Volume 5 — Delaware Chancery

Bill for an injunction.—The bill was filed by the grantors in a deed of trust, dated February 22, 1873, and sought to enjoin the trustees named in the deed from proceeding further in the execution of the trusts thereunder, and to avoid! the deed. The questions presented and the facts connected therewith are stated in the opinion.

Bill to avoid a bond and to restrain the collection •of a judgment entered thereon.—The bill states that the complainants on the 6th of April, 1870, executed a bond with warrant of attorney for the confession of judgment for the payment of $2,000 to William W. 0. Brooks, one of the defendants, believing, at the time they signed said bond, that the same was also signed by the said William W. C. Brooks as an obligor, and that William Silver was the obligee therein.

Bill to compel the reconveyance oe land.—The bill of complaint in this case is filed to compel the reconveyance by the defendant to complainant of a certain tract of land situate in Mill Creek Hundred, Hew Castle County, containing about 30 acres, which the .complainant had theretofore conveyed to the defendant upon certain trusts mentioned in the bill of complaint.

Bill to establish the bights of cbeditobs of an INSOLVENT FIBM IN THE FUND PBODUCED BY A GENEBAL assignment.—Isaac P. Cornog and John Walker Shortlidge, composing the firm of Cornog, Shortlidge, & Co., conducted business as merchants in the city of Wilmington, in this State, from early in the year 1869 until some time in the month of September, 1870, when the copartnership between them was dissolved.

Bill to establish a resultin' - trust, and eor an account.—The case as presented by ti e pleadings, and the facts-disclosed by the evidence, are suffice ntly stated in the opinion..

Bill for the construction and enforcement of a will. —Amy Doughten, then of White Clay Creek Hundred, in New Castle County, in and by her last will and testament, dated the 2d day of November, 1846, among other things, bequeathed as follows: “ Item 7.

Cbbditobs’ bill.—On the 11th day of April, 1865, Herman Van KapfE, trustee, and Elizabeth Smith, conveyed to Hichard J. Lockwood, trustee of Araminta Jones, wife of Charles B. Jones, for and in consideration of the sum of $6,000, a lot of ground, house, and premises situate in the' city of Baltimore. 'The sum. of $4,500, part of the purchase money as stated by the deed, was paid by said Lockwood, trustee for Mrs. Jones, out of her separate property and estate, and the…

Bill bob an injunction and to subject two paecels OB LAND TO JUDGMENT LIENS IN A CEETAIN OBDEB.-The facts and questions presented are fully stated in the opinion.

Bill fob speoifio pebfobmaítce.—On the 13th day of March, 1876, James McFarland filed in this court his bill of ■complaint against Benjamin A. Reeve, Peter L. Bonwill, Philemon C. Carter, and William T. Bradley, praying a decree for specific performance of a contract in writing, .alleged to have been entered into by Benjamin A. Reeve with the complainant, for the sale of a house and .lot in Felton.

Petition bob pabtition.—Israel D. Jones, in his last will and testament, probated December 24, 1834, devised as follows : “I do give and bequeath to my sister Elizabeth Jones and sister Sarah J. Webb all my real and personal estate whatsoever, share and share equal alike; but in case of death of either of them it is to go to their children.” The testator at the date of his will and at the time of his death was seised of an estate in fee simple of the lands mentioned in the…

Claim of doweb, in pabtition pbooeedingl—The claim of dower in this case by Margaret Bush, widow of George Bush, arises under that portion of the will of Samuel Bush, deceased, which is as follows : “ Item.

Bill fob an injunction to bestbain the enfoboement •of A judgment at law.—On the 1st day of January, 1866, Earnest H. Troth and Richard Campion became partners with one Frank H. Haworth, as Troth, Haworth, & Campion, in the wholesale notion business in Philadelphia, under an agreement that each should contribute $2,000.

Bill eor the construction oe a will.-—William Gooch,, in his last will and testament, devised as follows: Item 1. It is my desire and wish that my executor, hereinafter named, shall pay all my just debts and funeral expenses as soon after my decease as possible. Item 2. I devise, give, and bequeath to my beloved wife, Tamar, all my personal property, and $3,500 in cash out of' my real estate, as soon as sold by my executor. Item 3.

Bill to bestbain the enfobcembnt of a judgment on a usubious debt.—It appears that on the 19th day of March, 1866, George W. Ennis negotiated with John Ginn for the loan of $200. Ginn took, as the evidence and security for ■said loan, a bond bearing date the same day, in the penal sum ■of $400, conditioned for the payment of $200 on or before the 19th day of December thereafter, with interest from date.

Bill to restrain the enforcement of a judgment ENTERED ON THE OFFICIAL BOND OF A CITY TREASURER OF Wilmington.—Joseph L. Kilgore was, at the city election held on the first Tuesday of Hovember, 1870, elected city treasurer of the city of Wilmington for the term of one year: viz., from the 1st day of January, 1871, to and including the 31st day of December of same year. On the first Tuesday of September, 1871, he was elected city treasurer for the term of two years.

Bill to restrain the collection of judgments and the prosecution of a suit at law.—The facts are fully stated in the opinion.

<p>Bill to eneoboe a lien tjpon land, in favob of a wabd.—The facts are fully stated in the opinion.</p>

Bill to foreclose a mortgage.—On the 12th day of November, 1867, Bolitha L. Wharton and wife executed a mortgage of three several tracts, pieces, and parcels of land to secure the payment of the sum of $9,000, with lawful interest for the same, from and after the 1st day of January next after the date of said mortgage, in the manner and at the times mentioned and stipulated in a certain writing obligatory recited in said mortgage.

Bill to restrain the enforcement of a judgment at law; and cross-bill.—The case is sufficiently set forth in the opinion.

Bill to have a judgment bond declared fraudulent AND VOID, AND TO REACH THE PROCEEDS OF AN EXECUTION LEVY thereon.—Malvina Downey, one of the defendants, being indebted to the complainant, executed a judgment bond in the penal sum of $672, dated August 18,1876, conditioned for the payment to him of $336, with interest from June 10,1876, payable on demand, with costs; on which judgment was recovered in the Superior Court in and for New Castle County, •and on which a fieri…

Bill, undeb the statute, to obtain possession of unADMINISTEBED ASSETS OF A DECEDENT’S ESTATE.-The bill WfiS brought by the administrator de bonis non cum testamento annexa of Henry L. Peckard,… Held: used, and considered as part of the assets of the estate of the said Peckard in their hands.

<p>Bill for subrogation.—The facts and questions presented are fully stated in the opinion.</p>

Bill to set aside the award of an arbitrator under, a railroad-construction contract.—-The facts and questions presented sufficiently appear from the opinion.

Bill to restrain the collection of an . assessment-for the construction of a culvert.—-The reasons why the complainants ask the intervention of this court by means of injunction may be stated as briefly as possible, consistent with a clear apprehension of the merits of the case, as follows Some of the plaintiffs are heirs at law of John Montgomery, who died intestate seised of certain lands in the city of Wilmington ; others of the plaintiffs have .succeeded to the rights of…

Bill to set aside a sale of personal property by a judgment debtor, and to subject the property to payment of judgment.—The facts and questions presented are fully stated in the opinion.

Bill to restrain proceedings upon a judgment under, the Mechanics’ Lien Law. — The complainants’ bill, filed February 21, 1876, sets forth, among other things, that the Agricultural Society of Hew Castle County, a corporation of this State, being seised in fee simple of a tract of land known as the “ agricultural fair grounds,” situated in Christiana.

<p> Bequests of personal property; interest of legatee for life, with limitation over; failure of contingency. </p> <p>Where a bequest of personal property for life is limited over upon a contingency, the interest of the first taker will, on failure of the contingency, become absolute.</p>

Information by the Attorney General to set aside a DEED MADE BY A PERSON OF UNSOUND MIND. On motion to dismiss the information.

Bill to set aside a deed.—This is a continuation, for final hearing, after necessary amendments for that purpose, of the preceding case, brought by information in the name-of John B. Penington, Attorney General, on behalf of John Thompson, an insane person, at and by the relation of Charles-Jones et al., against William H. Thompson and Jane M.. Thompson.

Bill to restrain the prosecution of a writ of scire FACIAS TO ENFORCE A PURCHASE MONEY MORTGAGE, ON MOTION TO DISSOLVE PRELIMINARY INJUNCTION AND TO DISMISS the bill.—The grounds upon which the complainant asks, for an injunction may be briefly stated, as follows: that he became the purchaser of a tract of land described in the bill, at a sale thereof made by the Sheriff of Kent County on February 13, 1876; that said land was so sold by said sheriff under and by virtue of a…

Bill to redeem land from the lien of a mortgage AND TO HAVE AN ASSIGNMENT OF DOWER THEREIN.-The bill was filed February 15,1879. The following are the material facts upon which the jirayer is founded: 1. The marriage of the complainant and Charles F. Grant, Movember 1,1847. 2. A deed of J. Zebley and wife to Grant, of the premises, March 27, 1847. 3. Mortgage of Grant and wife of the same to Sabilla A. Stone.. 4.

<p>Rule to show cause why an injunction should nót issue.—The questions passed upon are fully stated in the opinion.</p>

Bill to compel a bailiff to account for the value of PROPERTY DISTRAINED FOR RENT, BUT NOT SOLD. On demMTrer to bill.—The case presented is sufficiently set forth in the opinion.

<p>Bill to enjoin the erection of a wharf.—The facts and questions presented are fully stated in the opinion.</p>

<p>Bill foe specific performance.—The facts and questions presented are fully stated in the opinion.</p>

Bill eoe an injunction, etc.—One John Owens, late of Sussex County, made his last will and testament on the 7th day of January, 1842, and afterwards died on or about the 14th day of May, 1847. The will was duly admitted to probate before the register of wills on the 15th day of June, 1847, and letters testamentary on the estate of the said Owens were, on the said last-mentioned day, granted to Mary Owens, appointed executrix of said will.

Bill to restrain the prosecution oe an action at law. —It appears by the bill in this cause that one Emanuel J. Stout had heretofore recovered a judgment, being 173 as of the April Term, 1866, of the Superior Court of the State of. Delaware in. and for Kent County, the real debt whereof was $1,230, with interest from September 26, 1866, and $3.77 costs, against William A. Atkinson and Henry Todd—the interest on which judgment had been paid up in full to September 26, 1873.

Information to enjoin the .erection of a building so as to project over a city street.—The information is in the name of the Attorney-General, on the relation of Charles F. Thomas et al., residents of the City of Wilmington, on behalf of themselves and the rest of the inhabitants of said city, setting forth that the respondent, Baynard, is engaged in-erecting on his lot on the southwest corner of Fifth and Market Streets in said city, a large brick building fronting on both…

Bill for an accounting and for the payment of the PRINCIPAL AND INTEREST OF A TESTAMENTARY TRUST FUND.Nathaniel Snielson, late of New Castle County, in and by his last will, bearing date the first day of September, 1853, devised and bequeathed as follows : “ It is my will and desire that my executors, or the survivor of them, or the executors or administrators of such survivor, will pay semi-annually to Elizabeth C. Cornish, single or married, in her own right, all the…

<p>Bill for the annulment of a trust deed.-—The bill of complaint is founded upon the following statement of' facts:</p> <p>On the 21st day of June, 1877, the complainant, by deed, conveyed to the defendant, his maternal uncle and his heirs, all his lands which descended upon him as heir of his mother, and which were of the value of at least $25,000.</p> <p>The deed was in trust, expressed therein as follows: “ In trust, nevertheless, and for the uses following, that is to say: to pay over to the said James C. Kerr the clear income, rents and profits of the said real estate, lands, and tenements hereby conveyed during his natural life, and after his death to convey the said real estate, lands, and tenements to the heirs at law of the said James C. Kerr, free and discharged from the trust hereby created ; and upon the further trust, and the said Samuel M. Couper, trustee, his heirs and assigns, is hereby expressly empowered thereto, to sell and convey, free and discharged from this trust, the whole or any part of the real estate, lands and tenements hereby conveyed, where, in his discretion, such sale shall be for the best interest of the trust estate, and to invest and keep invested the proceeds of such sale in other real estate or in good bonds and mortgages, upon and for the same uses and trusts as the real estate so sold was-held.”</p> <p>The deed of conveyance was wholly and purely voluntary. No money or other thing of value passed into the complainant’s hands from the defendant, or any other person, as the consideration for the lands and tenements' conveyed.</p> <p>The complainant alleges in his bill that the deed was executed under circumstances which he states in paragraphs 4, 5 and 7 of his bill, which paragraphs are as follows:</p> <p>“ 4. Your orator further avers and shows to Your Honor that the said deed was executed by him under the following circumstances : The mother of your orator died suddenly and unexpectedly at New Castle, the news whereof was sent by telegram to your orator in the City of New York, where he then resided. Her funeral occurred, according to the best of the remembrance and belief of your orator, on the 18th day of June, 1877, three days before the execution of the said deed. On the day succeeding the burial of his mother, your orator was informed that she had died intestate, whereby her real estate, being the one undivided fourth part of the lands and tenements hereinbefore mentioned, descended upon your orator as her only heir at law. Your orator was then about the age of twenty-four years, inexperienced and ignorant of business, and wholly unfit, without judicious advice and instruction, to undertake an act so important as the final disposition and disposal of his property, even if his mind had not been agitated and his judgment disturbed by the affliction which had been só recently visited upon him.</p> <p>“ 5. Your orator further shows to Your Honor that soon after the funeral of his mother, and, as your orator believes, on the day next after, he was approached by some of his relatives, but by whom so first spoken to, your orator does not remember and cannot distinctly set forth, and informed that in the event that your orator assumed control and management by himself of the estate to which he had thus become entitled, it would be injurious to the interest of your orator and the others who were equally concerned in the property ; to which your orator replied that it was not his desire to do anything against the interest of anyone or to disturb the existing state of the property as held in common; and that your orator had' entire confidence in his uncle Samuel, who had taken care of the interest of his mother; whereupon, George Gray, Esq., was then sent for, and was told by some one of the family, and, as your orator believes, by Alexander Proudfit, in the presence of your orator and others of his relatives, that it was not desired by your orator to assume control of his property, and that his uncle Samuel would act as his trustee.”</p> <p>“ 7. Tour orator avers that he never saw the said deed until it was brought to him for execution ; that he had no benefit of advice or instruction from any person concerning its nature or effect, nor any knowledge or opportunity of consideration of its contents, other than consisted in the reading it by Hr. Gray, the solicitor of his uncle, sent for by him to prepare it; and your orator avers and declares that he signed it in ignorance of the effect of its provisions, and especially in so far as it consisted in conveying an absolute and irrevocable trust, estate, completely taking his property out of the control of your orator and subjecting it to the dominion and disposal of others, without possibility of interference on the part of your orator. That the provisions of the said conveyance and of the trusts thereby created were and are unwise and imprudent, and such as your orator would not have executed or authorized had he been apprised of and understood the act which he was induced to perform; and your orator again avers that he was neither properly advised nor cautioned, but was influenced to execute the deed by the request of those whose views he adopted, to whose suggestions he yielded assent,, toward whom he was naturally disposed to look for guidance, and to whose wishes—especially in the hour of his bereavement—he desired to conform.”</p> <p>“ Tour orator here expressly disclaims to Your Honor any imputation of improper motive on the part of his relatives, in deference to whose wishes he acted, either of fraud or intentional unfairness ; but, on the contrary, explicitly avers that in his belief they were animated by good motives; but, while thus disclaiming the existence of any improper design on their part, he, nevertheless, insists that a' conveyance executed under such circumstances of ignorance, inexperience, excitement and mistake, without the benefit of independent advice or suggestion," and taking away from your orator all control over his property, ought not to stand. And your orator, among other defects and improprieties,- shows to Tour Honor that by its provisions he has no voice in the investments which the trustee is authorized to make; that 'he has no control over the appointment of new trustees; that it gives him no power of appointment among children or others to whom, under the designation of heirs, the estate is finally limited, discharged of the trust; that he has no power of disposition by will; that he has no authority to make any provision for his wife; that he has no voice in any matters of sale, either as to the purchase or the quality of land so sold, or the amount of purchase money; and that it contains no power of revocation.- And your orator again expressly avers that it never was his intention or purpose to convey his lands in such wise as that they should be placed beyond his power and control; but that, on the contrary, he understood the transaction to be a merely temporary and family arrangement, rendered desirable by the existing tenancy in common, and made for the purpose of keeping the .estate together under the charge of his uncle Samuel, as his trustee and agent for its management, and enabling him to act according to exigencies for the advantage of your orator, as one of the cotenants ; and your orator explicitly avers that, at the time of his execution of the deed aforesaid, he honestly and verily believed that he had the right and power at any time to revoke it and to annul the trust and authority given thereby, and that if he had been properly instructed and had understood its operation and effect, he never would have executed it.”</p> <p>The defendant, in his answer, admits the statements of the complainant as to the circumstances under which he executed the deed as contained in paragraphs 4, 5 and 7 of the bill; and says that “ In advising the execution of the said deed, and in accepting the onerous trusts therein created, he was actuated solely by motives of goodwill toward the said complainant, and especially by the desire to preserve the estate of the said complainant from the vicissitudes of fortune to which the then business of said complainant exposed it; and he submits himself in all things to the judgment of this court.</p>

<p>Cbeditobs’ bill.—The facts and the questions presented are fully stated in the opinion.</p>

Bill to restrain the entry upon, and occupation of, land by a raileoad company. On application for a preliminary injunction.—The questions presented are fully set forth in the opinion.

Bill by sureties to shake in indemnity taken by theik cosureties.—Joseph A. Kollock, late of Dagsboro’ Hundred, in Sussex County, died intestate, leaving to survive him, as his heirs at law and legal distributees of his personal estate, seven children, to wit: Robert H. Kollock; Annie Frame, wife of Henry C. Frame ; Elizabeth B. Kollock; William S. Kollock; Mary C. Carey, wife of John F. Carey; Joseph'A. Kollock; and Henry G. M. Kollock.

Bill for specific performance.—Polly Vessels, the-mother of the complainant, and of the defendant also, by a second marriage, died in 1833 intestate, leaving to survive her as her heirs at law six children, to wit: Benjamin Burton, John II. Burton, David Burton, Peter R. Burton, the complainant, and Myers B. Vessels, the respondent..

New Castle, Bill fob specific performance, etc.—The complainant .states in his bill that he is a priest in the Protestant Episcopal Church, canonically resident in the diocese of Delaware; that there exists in said diocese a fund called the Disabled Clergy Eund, whereof George D. Armstrong is treasurer, and that the said fund is held in trust by said Armstrong for the relief of disabled clergymen of the Protestant Episcopal Church ; that the Bight Bev.

Bill to enjoin the erection op a building. ■— It appears that .one Daniel Hulley, in his lifetime, about the 22d day of September, 1849, became seised in fee of certain lands and premises described in the bill of complaint in this cause, situate at the corner of Shipley and Sixth Streets, in the City of Wilmington, and that he erected thereon, about the year 1850 or 1852, a three-story, brick building; that between said building and the premises adjoining, on which there was…

Bill for an injunction to restrain an execution sale of land.'—The bill was filed by the Citizens ISTational Bank of Middletown, Delaware, a corporation of the United States, against the Trustees of the Middletown Academy, a corporation of the State of Delaware, and Thomas Ford, Sheriff of Eew Castle County, and Lydia Smith and John Diehl, executors of George H. Smith, deceased, Samuel Lindsay, Angeline C. Johnson, formerly Angeline C. Yandegrift, and Zadoc Poole.

Bill fob ah ihjuhotioh.—-The complainant is a corporation existing under the Laws of the States of Pennsylvanai,. Delaware, and Maryland, and the bill is filed agaidst Patrick Neary, Collector of County Taxes for the Northern or Second Collection District of Wilmington Hundred, New Castle County, to restrain' the collection of certain taxes. The facts-are stated in the opinion.