpaid. This objection is not cured by the fact that these averments are made in the affidavit annexed to the bill.</p> <p>Fourth. The second mortgage is not void on the ground that it is against the policy of the statute regulating assignments for the benefit of creditors. The instrument purports to be not an assignment for the benefit of creditors, but a mortgage for the payment of certain specified debts.</p> <p>The objection to the bill on the ground of multifariousness is not sustained.</p>

<p>On a bill filed for the foreclosure of three mortgages, two of which were given to W. II. 33., and were encumbrances on the premises when the defendants acquired title, and are hold by complainant by assignment from W. II. 33. The third was given by defendants to complainant. Usury was set up as a defence.</p> <p>Held, as to the third mortgage, that the proof failed to sustain the charge of usury.</p> <p>As to the first two mortgages, the usury alleged consisted in V. II. 33. taking more interest than was due upon them at the time of their being assigned to complainant, in pursuance of an arrangement with defend" ant, and as a compensation for receiving payment of the debt without notice, and contrary to a previous understanding between the parties.</p> <p>Held, that this did not affect the validity of the mortgages in the hands of the assignee. When the security is valid in its inception, no subsequent taking, or contract to take, illegal interest will invalidate it.</p> <p>The only effect of the payment of interest on the bond to a period later than the date of the assignment, if the payment bo endorsed on the bond, or be made with the knowledge of the assignee, would be to dimmish by the amount overpaid the interest which the assignee would bo entitled to recover.</p>

<p>"When a bill is filed by a judgment creditor against his debtor, not for the sole purpose of having a conveyance alleged to be fraudulent set aside as against creditors, but also prays that in case the conveyance should not be decreed fraudulent, that the complainant’s judgment should be declared an encumbrance on the property in the hands of the alienee, should this relief be granted the suit will enure to the benefit of the complainant alone, and not to the benefit of other creditors of the defendant.</p> <p>Where the design of a creditor’s bill is to declare the property of a defendant subject to the lien of any of the attaching or judgment creditors, all the creditors having liens upon the property are entitled to be heard and have their liens protected.</p> <p>A party who has obtained & judgment before the filing of a bill by one creditor to set aside a conveyance as fraudulent should be made 'a party to that suit, and cannot be deprived of his equitable rights by the wilful or negligent omission of the complainant in that suit to make him a party.</p>

THis was a bill for partition, filed May lOtli, 1860, by Tames H. Heater against Jolm T. Van Auken, William T. Hockenbery, Thompson Heater, and others, to obtain a partition of real estate devised by John Timbs to his stepdaughter, Mary Heater, during her life, and after her death to her children.

Tlie pleadings and evidence in this case establish the following facts: On the 15th of January, 1849, Joshua Depue executed to Richard A. Rjmrson a bond and mortgage to secure $4000, a part of the purchase money for the mortgaged premises, which wore conveyed on the same day by Ryerson to Depue, by a deed with full covenants of warranty and against encumbrances.

<p>The separate estate of a married woman will be held liable for all debts which she does expressly or by implication charge thereon, and a bill may be maintained by the creditor to enforce such equitable lien against the separate estate of the wife.</p> <p>An agreement that the debt shall be paid out of the separate property is a charge upon the separate estate.</p> <p>If the bill may be maintained upon the ground that the indebtedness is an equitable charge upon her separate estate, it seems clear that equity will protect such equitable lien by injunction.</p> <p>The real ground for not sustaining the bill of a general creditor against the fraudulent disposition of his debtor’s property is, that the debt is no charge or lien upon the property of the debtor.</p> <p>If a woman, during coverture, contract debts generally, without indicating an intention to charge her separate estate with the payment of them, a bill will not be entertained to enforce payment out of her separate estate.</p>

<p>In 1828, B. mortgaged to A. P. one acre of land to secure $1700, and after - wards, in 1829, conveyed part of the mortgaged premises to E. O. P., and on the same day A. P. released the part so conveyed from the operation of his mortgage. On the following day, A. P. assigned his mortgage to C. R. A. with notice of the release of part of the mortgaged premises; the land thus convoyed and released subsequently became vested in the complainants.</p> <p>In 1844, C. R. A. filed his bill for the foreclosure of his mortgage, and 'made the complainants parties to the suit, and taking no notice in his bill of the release of part of the mortgaged premises, procured a decree for the sale of the whole premises, including the part thus released. After the decree, but before a sale under it, O. R. A. informed the complainants that he disclaimed all right to the land so held by them, and all intention to disturb them in respect thereto.</p> <p>The entire mortgaged premises were afterwards sold by the sheriff, under the decree, to the defendant, who at the time of his purchase knew of the release, and of the claim of complainants under it.</p> <p>Held, on a bill filed by complainants to restrain the defendant from proceeding at law to recover the possession of that part of the mortgaged promises owned by them, and from aliening the title thereto, that the facts furnished a strong case for equitable relief, and the injunction granted on filing the bill was made perpetual.</p>

This was a hill to foreclose two mortgages on certain real estate of the Rockaway Manufacturing Company, in which sundry lien claimants, who had filed lien claims for labor and materials furnished in the erection and repairing of buildings on the mortgaged premises were made defendants. The controversy in the cause was mainly concerning the validity and order of priority of the lien claims of W. R. and M. Sayre, and J. Decasse, two of the defendants.

<p>The widow of a mortgagor (having united in the mortgage) is not entitled to dower against the mortgagee, or those claiming under him, although the equity of redemption of the husband has, by release or conveyance, been united to the legal title of the mortgagee.</p> <p>The mortgagee, having purchased the equity of redemption, has united the equitable title of the mortgagor to his own legal title. He holds the legal estate by virtue of the mortgage; and when the wife is a party to the mortgage, or the mortgage is given prior to the coverture, she can only claim her dower subj oct to the mortgage, and that not at law, but in equity only.</p> <p>If she seeks to enforce her legal right to dower she can do so only by redeeming tbe mortgage.</p> <p>The widow having the right of redemption by virtue of her interest as doweress, the party having the estate under the mortgage is entitled to foreclose. The right of the mortgagee and mortgagor, with regard to foreclosure on the one hand, and redemption on tho other, are mutual. The existence of the former involves that of the latter.</p> <p>The mortgagee is entitled to a decree that the widow of the mortgagor shall redeem the mortgage, or that her equity of redemption be foreclosed.</p>

<p>A testator directed his executor to invest and keep invested the sum of $5000, and to pay the interest arising therefrom to M. V. D. Q-. during her life; and if the said M. V. D. Gr. should die leaving a child or children lawfully begotten, then to pay the principal sum to such child or children, share and share alike ; and if no child should bo living of the said M., but grandchildren, then to pay over the said sum to such grandchildren equally ; but if the said M. V. D. Q. should die leaving no child or grandchildren lawfully begotten, then I direct my executor to pay over the said sum to James V. Vanderpool, William Vanderpool, and Maria Van Dyke, and their heirs and assigns, share and share alike.</p> <p>James V. Vanderpool and William Vanderpool died in the lifetime of M. V. D. G., and she afterwards died leaving no children or grandchildren.</p> <p>Meld that James V. Vanderpool and William Vanderpool took a vested interest in the fund, and that their representatives are entitled to claim their respective portions thereof.</p> <p>The fact that the enjoyment is uncertain never interferes with the vesting of an estate. When the contingency is not in the person, but in the event or in the time of enjoyment, the interest is vested.</p> <p>It is the present capacity of taking effect in possession, if the possession should ever become vacant, not the certainty that it ever will become vacant while the remainder continues, which distinguishes a vested from a contingent remainder. In the former, the enjoyment only is uncertain, in the latter, the right to that enjoyment.</p> <p>A legacy given at or after any future specified period or event is not vested, and the legatee’s right to it depends upon his being alive at the time fixed for its enjoyment.</p> <p>The rule, however, is subject to exception, and when there is no other gift than in the direction to pay or distribute in futuro, yet if such payment or distribution appear to bo postponed for the convenience of the fund or property (as where the future gift is only postponed to let in some other interest), the vesting will not be deferred till the period in question.</p> <p>The general policy of the law and the rules of interpretation require that legacies in all cases, unless clearly inconsistent with the intention of the testator, should be held to be vested rather than contingent.</p>

<p>When a payment has been made upon a mortgage debt, by which the lien upon the mortgaged premises was diminished, it is not in the power of the mortgagee to revive the lien for the original amount by refunding or reloaning the money paid to the prejudice of a bona fide encumbrancer whose encumbrance is subsequent to the mortgage, but prior to the repayment ; and the case is not altered though no receipt for the payment is endorsed on the mortgage.</p> <p>If the complainant in a suit for the foreclosure of a mortgage stands in the position of a trustee for a third person, to whom he is bound to account for payments made to him, and such third person is not made a party to the suit, the bill is defective for want of necessary parties, and should be dismissed.</p> <p>No principle of equity pleading is better settled than that there can be no foreclosure unless all the persons entitled to the mortgage money are before the court. The cestui que trust should be a party to the bill as well as the trustee.</p> <p>L., the complainant, files a bill to foreclose first and third mortgages upon premises on which A. had held a second mortgage, which had been foreclosed, and the premises purchased by A. under his decree’of foreclosure, to which decree L. was not a party.</p> <p>Seld that L’s rights under his third mortgage cannot be affected by the decree of foreclosure and sale and conveyance to A. under his mortgage.</p> <p>The price for which the property was purchased at that sale cannot affect the equities subsisting between the mortgagees. The subsequent encumbrancer can only redeem by paying the full amount of A’s mortgage debt.</p> <p>'Costs were denied to a complainant in a foreclosure suit where he acted unreasonably and oppressively in demanding a much larger sum than was legally or equitably due on his mortgage under a threat of immediate prosecution, and when the defendant had been diligent in endeavoring to ascertain the amount from the complainant and his solicitor in order to pay the mortgage debt.</p>

<p>If the assignee of a mortgage, fraudulent in its inception, and void as against creditors, purchase the mortgage with knowledge of the fraud, ho is not a bona fide purchaser, and the fact that he paid full consideration for the assignment will not aid him.</p> <p>In a suit by the assignee to foreclose such a mortgage, the onus of proving that complainant is not a bona fide purchaser is on the defendant.</p> <p>The title of a bona fide purchaser of such a mortgage without notice of the fraud is valid as against the creditors of the mortgagor. The distinction which has been made in some cases between a deed to defraud creditors and a deed to defraud subsequent purchasers held to be without foundation.</p> <p>The rights of the bona fide purchaser from the fraudulent grantee are not impaired by the fact, that judgments were recovered by the creditors against the fraudulent grantor prior to the conveyance by the fraudulent grantee.</p> <p>A concealed defect or secret equity arising from the conduct of those who previously owned the property, of which the purchaser had no notice, cannot be set up against him.</p>

<p>J. B. C., the defendant, being a member of the plaintiff’s association, borrowed of plaintiffs §2000, and for security, executed to them a bond and mortgage, the condition of which bond was as follows, viz. that the said I. B. C. should pay to the complainants the interest on the principal sum of §2000, together with the regular monthly instalments of one dollar on each share of the capital stock of the association then owned by him on the first Monday of each month thereafter, the said interest at the rate of one half of one per cent, monthly thereafter until the said principal sum of §2000 shall be paid; and in case the said J. B. O. shall neglect to pay the said regular monthly instalments of one dollar on each share of stock aforesaid for the space of six calendar months, or in case six months’ interest, or that amount of interest at the rate aforesaid on the said principal sum of §2000 shall be at any time in arrears and unpaid, if the said J. B. C. shall immediately pay to the complainants the whole of said principal sum of §2000, with lawful interest thereon as aforesaid, then said bond or obligation shall be void.</p> <p>At the same time J. B. C., owning ten shares of the stock of the association, as required by the constitution of the company, transferred the said ten shares of stock to complainants as collateral and additional security to the mortgage.</p> <p>Afterwards, J. B. C. executed a second mortgage on the same premises to H., and subsequently, being in failing circumstances, conveyed the mortgaged premises to H. in fee.</p> <p>Subsequent to the mortgage and conveyance to II., judgments at law were recovered against J. B. C. hy other creditors, and executions issued thereon and levied on the ten shares of stock transferred by him to the complainants.</p> <p>On a bill filed to foreclose complainants’ mortgage, it was held—</p> <p>That on a default by J. B. C. in the performance of the condition of his bond, the complainants were entitled to recover the principal of the bond, §2000, with the arrears of interest due thereon, without any deduction for the monthly instalments which had been paid hy J. B. O. on his stock, or for the premium on the loan or fines paid by him to the association.</p> <p>That if, hy the default of a member of the association, his mortgage is forfeited, he must pay the mortgage debt, as any other obligor not a member must do. The benefit of his membership he receives in the value of his shares when the scheme is accomplished.</p> <p>The defendant, II., has no equity as against the execution creditors of J. B. C. to have the securities marshalled so as to compel the complainants to exhaust the ten shares of stock in satisfaction of their mortgage before resorting to the land covered by their mortgage.</p> <p>The principle of marshalling securities in favor of creditors is a familiar one, constantly recognised and acted upon in courts of equity. But it will never be applied when it is injurious to a third party over whom the party claiming the benefit of the principle has no superior equity.</p> <p>The transfer of the shares to the association is in the nature of a pledge rather than of a chattel mortgage. The shares remain the property of the shareholder for every purpose excepting that of defeating the lien of the association. The principle is applied wherever a stockholder pledges his stock to the corporation of which he is a member. He retains his rights of membership.</p> <p>It seems that goods pledged or leased by the defendant in execution may be taken in execution subject to the rights of the pawnee or lessee.</p> <p>Where the pledgees do not object to a levy, but admit its validity and the rights of the plaintiff in execution subj ect to the satisfaction of their own claim, can a third party object to. the levy ? — Query.</p> <p>But however this may he, the claim of the execution creditor is good in equity. Such levies upon property, to which the defendant in execution has no legal title, are constantly recognised in equity when the plaintiff in execution comes into this court for equitable relief.</p>

<p>When usury is set up as a defence to a mortgage, in the absence of more specific allegation, and of any averment of the place of the contract, the defence must bo limited to a violation of the statutes of this state against usury.</p> <p>Courts will not ex officio take notice of foreign laws, and consequently they must, when material, be stated in pleading.</p> <p>If the defendant designed to roly upon the fact that the contract was usurious under the laws of Pennsylvania, it was incumbent upon him to show it as well by his pleading as by his proof.</p> <p>Having failed to do so, to grant an application made at the hearing of the canse to supply the defect by amending the answer, or by filing a supplemental answer, would not be in accordance with the practice of the court.</p> <p>The design of the amendment is not to correct any mistake or misstatement in the original answer, hut to set up substantially a new ground of defence. The court with groat difficulty permits a supplemental answer when an addition is to be pnt upon the record prejudicial to the plaintiff; nor will the court, as a general practice, permit a defendant to change his answer after the cause has been hoard upon the evidence, and there has been any expression of opinion from the court.</p> <p>In the construction of the statute against usury, courts have held, with nndeviating uniformity, that when the real transaction was a loan no shift could evade the statute. No matter under what guise the loan was concealed, whether by sale of goods, transfer of stock, taking bond for larger amount than loaned, passing off depreciated paper,, or by any other expedient, the court will strip off the guise, and ascertain the true nature of the transaction.</p> <p>The service of an attachment upon mortgaged premises after the execution and delivery of a mortgage, but before it is recorded, creates no lien upon the prior estate of the mortgagee, if the mortgage is recorded before judgment is entered on the attachment.</p> <p>The statute declares an unrecorded mortgage void only as against a subsequent judgment creditor not having notice of the mortgage, hut leaves it in full force as against an attaching creditor.</p>

<p>Subrogation as a matter of right, as it exists in the civil law, from which the term has been borrowed and adopted in our own, is never applied in aid of a mere volunteer. Legal substitution into the rights of a creditor, for the benefit of a third person, takes place only for his benefit, who being himself a creditor, satisfies the lien of a prior creditor, or for the benefit of a purchaser who extinguishes the encumbrances upon his estate, or of a co-obligor or surety who discharges the debt, or of an heir who pays the debts of the succession.</p> <p>It is only in cases where the person advancing money to pay the debt of a third party stands in the situation of a surety, or is compelled to pay it to protect his own rights, that a court of equity substitutes him in the place of a creditor as a matter of course, without any agreement to that effect. In other cases the demand of a creditor which is paid with the money of a third person, and without any agreement that the security shall be assigned or kept on foot for the benefit of such third person, is absolutely extinguished.</p> <p>Notice of an equitable lien will operate to charge the estate in the hands of the purchaser, but no notice will serve to render operative as an encumbrance a claim in itself inequitable.</p>

<p>A conveyance of real estate by a father to his son held, under the circumstances of this case, to be an advancement.</p> <p>The clause in a deed acknowledging payment of the consideration is merely prima facie evidence, and according to the current of American cases and the well settled doctrine in this state, may he explained, varied, or rebutted by parol proof.</p> <p>The declarations of the father, whether made at the time of the transaction or afterwards, are competent evidence to prove that the deed was intended as an advancement. It is a question of intent, and may be shown by the declarations of the parent or the admissions of the child.</p> <p>If there he no direct evidence of intent, it may be inferred from the amount and character of the gift.</p> <p>The beneficent design of the statute, in securing to all the children an equal portion of the inheritance, is in accordance with the spirit and genius of our institutions. Equality is equity, and it is the duty of the court especially to see that its purpose shall not be frustrated, except upon the most satisfactory grounds and upon the clearest evidence.</p> <p>The administrator of an intestate is not a nec'essary or proper party to a bill for partition between the heirs of the real estate of the intestate, although his personal estate may be insufficient to pay his debts. Neither the administrators nor the creditors of the intestate have any such interest in the land as renders them necessary parties.</p> <p>A partition will not affect any rights, legal or equitable, which the creditor may have. If the land is liable for debts before the partition, it will remain so afterwards.</p>

<p>The well settled rule of equity, that the vendor of real estate has a lien upon the land sold for the purchase money, is recognised and adopted in this state. The taking of the note or bond of the purchaser for the unpaid purchase money will not impair the lien.</p> <p>But the taking of distinct security, either in the shape of real or personal property, from the vendee, or taking the responsibility of a third person, is an implied waiver of the lien.</p> <p>Any act which indicates that it was not the intention of the parties that the purchase money should continue a lien upon the land conveyed is a waiver of the lien.</p> <p>Where the grantor took a note of a third person (who although jointly interested in the purchase, was not a party to the deed,) for a part of the purchase money, and afterwards accepted from the grantee a declaration of trust, whereby it was declared that she held one-third of the land con- . veyed, as a guaranty for the payment of said note, it was held—</p> <p>That the grantor was not entitled to an equitable lien on the whole premises conveyed, hut must he restricted to the security afforded by the declaration of trust.</p>

<p>This was a motion to strike out an answer as frivolous and impertinent.</p>

<p>The statute of limitations is a good plea in equity as well as at law. But the doctrine of equity is, that a direct trust, as between trustee and cestui que trust, is not reached by the statute.</p> <p>The trusts intended by courts of equity not to be reached or affected by the statute of limitations are those technical and continuing trusts which are not at all cognizable at law, but fall within the proper, peculiar, and exclusive jurisdiction of this court.</p> <p>The rule, that an executor who has not proved the will cannot be sued at law by his co-executors who have proved the will for funds of the estate which have come to his hands, is not founded upon a very satisfactory reason, and does not prevail in equity.</p> <p>An executor who has not proved the will, but who is permitted by the co-executors who have proved it, to get into his hands funds of the estate, does not necessarily become a trustee so as to deprive him of the protection afforded by the statute of limitations.</p> <p>If in such case the person so receiving the funds of the estate did become</p> <p>• a trustee, he would not be trustee for his co-executors, nor would they be his cestui que trusts, and to exempt a trust from the bar of the statute, the question must arise between the trustee and the cestui que trust.</p>

<p>When the defendant, hy agreement with one H. D., executed a bond and mortgage to the complainant, in satisfaction of a debt due from II. D. to the complainant on a hill filed to foreclose the mortgage, the defendant cannot set up that he did not receive full consideration from H. D. for his undertaking. That was a mattter entirely between himself and H. D., and neither want of consideration nor illegality of consideration for the agreement between them can in any wise impair the validity of the bond and mortgage given to the complainant.</p> <p>The complainant in such a case is not an assignee of the mortgage, and is not affected by the equities existing between the defendant and H. D., of which he had no knowledge at the execution of the mortgage.</p> <p>As a general rule, the assignee of a mortgage takes the mortgage subject to all the equities subsisting against it in the hands of the original mortgagee. But if the mortgagor, when applied to for information, misleads the assignee as to the amount due, or conceals his equitable defence, or stands silently by, and permits the assignee in good faith to pay his money, and take an assignment for its full nominal value; he cannot afterwards set up his equitable defence against the claim of the assignee for the payment of the entire debt.</p>

<p>It is a well settled general rule that the court has no right to grant an injunction against a person who is not a party to the suit.</p> <p>The exceptions to this general rule consist either of cases where the party enjoined is the mere solicitor, or agent, or tenant of a party to the suit, having no rights involved in the controversy, or where the right has been already determined.</p> <p>Where an injunction has been granted, the complainant must use due diligence in the prosecution of his cause or the injunction will be dissolved.</p>

<p>On motion to dissolve the injunction issued in this cause 'under the circumstances stated in the Chancellor's opinion—</p>

<p>OH BItL AHD CROSS-BILL.</p> <p>In a Bnit for the foreclosure of a mortgage, given by W. on his individual property in this state, as “ additional security” for the payment of a debt of a partnership of which W. was one of the members, and for which debt the creditor also held a mortgage on lands belonging to the firm Situate in the state of Wisconsin, the defendant, the owner of the equity of redemption, claimed that it was agreed, at the time of giving the mortgage, that the creditor was not to resort to the individual property of W. for the satisfaction of his debt until he had exhausted the security afforded by his mortgage on the lands of the firm in Wisconsin, it was helA-^</p> <p>That if it were competent to prove by parol evidence a contract in conflict with the terms and effect of the mortgage, such evidence, to be available, should establish the existence and terms of the contract beyond all doubt.</p> <p>That W., the mortgagor, is not in the situation of a surety for his partner, so that, upon principles of equity, he can compel a sale of the Wisconsin land, and an application of the proceeds to the satisfaction of the debt before resorting to the premises mortgaged by him, because the mortgage was given to secure a note of the firm of which he was a member, and therefore personally liable for its payment.</p> <p>Although the debt for which the mortgage was given was originally the individual debt of the partner of W,, yet it was an encumbrance upon the property of the firm in Wisconsin, and the object of obtaining the loan and giving the mortgage was to relieve that partnership property from the pressure of that encumbrance by extinguishing the debt. The extinction of that debt enured to the benefit of the mortgagor. Under such circumstances, W. cannot claim the character of surety, and as such to stand in the shoes of the mortgagee.</p> <p>If W. was in this situation of a surety, he could not have the relief he claims, because this court cannot compel a sale of lands in Wisconsin, or an appropriation of the proceeds to the satisfaction of complainant’s mortgage. They are beyond the jurisdiction and control of this court.</p> <p>The only remedy which, as surety, he would have in such a case would be, upon payment of the mortgage debt, to have the mortgage for the Wisconsin lands transferred to him from the mortgagee, or if that could not be done, to have the value of those lands deducted from the mortgage debt.</p> <p>Where it appears by the evidence that the Wisconsin lands had already been applied, by way of compromise, ,to the satisfaction of other debts of the firm of much larger amount than the value of the lands, which settlement went to the benefit of W., the mortgagor, he cannot, while enjoying that benefit in equity, ask that the value of that property be held liable for the satisfaction of his mortgage debt.</p> <p>As the purchaser of the equity of redemption from W., the mortgagee, can stand in no better situation than the mortgagor in making such a defence; it is immaterial whether he is a bona fide, purchaser from W., or whether he merely holds the property in trust for him.</p>

<p>In a suit for the foreclosure of a mortgage, where the defence was that the complainants had, before filing their bill, assigned their mortgage to a third person, and it appeared that the agent of the complainants had agreed to assign the mortgage to one W. M. F. for the benefit of A., one of the defendants, who had become the owner of the equity of redemption on condition that K. and EL, the original mortgagees, who had assigned and guaranteed the mortgage to the complainants, would consent to such assignment, and that an assignment had been executed by the complainants to W. M. F., but never delivered to him for want of the consent of K. and EL to the transfer, it was held to be clear that there was no assignment of the bond and mortgage which divested the complainants of their title to the securities, or of their right to recover upon them.</p> <p>The securities being placed in the hands of the agent of the complainants for collection merely, he had no authority to bind the complainants by a contract to assign the securities to their own prejudice, or to the prejudice of their assignors, who had guarantied the payment of the mortgage debt.</p> <p>If such agreement had been made and established by the evidence it could not be enforced by way of defence to a bill of foreclosure. The contract could be made available to the defendant only by a bill for specific performance.</p> <p>The mortgaged premises were situate in Jersey City, and had been sold for taxes, and the complainants having redeemed the land in pursuance of a provision of the city charter, by which a mortgagee is permitted to redeem land sold for taxes, and on foreclosing his mortgage to recover the amount paid for that purpose in addition to his mortgage debt, claimed in their bill a decree in accordance with that provision of the charter, which provision the defendant insisted was repealed by the subsequent general tax law of 1854. It was held that the complainants were entitled to the relief asked for by them; and that although the provisions of the city charter and of the general tax law are inconsistent and irreconcilable, yet that the general law does not operate as a repeal of the charter in the absence of express words for that purpose.</p> <p>Nor can the defendant claim any deduction from the mortgage debt for taxes paid by him on the mortgaged premises. By the express provisions of the act of 1854, the landholder is not entitled to any deduction from the amount of tax assessed upon his land for any debts due and owing by him to creditors not residing in this state, and at the time of the payment of the tax for which the deduction is claimed this debt was due and owing to persons not inhabitants of this state.</p>

<p>The right of a defendant in equity to require from the complainant, who is resident abroad security for costs, does not rest alone on the provisions of the statute. It is an ancient and well established rule, that if the complainant is resident abroad, the court, on the application of the defendant, will order him to give security for costs, and in the meantime will direct all proceedings to be stayed.</p> <p>Nor is it necessary that the complainant should reside out of the state at the time of filing his bill to entitle the defendant to the order. It will be granted if the complainant goes abroad to reside after the commencement of the suit.</p> <p>But the application for security must be made before the defendant takes any step in the cause after notice of the nonresidence or removal. If after knowledge of the nonresidence, defendant takes any step in the cause before applying the order, he thereby waives security for costs.</p> <p>When the defendant’s affidavit or an application for security fails to show clearly that the defendant did not know of the complainant’s removal before taking the last step in the cause the application will be denied.</p>

<p>On an application to the court, on the part of the defendant, to suppress depositions taken by complainant to impeach the character of the defendant for truth and veracity, and to restrain the taking of further evidence upon that point, it was held—</p> <p>That it is not competent for the complainant to discredit the answer of the defendant, or to impair its effect by impeaching the general character of the defendant for truth and veracity.</p> <p>The rule has been perfectly established for two centuries, that the direct and positive answer of the defendant, responsive to the charges of the bill, must prevail unless overcome by two witnesses, or by one witness supported by circumstances, or by equivalent evidence. The admission of extrinsic- evidence to discredit the answer by impeaching the credibility of the defendant is a subversion of the principle of the rule.</p> <p>So far as the answer operates as evidence, it is regarded as the testimony of a witness called by the plaintiff; and a party in whose favor a witness is examined is never permitted, either at law or in equity, to impeach or overthrow his testimony by assailing his character for truth and veracity.</p> <p>The fact, that no instance of an attempt to introduce such evidence can be found in the elementary treatises or in the reported cases in the English courts, shows conclusively that the evidence has been universally regarded as inadmissible, and as a clear violation of the principle of the court.</p> <p>The opinion of Chancellor Desaussure, in Miller v. Tolleson, 1 Harper’s Oh. B. 145, reviewed and criticized.</p> <p>It would seem, from some of the authorities, that if complainant chose to dispense with the oath of defendant, the court, upon his motion, will require the defendant to answer without oath, even without the consent of defendant. But in all such cases the dispensation is supposed to be made for the convenience of the defendant and upon his express or presumed consent. The application may be made on the part of the plaintiff or of the defendant, but the order will only be made when both parties consent, and not against the will of either.</p> <p>The rule is by no means well settled, that because a party cannot avoid making an individual his witness, as in case of a subscribing witness, he is therefore at liberty to impeach his veracity. The authorities are in conflict upon this subject.</p> <p>The-evidence proposed to be suppressed is incompetent, and must be so treated at the hearing. But it is not in accordance with the practice of the court to suppress testimony before the hearing.</p> <p>Depositions, when objected to as taken upon leading interrogatories, or as scandalous, or for some irregularity in relation to them, are suppressed prior to the hearing, and in such case the witness will be permitted to be re-examined.</p> <p>The question, whether the deposition shall be suppressed, is a matter of discretion; and in order that this opinion may be reviewed on appeal, if complainant desire it, the decision of the question will be reserved until the final hearing. The motion is therefore denied, but without costs.</p>

<p>The history of these cases will be found in the opinion of the Chancellor, in 13 New Jersey Chancery Reports (2 Beasley, page 322) which was delivered at February term, 1862. On the 24th of April, 1862, the New Jersey Zinc Company presented to the Chancellor a petition for a rehearing, setting forth that, by the supplemental bill filed by the Boston Franklinite Company, they claimed title to the mines and mining privileges in dispute under the decree of this court on the foreclosure of a mortgage given by the New Jersey Franklinite Company, the defendants in the original suit, to Oakes Ames, on the property in controversy, and a sale thereof by the sheriff of the county of Sussex to Oakes Ames, and a subsequent conveyance thereof to the Boston Franklinite Company by Ames during the pendency of the original suit; that since these causes were argued the petitioners had discovered, by a careful inspection of the record of the proceedings in the foreclosure suit of Oakes Ames against the New Jersey Franklinite Company, that there was no decree in said suit upon which an execution could issue ; that the Court of Chancery of this state was closed from the fourth day of February, 1859, to the fifteenth day of March, 1860, for the want of a chancellor, and that during that period no officer could receive or execute any writ of that court, because the powers and functions of the court were suspended; that it appears by the record that the sheriff of the county of Sussex received the execution, which was pretended to be issued upon the alleged decree in the suit of Oakes Ames, on the seventh of February, 1859, when there was no Court of Chancery which could give him authority to execute any such writ. The petitioners therefore prayed that they might have an opportunity of being heard on that part of the case relating to the title of the Boston Franklinite Company under the aforesaid proceedings in chancery, so that they might have the benefit of the judgment of the court on the same after full argument.</p> <p>The petition was accompanied by the usual certificate of counsel, that they deemed the grounds of the application sufficient.</p>

<p>The voluntary separation by a wife from her husband, while proceedings, at his instance, were pending against her in this court for a divorce on a charge of adultery, does not constitute a wilful desertion in contemplation of law.</p> <p>On the contrary, a regard for public decency, as well as the settled usage of the court, requires that under such circumstances the parties should not live together.</p> <p>The presumption must be, if the wife absent herself from the home of her husband pending a suit against her for adultery, that such separation is by his procurement or with his assent.</p> <p>The court regard the institution of a suit for divorce by the husband against the wife as a sufficient cause for allowing a separate maintenance, and the allowance is made upon the principle that it would be improper for the parties to cohabit during the pending of such suit.</p> <p>Desertion is a question of intention^ It is the intent which constitutes the offence. Any circumstances which render it necessary or proper that she should reside elsewhere than with her husband is a yalid defence to a charge of desertion.</p>

<p>This cause came before the court on exceptions, filed by-complainants, to the report of Levi Shepherd, esq., master in chancery, on a reference ordered by the decree in the principal case, which is reported in 2 Beasley 228.</p>

<p>'On a bill and decree for tbe foreclosure of a mortgage, where the mortgaged premises were insufficient to satisfy the complainant’s mortgage and costs, and a prior mortgage, the amount of which was included in the decree, the complainant asks a decree against all the defendants personally for the costs; the defendants, who were the mortgagors, the prior mortgagee, and the purchaser of the equity of redemption, under a judgment against the mortgagor, resisted the complainant’s claim to foreclose on the ground that the mortgage was fraudulent, it was held—</p> <p>1. As against the mortgagor, the complainant is entitled to costs; he is personally liable for the debt, and his defence is unfounded and unreasonable.</p> <p>2. Ordinarily the purchaser of the equity of redemption would stand in the shoes of the mortgagor, and would be liable for so much of the costs as were occasioned by his ill advised defence; but under the peculiar circumstances of this case, he was held not personally liable for costs.</p> <p>3. The prior mortgagee, having by his answer attacked the validity of complainant’s mortgage, when the protection of his rights required no such defence, his conduct was held vexatious, and costs were denied him out of the estate; and also held, that in strict equity, he was personally liable for all the extra costs occasioned by his answer.</p> <p>Where three defendants employed the same solicitor, and filed separate answers, all presenting the same defence, the only effect of which was to swell the costs and diminish complainant’s security, the practice was declared unwarranted and vexatious.</p>

<p>When usury is relied on as a defence to a mortgage, it is not enough that the relation of the witnesses to each other and the circumstance sworn to by them render it highly probable that the transaction was usurious ; the usury must be proved, not left to conjecture.</p> <p>Nor will it avail the defendant that the case proved makes out usury, if it is not the case made by the answer. The corrupt agreement must be distinctly set out and proved as alleged.</p> <p>The same rule prevails at law, except in the action of assumpsit. In all other forms of action the usury must be specially pleaded and proved as alleged.</p> <p>The general allegation at the close of the answer, that the contract is usurious, does not enlarge or qualify the facts specifically stated and set forth as constituting the usury.</p>

<p>A testator, by a codicil to his will, provided that the share of his estate given by his will to his son Charles should go to his executors in trust “ for the benefit of such child or children as my son Charles now has or hereafter he may have, said executors paying such portion as will be coming to the child or children of Charles equally to them as they arrive at the age of twenty-one years respectively, and until so paid giving them the benefit of the income thereof.” On a bill, filed by testator's son Charles in behalf of his two minor children, to settle the construction of the will, and claiming that the two children then in esse were entitled to the whole income of the legacy, it was held that the benefit of the income of the legacy must enure to the children of Charles now in being: should they die before they are twenty-one, or should other children be born, corresponding changes will be made in the apportionment of the income.</p>

<p>A party -who has utterly failed to perform an agreement on his part can have no claim to a specific performance.</p> <p>Executors have a legal right to buy property of their testator, sold not by them as executors, but by the sheriff, by virtue of executions for the satisfaction of encumbrances subsisting upon the land before their testator acquired title.</p> <p>Property so purchased by executors becomes their individual property, although they are described in the sheriff’s deed as executors, and although they subsequently advertised and sold the land describing themselves as executors. The estate had no interest in the result of the purchase.</p>

This was a bill, filed by the widow and heirs of Daniel Holsman, deceased, to restrain the defendants from polluting a stream of water, which ran through the complainants’ land, by emptying into it the chemicals and other noxious substances used by defendants in their bleaching operations. The grounds on which the injunction was asked, on the one side, and resisted on the other, and the material facts of the case, fully appear in the opinion of the Chancellor.

<p>When a mortgage is sought to be impeached by creditors of the mortgagor as fraudulent and void as against them, the facts that the mortgage was executed by a son to his mother when the son was on the eve of insolvency, and that it was done on the motion of the son himself, and not at the instance or request of the mother, are not in themselves circumstances which furnish conclusive evidence of fraud.</p> <p>A debtor in failing circumstances has an undoubted right to prefer vany creditor, as well a parent or other near relation as a stranger; and if the debt were bona fide due, the strongest considerations of duty may prompt a son to prefer the claim of a widowed mother over the claims of mere strangers.</p> <p>When part of the consideration of a mortgage, alleged to be fraudulent as against creditors, appears to have been for a debt actually and bona fide due from the mortgagor to the mortgagee at the time of the execution of the mortgage, and the residue was without lawful consideration, in the absence of satisfactory proof of actual fraud the mortgage will be sustained to the extent of the consideration actually given, and will be declared void as to the residue, as against the claims of subsequent judgment creditors.</p>

<p>When usury is relied on as a defence to a mortgage, in the absence of any specific allegation and of any statement of the place where the contract alleged to be usurious was made, it will be intended that the defence made by the answer is that the contract is in violation of the statutes of this state, and to that defence the evidence will be limited.</p> <p>It is the well settled doctrine of the court, that if the defence relied on is that the contract is usurious under the laws of any other state in which the contract may have been made, it must be so averred in the pleading. When the contract was made in the city of New York, where the mortgagee resided and had his place of business, it is essentially a New York contract, and its validity must be tested by the laws of that slate. The facts, that the mortgage was formally executed in this state and that the mortgaged premises are within this state are not material.</p> <p>If a mortgage was given for a specific purpose it must be exclusively applied to that purpose. Any other disposition of the security is a fraudulent misappropriation, against which the mortgagor would be entitled to relief in equity.</p> <p>The cases of Cornish v. Bryan, 2 Stock. 146, and Westervelt v. Scott, 3 Stock. 80, held not to be in conflict with this principle.</p> <p>It is no answer to such a defence, that the holder of the mortgage is a bona fide assignee thereof without notice of the misappropriation. The assignee of a mortgage, although a bona fide holder, takes it subject to all the equities subsisting against the mortgage in the hands of the mortgagee.</p>

<p>On a bill of revivor, filed to revive a decree for the purpose of an appeal, it was held, that if the right of appeal is lost, the complainants can have no right to a decree of revivor. The court will not do a mere nugatory act.</p> <p>When one of the parties to the decree sought to he revived and appealed, from was at the time of the decree, and still is a married woman, as to her, the statutory bar to an appeal after three years from the date of the decree does not operate, but the right of appeal continues for three years after such disability shall be removed.</p> <p>One of several persons against whom a joint decree is rendered may appeal and carry up the whole case for review, although the right of appeal may have been lost by the other parties.</p> <p>The fact that tho decree sought to be appealed from has been executed does not deprive the party of his right of appeal. The execution of the decree, either before or after tho appeal, in no wise interferes with tho right of appeal or with the proceedings upon it.</p> <p>A bill of revivor, properly so called, lies where a death intervenes, and it is necessary to bring the proper representatives of the deceased party in the realty or in the personalty before the court. In such case there is no other fact to be ascertained than whether the new party brought before the court as executor, or heir-at-law, has the character imputed to him. If he has, the revivor is of course.</p> <p>But if the death of the party is attended with such a transmission of his interest that the title to it, as well as the person entitled, may he litigated in this court, as in case of a devise of real estate, the suit cannot bo continued by a bill of revivor. An original bill, in the nature of a bill of revivor, upon which the title may be litigated must be filed.</p> <p>Wherever there has been a devise of real estate, and the design is to revive the suit, either in favor of or against the devisee, the heir and devisee must both be made parties.</p> <p>The executors of the original complainant are not necessary parties to a bill of revivor, although by her will she directed them to prosecute the suit, if as executors, they have no interest in the subject matter or in the event of the suit.</p> <p>Parties to the original decree, who can neither execute the decree nor be the objects of its operation, are not necessary or proper parties to the bill of revivor.</p>

<p>A deed, which, though not in form an assignment for the benefit of creditors, is made when the party making it was insolvent, which is a transfer of all the grantor’s residuary interest under a former assignment made in Now York, and all his estate, real and personal, in New Jersey and elsewhere, and creates a trust for creditors, contains all the elements of an assignment.</p> <p>Such an instrument hold to be void.</p> <p>1. Because its operation is to give preference to one class of creditors over another, in direct violation of the terms of the statute.</p> <p>2. Because it reserves to the assignor a control of the property, and provides for the assignor a benefit other than such as will arise from the payment of his debts.</p> <p>3. Because it contains provisions not in conformity with the statute, and hinders and delays creditors by placing the property beyond the reach of legal process.</p> <p>"When both parties to a cause are partially successful, it is in accordance with the usual practice in equity not to allow costs.</p>

<p>On a bill filed by a wife against her husband for a divorce on the ground of adultery, held that if the wife, having knowledge of the adultery, or reason to believe it, continued voluntarily to live with her husband, except for imperative reasons, it constitutes a condonation of the offence, and she is not entitled to a divorce.</p> <p>When it appears that the wife has continued to live with the husband after the offence charged is proved to have been committed, there should be facts or circumstances to show that the offence has not been condoned, or a clear, express, and unequivocal denial by the complainant of knowledge of the husband’s infidelity during the continuance of their cohabitation, and a report of the master adverse to the condonation.</p>

<p>The equity whioh entitles a second mortgagee to the benefit of a release executed by a prior mortgagee, arises only where the first mortgagee gave the release with knowledge of the existence of the second encumbrance. If the release is executed without notice of existing equities on the part of the subsequent encumbrancer, he is not responsible for the . consequences of his act, nor is the lien of his mortgage in any wise impaired.</p> <p>The recording of the second mortgage will not operate as constructive notice of its existence to the prior mortgagee.</p> <p>The claim of a second mortgagee to the benefit of a release by the prior ■ mortgagee is a mere equity resulting from the fact that his security is impaired by the giving of the release. It will not be allowed, unless upon principles of justice and equity it ought thus to operate. If the security of the second mortgagee is not impaired by the execution of the release, no equity will accrue in his favor.</p>

<p>A supplement to the act concerning corporations, approved February 28th, 1849, requires all companies incorporated under the laws of this state, whose charters do not designate their place of meeting, to hold their business meetings and the meetings of their directors in the state of New Jersey.</p> <p>Independent of this statutory provision, it is a rule of law that a private corporation whose charter has been granted by one state, cannot hold meetings and pass votes in another state. It exists by force of the law that created it, and when that law ceases to exist, and is not obligatory, the corporation can have no existence.</p> <p>When it appears that resolutions of the hoard of directors of a corporation of this state authorizing the transfer of stock were passed at a meeting held in Philadelphia, such resolutions are void, and the transfer of stock, in pursuance of them, to the directors' who participated in the illegal proceedings can vest no title in them.</p> <p>On a bill filed to restrain the holders of certain stock in a corporation from selling or transferring the same, or from voting thereon at the then next ensuing election for directors, which was to be held within three days after filing the bill, it was held that, as the effect of restraining the defendants from voting upon the stock might have been to change the result of the election, and the consequent control of the affairs of the company, without giving an opportunity to those holding the legal title to a majority of the shares of being heard in their defence, the injunction in that respect should be denied.</p> <p>The granting and continuing of injunctions rests mainly on equitable ground's, and is not exercised for the mere purpose of protecting legal rights, irrespective of the claim of the party to equitable relief.</p> <p>A resolution passed by the board of directors of a corporation, the design and effect of which was to transfer the property of the company to the directors without value, o>r by way of inducement to them to pay their honest debts to the company, is illegal and void.</p> <p>The fact that the only party to be injured by the transfer of stock, in pursuance of such a resolution, was himself acting fraudulently towards the company, will not justify a violation of their duty on the part of the directors.</p> <p>The acceptance by a stockholder of a dividend upon his stock can be no ratification of the illegal conduct of the directors.</p>

<p>"When, after a conveyance of real estate by a grantor, a commission of lunacy is taken out and executed against the grantor, by the finding in which it appeared that the grantor had been a lunatic, without a lucid interval from a time anterior to the date of the conveyance, and such finding has been confirmed by this court, those circumstances cast a sufficient cloud upon the title of the purchaser to entitle him to come into this court for relief by a bill in the nature of a bill quia timet.</p> <p>The rule is well settled, both at law and in equity, that an inquisition of lunacy, though not conclusive, is competent evidence in proof of the lunacy against persons claiming title under the alleged lunatic; and it is upon this ground that a court of equity will, in its discretion, permit a purchaser, whose conveyance is overreached by the inquisition, to traverse the finding of the jury, upon his agreeing to be bound by the final decision upon the traverse.</p> <p>The fact that the frame of a bill is unusual and without a precedent does not alone constitute an objection to the relief sought, if it can be supported upon principle.</p> <p>Where the vendor is found a lunatic from a date subsequent to the time of the contract to purchase, but prior to the execution of the conveyance, the purchaser may enforce the completion of the contract by a bill for specific performance.</p> <p>"Where the vendor is by an inquisition found a lunatic from a date prior to the contract of purchase the other party may filo a bill for specific performance, and obtain an issue to inquire whether the defendant was a lunatic, or whether the contract was executed during a lucid interval; and if found in his favor, he may have a decree for specific performance. So he may ask, in the alternative, to have the contract either performed or discharged.</p> <p>A court of equity will not, upon the application of the lunatic, or those claiming under him, set aside a contract overreached by a commission of lunacy, if the purchase be fair, for a full consideration, and without notice of the lunacy to the purchaser, especially where the parties cannot, be fully reinstated in the condition in which they wore prior to the purchase.</p> <p>If the proof is clear that an executory contract to purchase was made in good faith, and for a full and fair price, whore the lunacy of the vendor was neither known nor suspected, and that the contract was afterwards executed on the part of the purchaser without the knowledge or belief of the existence of incapacity on the part of the grantor, the contract will be upheld and enforced, even though the incapacity of the grantor at the date of the conveyance should be established.</p>

This bill is filed for the partition of lands whereof Martin J. Van Duyne died seized. The complainant, Hiram Van Duyne, who is a grandson of Martin J. Van Duyne, claims that, under the will of his grandfather, he is entitled to one half the lands devised by the will to testator’s son James and his daughter Hetty.

<p>This was a motion to dissolve an injunction, under circumstances which are fully stated in the opinion of the Chancellor.</p>

<p>On the filing of the bill in this cause, an injunction was granted. The defendant, having answered the bill, now moves to dissolve the injunction.</p>

<p>On a bill filed by a wifo for the protection of her separate property against creditors of the husband, when the bill is exhibited and sworn to by the husband, as the next friend of tlie wifo, but he is not joined as a party in the bill, either as complainant or defendant, it was held—</p> <p>That the husband cannot legally be joined as complainant, his interest which is claimed by defendant, being adverse to that of his wife. Persons having adverse or conflicting interests in reference to tlie subject matter of the litigation ought not to join as complainants in the suit.</p> <p>If the husband and wife join in a suit as plaintiffs, or in an answer as co-defendants, it- will be considered as the suit, or the defence of the husband alono, and it will not prejudice a future claim by the wife in respect of her separate interest, nor will the wife be bound by any of the allegations therein in any future litigation.</p> <p>In a suit by a wife for her separate estate, the husband is a necessary defendant.</p> <p>The practice, when the husband improperly joins with the wife as complainant, is not to dismiss the bill, but to give permission to the wife to amend by adding a next friend, and making the husband a defendant; or when no objection is interposed, to decree the fund to be paid to a trustee for the use of the wife.</p> <p>The objection to such misjoinder may he taken by demurrer, hut it constitutes no ground for dissolving the injunction, if one has been granted. The bill may he amended after injunction granted without prejudice to the injunction.</p> <p>In such a suit, complainant will he required to establish clearly by evidence her sole and separate title; hut when the hill contains an express averment that the title to the real estate now occupied by the complainant is in her, and that the purchase money was paid out of her separate estate, the bill is not wanting in equity merely because it does not show with legal precision how the land originally became her separate property.</p> <p>A wife may lawfully contract in regard to her separate estate, and she will he entitled to the benefit of such contract. With the assent of the husband and father, the labor of the wife and children may he bestowed upon the separate estate of the wife, and thus enure to her benefit.</p> <p>An injunction was granted to restrain a creditor of the husband from selling, in satisfaction of his claim, the proceeds of the wife’s real estate, although such proceeds may have been raised by the labor of the wife and minor children of the husband.</p>

<p>On a bill filed for the specific performance of a contract for the exchange of real estate, an application, made after the cause was at issue and after the time limited by the rule to close testimony had expired, to amend the bill by charging that the contract is fraudulent, and asking that it be declared void, must be denied.</p> <p>Amendments are allowed in equity with great liberality, but, as a general rule, amendments which seek to make a new case inconsistent with that originally made, if allowable at all, should be applied for and made before the cause is at issue.</p> <p>Mere formal amendments, such as the introduction of new parties or amendments to the prayer of the bill, to meet the exigency of the case, will be made up to and after the final hearing.</p> <p>The proper practice, when complainant has mistaken his case, is to dismiss the bill without prejudice to a new bill.</p> <p>Applications to amend should be made promptly after the necessity for the amendment has been discovered.</p>

<p>This was a motion to dissolve an injunction.</p>

<p>When a bill was filed against a railroad company for an injunction to restrain the construction of a railroad, and a rule was granted to show cause why an injunction should not issue, at the time fixed for the hearing of the rulo, and after the papers in the case had beon read on such hearing, the complainants asked for throe orders.</p> <p>1. For leave to amend their bill, to supply an omission which had been made the ground of objection in tlie defendants’ answer.</p> <p>2. For leave to take affidavits to rebut certain allegations in the answer.</p> <p>3. For a temporary order restraining the progress of the work until the hearing.</p> <p>The motion to amend was granted.</p> <p>The motion for a temporary injunction was denied, as being a violation of the spirit of the rule, which forbids the issuing of an injunction to restrain the construction of a public work, authorised by a law of the state, until after hearing upon the rule to show cause.</p> <p>The leave to take further affidavits was also granted.</p> <p>The rule of the court (Hule JX, 4,) in terms requires that affidavits annexed to an answer shall be merely in reply to affidavits annexed to the hill; and it would seem to he a fair and reasonable construction of the rule, that affidavits to rebut an answer should bo confined to rebutting the affidavits annexed to the answer.</p> <p>“Whore, however, the answer is put in by a corporation, the affidavits necessarily cover the whole scope of the answer, and in such case the rebutting affidavits proposed to be taken are within the scope of the rule.</p> <p>Such affidavits must be taken on notice. JSe parte affidavits taken under the requirements of Sale V are not competent.</p> <p>The application for the order to take affidavits is clearly out of timo. It should be made before the reading of the case is commenced. The circumstances of the case held to justify a departure from the ordinary practico.</p>

The bill in this case was filed on the 9th day of April, 1862, for a settlement of partnership accounts, an injunction to prevent the partnership property from being diverted from the payment of the partnership debts, and for the appointment of a receiver. An injunction issued on filing the bill, and due notice was given that an application would be made to the Chancellor, on the 16th of April, for the appointment of a receiver.

<p>Where an attorney deals, either with his client or with others, in relation to the property which is the subject matter of litigation, as where he purchases from his client the property in dispute, in regard to which he has superior means of knowledge, as well as undue influence over his client, derived from his position ; or where, in the absence of his client, he purchases property sold under an execution in his hands, or with the management of which he is intrusted, in such cases the parties are regarded as standing to each other in the relation of trustee and cestui que, trust.</p> <p>In this class of cases, the principle will be applied and enforced, even after the relation of attorney and client has ceased to exist.</p> <p>Wfliere the relation of solicitor and client exists, and a security is taken by the solicitor from his client, as compensation for his services, the presumption is that the transaction is unfair, and the onus of proving its fairness is upon the solicitor.</p> <p>Such security will not be set aside as void, but will be suffered to stand as security for the amount justly due upon it.</p> <p>How far a claim for relief in this court against such a security will be affected by the fact that the contract was made in New York, one of the parties being a citizen of that state and an attorney, not of the courts of - this state, hut of New York — query?</p> <p>Where an attorney, having obtained for his client a bond and warrant of attorney to confess judgment from a debtor, neglects to enter up such judgment, and afterwards obtains a bond and warrant of attorney from the same debtor for a debt due to himself, and enters up his own judgment first, so as to obtain priority over his client, these circumstances constitute a gross breach of duty on the part of the attorney, and present a clear ground of equitable relief.</p> <p>A complainant who has filed a bill against his attorney to set aside securities, on the ground that they were obtained from him by fraudulent representations as to their characterand by false reading, and has failed to prove the case made by his bill, cannot obtain relief on such a bill by claiming that the securities are fraudulent because of the relation of attorney and client existing between him and the defendant. Such a ■ claim is inconsistent with the case made by the bill.</p>

<p>Where a husband joined with his wife in a conveyance of her separate estate by deed, with covenants by the husband, for himself and his wife, of seizin, quiet enjoyment, warranty, and against encumbrances, and the purchaser gave a mortgage to the husband to secure a part of the purchase money on a bill filed by the administrator of the wife, who survived her husband, to foreclose the mortgage, it was held—</p> <p>That it is no defence to a recovery of the amount of the mortgage that adverse claims have been set up to a portion of the land included in the deed to the defendant, when the defendant has never been evicted from any part of the land, and it is not alleged that any action is pending for the recovery of any part of it.</p> <p>Nor can the mortgagor set up as a defence to the wife’s claim on the mortgage, that after the adverse claims were made, it was agreed by the husband and wife that they would buy in the adverse claims, and transfer them to the defendant, and that the balance of the purchase money should not bo paid until the title was perfected, and if any portion of the title could not be perfected, an allowance should he made to the defendant therefor.</p> <p>If such a contract was made it could not bind the wife. Damages cannot be recovered on a contract made by a married woman.</p> <p>Nor would such a claim avail against the husband as a defence to a recovery upon the mortgage. Damages for the breach of a subsequently made contract cannot be set off against the amount due upon a mortgage.</p>

<p>The Chancellor’s opinion contains a sufficient statement of the material facts.</p>

<p>Where, in obedience to the judgment of the Court of Appeals, commissioners had been appointed by this court in a partition case, to make partition of the real estate whereof partition is sought by the complainant’s bill among the owners according to their respective rights ; and in case the commissioners should be of opinion that such partition could not be made without prejudice to the owners, then they were directed to partition and set off to D. S. M., one of the defendants, the one twentieth part thereof in value ; or if they should be of opinion that no such partition could be made to M. without prejudice, they should so report to this court for further directions. The commissioners, having reported that such partition could not be made in either way directed by the order without prejudice, on exceptions filed by the defendant, M., to the report of the commissioners, it was held—</p> <p>That the practice which prevails in the English Court of Chancery, to file exceptions to the report of commissioners in partition cases, applies only to the final report of the commissioners on making partition, and has no application to the report made under the practice in this state, that partition cannot be made without prejudice to the interests of the owners and proprietors.</p> <p>There is nothing in the general practice of the court rendering exceptions necessary. In strictness, exceptions in Chancery are limited to answers and to reports of master's.</p> <p>There is no necessity for filing exceptions to the report of the commissioners, and no propriety in such a course. The proper practice for the complainant, the report being filed, is to apply for a decree for sale. Notice of this application will be given, and the party feeling aggrieved by the report may present his objections in opposition to the decree for sale.</p> <p>The exceptions in this case were treated as written objections to the report of the commissioners, and the case was heard as on a motion for a decree for sale.</p> <p>"Where a partition has been actually made hy commissioners, the court, by its well settled practice, interferes with their action with great reluctance. It is only when a clear mistake has been made that their proceedings will be interfered with.</p> <p>The reason of such a course is applicable to the report in this case. No mere formal objections to the report of the commissioners can prevail.</p> <p>Partition is a matter of right; and by the ancient practice, both at law and in equity, the partition was made, however prejudicial it might be to the interests of the parties.</p> <p>It was to remedy this evil that the statute of 1810 authorized a sale of the land when the commissioners reported that, a partition could not be-made without great prejudice ; and by the act of 1846, the same power was conferred upon this court upon bills filed for partition.</p> <p>Under the statute, where a partition cannot be made without prejudice, the complainant is entitled, as of course, to have a sale made of the! premises.</p> <p>The suggestion, that the property is of so great value that no one individual can buy it, if true, constitutes no objection to a sale.</p> <p>Nor can one of the tenants object to a sale on the ground that lie is not capable alone of purchasing the entire premises, and therefore his interest may be sacrificed by a combination among his associates.</p>

Conrad Honnass, by his petition duly verified, asks an order for leave to prosecute the bond of the administrator of Aaron Y. Parks, deceased.

<p>An administrator will be charged with the loss of a debt due the estate, although the debtor turn out insolvent, when the debt is put on the inventory as good, and the administrator, in his first settlement, eighteen months after the death of the intestate, charges himself with it, and suffers three years to elapse without attempting to collect it, although during a part of the time the debtor was engaged in business, and appeared to be possessed of some property.</p> <p>Unless property to the amount of two hundred dollars is actually appropriated, according to the provisions of the statute, for the widow and family of a deceased debtor, that sum cannot be retained by the administrator on a settlement of his account.</p> <p>The administrator having, in his inventory and first settlement of accounts, treated as a part of the estate of the intestate a sum of money which he knew was in the hands of his intestate as a commissioner for the sale of property, will not he permitted, when the estate proves insolvent, to treat such moneys as a separate trust fund, and to give a preference to the same over other debts.</p> <p>The court is prompt to protect an administrator or trustee against loss resulting from an honest mistake, but will not relieve him from loss resulting from measures adopted solely with a view to his own interest.</p> <p>No appeal lies from a statement or restatement of accounts by the surrogate, but only from a decree of the court.</p> <p>An allowance in the bill of costs in the Orphans Court of “ §30 court fees ” is erroneous, and must be disallowed.</p>

This appeal was heard by the Ordinary and Chief Justice Whelpley, the latter having been called to the assistance of the Ordinary to sit and advise with him on the hearing of the case. The opinion of the court was delivered by the Ordinary.

<p>The practice of filing with the surrogate general inventories of the estates of deceased persons instead of those which are specific in their details strongly disapproved. The fact that the executor or administrator retains in his own custody a more specific inventory does not answer the design of the law. The parties interested are entitled to the information as well as the executor. Justice requires that in all cases the requirements of the statute should be strictly complied with.</p> <p>Where a testator by his will gives to his wife one-third of all the income of his estate, real and personal, and at the time of testator’s death one of his farms had been leased to liis son, who was also his executor, for eight years, by the terms of which lease he was to pay to testator two-fifths of all the productions of the soil that he might raise from the place annually by way of rent, it was held that the executor, in accounting with the estate for the rent of tlie farm leased to him, could not, by the terms of the will, be allowed for having paid the widow for her interest under the will one-tliird of the grbss products of the farm, but only for one-third of the two-fifths which he was to render to the estate by way of rent. The income of the owner of leased lands cannot exceed the amount of rent he receives from them irrespective of their gross annual value.</p> <p>When, however, it satisfactorily appears that the executor had actually paid the widow one-third of the whole proceeds of the farm with the express assent of the other legatees, in pursuance of an equitable arrangement by which controversies about the estate were settled and litigation avoided, it is clear that the legatee by whose consent such arrangement was made cáiinot, on exceptions to the account of the executors, object to his being allowed for such payment.</p> <p>A book account of the executor against the testator was properly rejected when the bulk of it was barred by the statute of limitations in the lifetime of the testator, and every presumption is against the justice of any part of the claim.</p> <p>A claim on the part of the executor for money paid in testator’s lifetime on a note of testator held by one L. is not sustained by proof that the money was paid by the executor, who ivas the son of testator. In the absence of any legal evidence to show that the money was actually advanced by the son, the presumption is, under the circumstances of this case, that he made the payment as the agent of the father and with the funds of his principal.</p> <p>The evidence of the executor is not competent to prove that he advanced the money, and that it is still unpaid.</p> <p>The amount paid by the executor upon a judgment against the estate should have been allowed him in his account where there is no dispute that the money was actually paid and there was no proof of any fraud in the entry of the judgment, although the judgment was founded upon an account which upon its face was barred by the statute of limitations.</p> <p>The executor was not bound to plead the statute of limitations, nor is he liable for the money recovered if the demand was in other respects well founded. The judgment must bo regarded as at least prima facie evidence that the claim was well founded, and must be presumed to be correct until the contrary appears.</p> <p>The allowance of $60 beyond the amount of legal fees to the judges of the Orphans Court, and of $200 to the counsel of each party, must be struck out of the costs. The extra allowance to the court has been repeatedly held to be illegal, and under the circumstances of this case there is no ground for the allowance of counsel fees out of the estate to either party.</p>

<p>After an administrator had settled his final account in the Orphans Court, showing a considerable balance in his hands, and after the court had made a decree of distribution directing said balance to be distributed among the next of kin of the intestate, a suit was brought and a judgment recovered, in the name of the Ordinary, against the administrator and his sureties on the administration bond. On an application to the Ordinary to have the amount duo one of the next of kin satisfied out of the judgment on the administration bond, it was held — •</p> <p>That the surety on the administration bond could not successfully resist such an application by proving that a part of the assets which made up the balance found to be in the hands of the administrator consisted of a debt due from the administrator to the intestate, which had never been realized to the estate because of the continued insolvency of the administrator.</p> <p>That by the express provisions of the statute, as well as by the well settled rules of law, the decree of the Orphans Court on the final settlement of the administrator is final and conclusive, and cannot collaterally be drawn in question.</p> <p>This court is not the proper tribunal for the surety to obtain such relief. The proper course for the surety in such a case is to make application to the court in which the decree was made or to proceed by bill in Chancery</p> <p>As against the surety, if in case of clear insolvency the administrator should charge himself with a debt of his own, or of a third person who was insolvent, by design or by mistake, and the decree should be made accordingly, it would operate as a fraud upon the surety, and would be relieved against in Chancery.</p> <p>The petitioners are entitled to have assessed and raised upon the judgment the full amount of their distributive shares according to the decree of the Orphans Court.</p>

This cause came before the Ordinary on an appeal from the decree of the Orphans Court of Middlesex county admitting to probate the will of Thomas Baird, and deciding that each party pay their own costs in the Orphans Court. The appeal was taken from the whole decree, but the argument was confined to the correctness of the decision of the Orphans Court on the question of costs.

<p>The -mother, and after the mother, the next of kin of an infant are entitled to be appointed guardian of a minor under fourteen years; and such ■ claim cannot be disregarded unless for some satisfactory reason apparent to the court.</p> <p>The right of the mother must be held in subordination to, and exercised in consistency with the rights, the moral training, and the highest welfare of the child. The law gives no countenance to the idea that the moral , - and mental culture, the proper education and discipline of the child are > to. be held in subordination to the legal rights of the parent.</p> <p>As between relations having no legal claim to the services of the infant, a greater latitude of discretion is allowed to the court, and a reason which might not be sufficient to bar the legal rights of the mothér might suffice to decide the question between the claims of the other relations.</p> <p>The circumstance that the mother relinquished or agreed to relinquish the charge of the child to its paternal grandparent, is entitled to no consideration in support of the claim of such grandparent to be appointed its guardian. A parent cannot by contract thus alienate the right to the control or guardianship of his children.</p> <p>Nor did it constitute any good ground for giving preference to a paternal relation in the appointment of a guardian that all the estate of the infant came from the grandfather.</p> <p>It was not error in the Orphans Court, that before making the decree appointing a guardian for the infant, the judges had a conversation with the infant on the subject, although the court, in making the appointment, must be controlled by other considerations than the wishes of the ' infant.</p>