UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY Faculty library 4 f T O r REPORTS OF FASES DECIDED IN THE HIGH COURT OF CHANCERY OF MARYLAND. HON. JOHN JOHNSON, CHANCELLOR. VOL. I. CONTAINING CASES FROM THE YEAR 1847 to 1850. BALTIMORE: PUBLISHED BY JOHN W. WOODS. 1851. \\ ENTERED, according to the act of Congress, in the year one thousand eight hundred and fifty- one, by JOHN W. WOODS, in the Clerk's Office of the District Court of Maryland. PREFACE. THE importance to the legal profession of the ~ysf State, of the Decisions in the High Court of Chan- cery, made by the present able and distinguished Chancellor, has induced the undertaking of this work. The design is, to publish, in consecutive volumes, all the more important cases decided since the 21st of December, 1846, (the date of the appointment of the present Chancellor,) until the time, when, by virtue of the provisions of the New Constitution, this Court shall cease to exercise its functions. The cases embraced in the present volume, were originally reported for, and printed in, "The Mary- land Free Press," a newspaper published at An- napolis. They have been arranged and revised by the Chancellor ; and notes have been carefully pre- pared to each, with a more full and complete index to the volume than has yet been made to any of the Maryland Reports. During its preparation for the press, the work has been submitted to the supervision of the Chan- cellor, by whom the whole has been examined and approved. 6 The high estimation in which the Decisions and Opinions of Chancellor Johnson are held by the entire bar of the state, would, at any time, be an ample recommendation to this work, but at present, when all equity jurisdiction is about to be trans- ferred to new, and, therefore, inexperienced tri- bunals, it is believed that the numerous decisions upon the various points of Chancery Practice and Pleading, contained in this volume, will render it an invaluable book to every lawyer in the state. The "Maryland Law Reporter," is designed to constitute the second and succeeding volumes of Chancellor Johnson's Decisions. THE PUBLISHER. A LI ST OF THE CHANCELLOKS OF THE STATE OF MARYLAND. RICHARD SPRIGG. Appointed by the General Assembly, 3d of April, 1777 ; resigned, March, 1778. JOHN ROGERS. Appointed by the Governor and Council, 20th of March, 1778 ; died, 1789. ROBERT HANSON HARRISON. Appointed 1st of October, 1789 ; de- clined accepting. ALEXANDER CONTEE HANSON. Appointed 3d of October, 1789 ; died, 1806. GABRIEL DUVALL. Appointed 20th of January, 1806 ; declined accept- ing. ROBERT SMITH. Appointed 23d of January, 1806 ; declined accepting. WILLIAM KILTY. Appointed 26th of January, 1806 ; died, 1821. JOHN JOHNSON. Appointed 15th of October, 1821 ; died, 1824. THEODORICK BLAND. Appointed 16th of August, 1824 ; died, 1846. JOHN JOHNSON. Appointed 21st of December, 1846. A TABLE OF CASES REPORTED IN THIS VOLUME. PAGE. Abbot, Horace et al. vs. The Baltimore and Rappahannock Steam Packet Company, 542 Albert, Wm. J. and Emily his wife vs. The Savings Bank of Baltimore etal., 407 Atkinson, Joshua J., permanent trustee of Wm. C. Spindler, vs. James Philip, Sen. et al., 507 Baltzel, Philip, surviving partner of Thomas Baltzel, vs. Ann Trump, exr'x. of Wm. B. Trump, 517 Bank of Westminster vs. Wm. Pinkney Whyte, permanent trustee of George Suter, 536 Barry, Geo. W. et al. vs. Wm. J. Barry et al., 20 Beard, Harriet A. vs. John H. Linthicum et al., 345 Bowie, Catharine vs. John T. Berry, 452 Boyd and Hance vs. Alexander Harris et al. 466 Brooks, Chauncy et al. vs. Henry H. Dent, adm'r. d. b. n. of Henry Brawner et al., 523 Brooks, Chauncy et al. vs. Jno. H. Delaplaine et al., 351 Brown, Henry H. vs. Robt. Stewart etal., Buckingham, Larkin, the Attorney General at the relation of, vs. Ja- nette Dorsey, 31 Carroll, Elizabeth vs. Jno. Stanler, 36 Cecil, Owen vs. Mary Ann Dorsey et al., 223 Chesapeake Bank vs. McLellan and Raborg, 328 Childs, Jno. D. and Wife vs. Lucy M. Smith, 483 Conn, Robt. et al. vs. Jas. Conn et al., 212 Clark, Benj. S. et al. us. Charles G. Ridgely et al., Clark, Pearson et al. vs. Levering et al., 178 Clark and Mankin vs. Elizabeth Abbott and Wm. H. V. Cornise, 474 Grain, Peter W. et al. vs. Barnes and Fergusson, 151 Crouch, Thos. M. et al. vs. Harriet Smith et al., 401 10 Cullison and wife vs. Jno. Bossom et al., 95 Dixon, Charles et al. vs. Henry R. W. Dixon et al., 220 Dixon et al. vs. Dixon et al., 271 Doub, Jno. vs. Abraham Barnes et al., 127 Duvall, Edwin W. and Peter Sausser vs. J. J. Speed and Josias Pen- nington, 229 Duvall, Jno. W. et al. vs. Jno. Coale, 168 Elysville Manufacturing Co. vs. Okisko Co., 392 Franklin, Alex, and Robt. vs. Benj. Franklin, 342 Georges Creek Coal and Iron Co. vs. Christian E. Detmold, 371 Gibbs, Robt. M. etal. vs. Wm. C. Cunningham et al., 44 Gilmor, Robt. vs. Jno. McP. Brien et al., 40 Glenn, Jno., trustee of Childs vs. Wm. Baker and Benj. Childs, 73 Goldsborough, Robt. et al. vs. Martha R. Ringgold et al., 239 Goodburn and wife vs. Stevens et al., 420 Green, Edward, trustee vs. True Putney and Hugh Riddle, 262 Gwyn, Chas. R. and Jno. vs. Josiah Lee et al., 445 Hamilton, Jno. vs. Annapolis and Elk Ridge R. R. Co. et al., * 107 Harness, Wm. et al. vs. Chesapeake and Ohio Canal Co., 248 Harrison, Catharine vs. Wm. McConeskey, 34 Harrison, Saml. vs. Alex'r. B. Harrison et al., 331 Harris, Mackall vs. Lavielle and wife, 466 Hayden, Handel M. vs. David Stewart, Jr., 459 Hays, Elizabeth vs. Charlotte Henry, 337 Hintze, Frederick G. B. vs. Christopher Stingle and wife, 283 Hollis, Frances, by her next friend, vs. Thos. J. Hayes and Amos Hollis, 479 Jones, Saml., Jr. vs. Robert B. Hancock et al., 187 Jones and White vs. Lloyd Brown et al., 191 Keerl, Geo. H. and Henry K. Fulton vs. Robt. Fulton, 532 Kiddall, Eliza M. vs. Wm. Trimble, surviving executor of Jane Jacob, 143 Little, Christopher vs. Jno. R. Price et al., 182 Malcom, Jas., permanent trustee of Henry Keene, vs. Washington Hall, Jr., 172 Mantz, Casper, adm'r. vs. Buchanan et al., 202 McTavish, Jno. and Emily his wife, exr'x of Charles Carroll of Carroll- ton vs. Wm. Carroll, 160 Mitchell, Walter vs. Wm. Holmes et al., 287 Moody, Mary et al. vs. Emily Elliott et al., 290 Mousley, Jno. et al. v*. Edward Wilson et al., 388 11 PAGE. Negro Monica et al. vs. Mitchel et al., 355 Owings, Jas. vs. Wm. Baldwin et al., 120 Pfeltz, Julius Peter vs. Ann Maria Pfeltz et al., 455 Potter, Moses vs. Edward M. Kerr, 275 Pue, Richard R. prochdn ami of Matilda R. H. Pue and Henry Pue, minors, vs. Henry H. Pue et al., 382 Sewall, Robt. vs. Sylvester Costigan et al., 208 Shepherd, Jos. vs. Saml. Shepherd et al., 244 Small, Philip A. et al. vt. Charlotte C. D. Owings et al., 363 Snyder, Hannah, et al. vs. Julia Snyder et al., 295 Spangler, Catharine vs. Jno. Stanler et al., 36 Sullivan Jno. et al. vs. Tuck, ex'r of Bowie, 59 Tayman, Levi L. vs. Jno. Mitchel et al., 496 Thomas, Saml. W. vs. Wood, ex'r. of Harrison, 296 Thompson, Laurence et al. vs. Aug. Diffenderfer et al., 489 Tyson, Isaac, Jr. vs. Thorns. B. Watts, 13 Washington University of Baltimore et al. vs. Edward Green, Waters, Charles A. vs. Charles Howard and wife et al., 112 Waters, Freeborn G. vs. Rebecca Waters et al., 196 West and Courtenay, admrs. of West vs. Nathl. Williams, 358 Wheeler, Thomas T's Estate, 80 White, Elizabeth Ann et al. vs. Jos. White and Jno. C. White, 53 Whyte, Wm. P., permanent trustee of Geo. Suter vs. Jno. Fisher et al.. 536 Williams and Bradford vs. Geo. H. Williams et al., 199 Williams, Amos A. vs. Savage Manufacturing Co., 306 Williams, Edward, estate of, 25 Wilson, Jno. F. vs. Matthew Hardesty, 66 CASES HIGH COURT OF CHANCERY ISAAC TYSON, JR. vs. ^ MARCH TERM, 1847. THOMAS B. WATTS. SPECIFIC PERFORMANCE MUTUALITY UNCERTAINTY. A BILL for the'specific performance of a contract is an application to the sound discretion of the court, which withholds or grants relief according to the cir- cumstances of each particular case, and in the exercise of its extraordinary jurisdiction in such cases, the court, though not exempt from the general rules and principles of equity, acts with more freedom than when exercising its ordinary powers. The contract must be fair, and just, and certain, and founded on an adequate consideration, and if deficient in either of these requisites, its performance will not be decreed ; hence the plaintiff who seeks the enforcement must make out a stronger case than is required of him who resists the decree. The contract must also possess the essential ingredient of mutuality, and in cases of inequality of obligation, it is better to leave the plaintiff to his rem- edy at law for damages ; for if equity acts at all, it must act ex vig&re, and carry the contract into execution with unmitigated severity. The manifest object of the defendant in this case, (and which he believed was secured by the contract,) was to have the minerals on his farm worked as well as explored, and by the contract he gave full power to P., the assignor of the plaintiff, to make explorations and to work the mines, but the only en- gagement on the part of P. being limited to explorations, and he not being bound to work the~mines, the contract was held deficient in reciprocity of obligation, and its specific execution refused. 2 14 HIGH COURT OF CHANCERY. [The object of the bill filed in this case was to procure the specific performance of an agreement entered into on the 8th July, 1844, between the defendant, Thomas B. Watts, of Bal- timore county, and Thomas Petherick, an unnaturalized for- eigner, then residing in Philadelphia. By the terms of the agreement Watts was to permit Petherick to explore and work certain copper mines, on what he represented to be his farm, reserving to himself a certain portion of the profits ; and Peth- erick was, before a certain day, to "commence proper opera- tions for ascertaining by explorations the mineral prospects on the said farm." On the 22d December, 1844, Petherick dis- posed of his interest under the agreement to the complainant Isaac Tyson, Jr., who afterwards filed this bill for the specific performance thereof; alleging, that Petherick at the time the agreement was executed, thought Watts was possessed of an unincumbered fee simple interest in said property, but that he afterwards found that he only had the reversion after the termi- nation of the life estate of his mother, and that this reversionary interest was in mortgage ; that Petherick, though disappointed at this information, still expected such title as Watts was able to give, and had afterwards conveyed his interest to the com- plainant, who with the same expectation, and in good faith, purchased the same, and demanded of Watts the privilege of mining to the extent of said Watts' interest in the property which had been refused. The defences taken by the defendant were laches on the part of Petherick in not complying with the terms of the agreement by the time specified ; the incompetency of Petherick, an unnaturalized foreigner, to receive, or transfer a title to the land, or the mining privilege aforesaid ; the sur- render to the defendant of his rights under the contract, previ- ous to the assignment to the complainant ; and the want of mutuality in the agreement. The case having been argued, the Chancellor delivered his opinion as follows :] TYSON VS. WATTS. 15 THE CHANCELLOR: This, as has been remarked, is a bill for the specific perform- ance of an agreement, and is, therefore, an application to the sound discretion of the court, which withholds or grants relief according to the circumstances of each particular case, as it presents itself. The discretion it is true, is not arbitrary and capricious, but sound and reasonable ; adapting itself to, and being governed as far as practicable by general rules and prin- ciples, when those rules and principles are not in conflict with the justice of the case between the parties. There would seem to be no doubt, that when a court of chancery is called upon to exert its extraordinary jurisdiction in compelling the specific performance of contracts, though it is not entirely exempt from those general principles of equity which have been found by experience best and most surely to advance the aims and ends of justice, there is nevertheless more freedom in its action than when exercising its ordinary powers. St. John vs. Benedict, 6 Johns., Ch. R. 111. Seymour vs. Delancy, ib. 223. Geiger et ftl. vs. Green, decided by the Court of Appeals at December terra, 1846. "Unless the court is satisfied," says Chancellor Kent, "that the contract is fair and just, and equal in all its parts, and founded on an adequate consideration, it will not, by the interposition of its extraordinary power, order it to be executed ;" and this seems to be the established doctrine upon the subject. If an agreement is deficient in either fairness, justice, or certainty, its specific execution will not be decreed ; and hence a stronger case is required on the part of the plaintiff, asking a decree for the specific performance of a contract, than is requir- ed of him who resist such decree. 2 Tory's Eq., sec. 769, 770. And in addition to the elements of fairness, justice, and cer- tainty, the agreement must be mutual before the power of the court to order its specific performance can be successfully in- voked; and indeed it may be well doubted, whether a contract can be considered in any respect fair and just if it be not mu- tual. "I have no conception," says Lord Redesdale in 1 Sch. if Lf. 18, "that a court of equity will decree a specific per- 16 HIGH COURT OF CHANCERY. forraance, except where both parties had a right by the agree- ment to compel a specific performance, according to the ad- vantage which they might be supposed to have derived from it." The Court of Appeals, in the case referred to, of Geiger et al vs. Green, say, that "it is established that unless there is to be found in the contract, the essential ingredient of mutuality, a court of equity will not compel its specific execution." And in that case the bill was dismissed, because of the absence of that indispensable ingredient. The contract upon which the bill in this case is filed, and the specific performance of which it seeks to enforce, contem- plated not only the exploration, but the working of the mines of copper and other minerals on the farm of the defendant. It recites the desire of the defendant to have them explored and worked, and the willingness of the said Thomas Petherick to undertake such explorations and working, and then in con- sideration of one dollar paid to the defendant by Petherick, the former agreed to give to the latter, his heirs and assigns, "full power to make explorations and works on the said farm, as he, the said Petherick, might think proper for such purpose," &c., and after a reservation to the defendant of a seignorage of one full fifteenth part of the minerals, Petherick for himself, his heirs and assigns, stipulated that he would on or before the tenth day of July then next, "commence proper operations for ascertain- ing, by explorations, the mineral prospects on the said farm." Although therefore it was the manifest design and object of the said defendant, to have the minerals upon his farm worked, as well as explored, and although for a small pecuniary con- sideration he gave Petherick full power to make such explora- tions and works, the only stipulation on the part of Petherick is, by a certain period "to commence operations for ascertain- ing, by explorations, the mineral prospects on the said farm." The engagement, therefore, on the part of Petherick was limit- ed to the explorations, and he was not bound, according to any interpretation of the contract, to work the mines. Whilst there- fore the contract gives to him the power to work the mines, as he might think proper, the only corresponding obligation on his TYSON VS. WATTS. 17 part was to explore for the purpose of ascertaining the mineral wealth of the farm. There can be no doubt, I think, that the defendant never would have entered into this contract if he had believed that the working of the mines was not secured by it, and that whether they should be worked or not depended upon the discretion of the party with whom he was contracting. The contract, therefore, it seems to me, is deficient in that recip- rocity of obligation, without which, a court of equity will not de- cree a specific performance. It appears to me difficult to main- tain, that the defendant could have obtained a decree against Petherick for the specific execution of this contract to the ex- tent which he clearly had in view in entering into it that is, to compel Petherick to work as well as to explore the minerals, even though the title of the defendant to the farm had been entirely unincumbered. And if this is the case that is, if there is a want of mutuality in the remedies as well as the rights of the parties to the contract, it would be inequitable, as said by Lord Redesdale in Sch. fy Lef. 18, to decree a specific perform- ance at the suit of him who is not bound ; as if the rule were different, he might enforce or avoid the contract, according as his interest might incline him the one way or the other. It is much better in such cases of inequality of obligation, to refuse a specific performance, and leave the plaintiff to seek his com- pensation, if he has sustained damage, by an action at law ; because if equity acts at all, it must, as Chancellor Kent says, "act ex vigor MARCH-- TERM, 1847. WILLIAM J. BARRY ET AL. ) [WAIVER OF COMMISSIONS PETITION TO VACATE DECREE LAPSE OF TIME.] A TRUSTEE may waive his claim to commissions, where that claim exists. The enrollment of a decree obtained by surprise, may be vacated, either upon a bill or petition. A decree or order, after delay and lapse of time, cannot be set aside, except upon very strong grounds. The order sought to be set aside, was passed on the 18th of November, 1844, and no objection is made until August, 1846. HELD that upon the ground of delay, alone, there would be great difficulty in granting relief against the order, even if the merits were with the petitioner. [On the 24th of April, 1839, a decree passed this court for the sale of the real estate of Robert Barry, deceased, for distri- bution among his heirs at law, and appointing Bernard W. Campbell trustee for that purpose. The trustee being unable to effect an advantageous sale, the property was rented out by him, and on the 8th November, 1844, an order was passed authorizing him to continue to rent the same, and to apply por- tions of the rents to its repair ; and referring the case to the Auditor for an account. On the 18th of the same month a further order was passed, allowing the trustee a commission of eight per cent, upon his collections, and disbursements. Sun- dry accounts were stated by the Auditor, and ratified by the court, crediting the trustee with his commissions, and with certain payments and disbursements made by him, and charg- ing him with the rents which he had received ; and afterwards on the petition of John Glenn, who had become purchaser and assignee of five-sevenths of said property, an order was passed, dated 23rd February, 1846, directing the trustee to sell the same, upon the terms mentioned in the decree. It was accord- ingly sold to said Glenn, at public sale on the 6th May, 1846, for the sum of $12,000, and an order of ratification nisi of the sale was passed on the 28th of the same month. On the 24th BARRY VS. BARRY. 21 of August following, William J. Barry, one of the heirs at law of said Robert Barry, and one of those who had sold his in- terest in the above mentioned property to John Glenn, filed a petition, stating that the trustee both before and after his ap- pointment, contracted, and agreed to charge no commission, and praying that the Auditor's accounts allowing him the same, might be corrected and that the interlocutory orders of the 8th and 18th of November, 1844, and those ratifying the Auditor's accounts, might be vacated and set aside. A petition with similar averments was filed by John Glenn, who also stated that he had purchased five of the seven parts into which the property was to be divided, relying upon the assurances of the trustee that he would charge no commission for his services, and prayed that the same might not be allowed. The answer of the trustee to the petition of William Barry, with which his answer to that of said Glenn substantially agreed, stated, that it was thought at one time that the property could be sold by an agent, in which case he promised to undertake the duty as a friend of the heirs, charging no commission for selling and distributing the money, but that he never contracted to make no charge as trustee under the appointment of the court. That, could the property have been sold under the decree in a reasonable time, and without involving him in extraordinary labor and trouble, he had intended charging no commission be- yond what would cover his expenses, and to that extent be- lieved he had expressed himself. The trustee also denied that he had contracted to make no charge for renting the property, &c. ; he admitted, that after the sale, he had mentioned to the purchaser that he did not design charging a commission on the purchase money, but upon reflection he had since deter- mined to submit the question to the court, in view of his trouble in discharging the trust. A great deal of testimony was from time to time taken in the case, and the questions presented by the petitions having been argued before the Chancellor, he at this term delivered the Ibl lowing opinion:] 22 HIGH COURT OF CHANCERY. THE CHANCELLOR: In deciding upon the propriety of allowing commissions to the trustee upon the sales of the property, the court is not em- barrassed by any previous order making such allowance, no such order having been passed ; the sale itself, indeed, not being finally ratified. That a trustee may waive his claim to commissions, where that claim exists, has been decided by the Court of Appeals in the case of Ridgely vs. Gittings, 2 Harr. fy Gill, 58, and of course is not to be disputed, nor has it been disputed in this case. Without imputing to the trustee any improper conduct in this case, or any the least desire to escape from his engagement in reference to the claim for commission on the proceeds of the sales of the property made by him, (and the court certainly means to make no such imputation,) I am, nevertheless, of opin- ion, after a close examination of all the evidence, that it was distinctly understood that no such charge was to be made by him. And I am further of opinion, that when Mr. Glenn pur- chased five out of the seven shares into which this estate is to be divided, he was well warranted in believing, both from the oral and written declarations of the trustee, that the property would be sold by the latter, unburdened by the charge of com- missions. This, the Chancellor thinks, is the conclusion to which any mind must come, after a careful examination of all the evidence. It is also clear, he thinks, that in some of the conversations and letters of Mr. Campbell upon the subject of selling this property, a judicial appointment for the purpose was within the contemplation of the parties; and I do not, therefore, see how the distinction taken in the answer, between the duties of an agent and those of a trustee, appointed by the court, can avail him. Without going into a detailed investigation of the proof, the Chancellor upon this statement of the conclusion to which an examination of it has brought him, considers it proper to pass an order disallowing the claim to commissions upon the sales of the property. BARRY VS. BARRY. 23 The question raised by the petition of William J. Barry is a different one. He has nq^interest in the proceeds of the sale, having previously thereto sold and conveyed his share of the estate to Mr. Glenn. His interest is limited to the rents and profits, of which he was entitled to one-seventh, to the period of his sale. He alone petitions for a re-examination of the accounts, and a disallowance of the commissions already allowed to the trustee upon the rents. The other parties, therefore, must be re- garded as acquiescing in these allowances, or at least consid- ered unwilling to embark in litigation with respect to them. William J. Barry prays that the enrollment of four orders of the court, dated the 8th and the 18th of November, 1844, the 7th of January, 1845, and the 21st of February, 1846, may be vacated and set aside, and that the accounts of the Auditor may be re-examined and corrected in regard to the commissions, and some other allowances, made to the trustee. He states in his petition that he had then but recently obtained a knowledge of these orders, but he does not say when he obtained the know- ledge. It has been argued on the part of the trustee, that these or- ders being enrolled, an original bill upon the ground of fraud, or a bill of review should be filed to vacate them, and many authorities have been cited in support of this position. Ex- pressions were certainly used by the Court of Appeals in the case of Burch et al. vs. Scott, 1 G. fy J., 393, from which it might be fairly inferred, that after a decree is obtained and en- rolled, a petition is not the proper proceeding to obtain a re- hearing. The language of the court at page 424 is, "if a de- cree be obtained and enrolled, so that the cause cannot be re- heard upon a petition, there is no remedy but by bill of review, which must be upon error appearing upon the face of the de- cree, or upon some new matter, as a release, or receipt, dis- covered since." But in the more recen^ case of Oliver vs. Palmer fy Hamilton, 11 Gill Sf Johns., 137, it was decided that the enrollment of a decree alleged to have been obtained by surprise, might be vacated upon either a bill or petition, and in Wooster et al. vs. Woodhull, 1 Johns. Ch. Rep., 539, and Lan- 24 HIGH COURT OF CHANCERY. sing vs. McPherson, 3 Johns. Ch. Rep., 424, petitions to vacate enrolled decrees were filed, and were considered by the Chan- cellor as proper proceedings for the purpose. Without, however, deciding that a petition was or was not the appropriate remedy in this case, the Chancellor thinks the prayer cannot be granted. The order of the 18th November, 1844, made the allowance to the trustee of commissions on the rents collected and dis- bursed by him, and it is not until August, 1846, that any objec- tions is made to this allowance. It certainly would be attended with great inconvenience and be productive of injurious conse- quences, if the decrees and orders of the court, after so great a length of time may be set aside, except upon very strong grounds. This objection of delay struck Chancellor Kent with great force in the case of Lansing and McPherson, and drew from him the remark, that to justify the interference of the court in such a case would require a very special case. And in the case of Wooster vs. Woodhull it was stated by the same Chan- cellor, that there was no general or positive rule upon the sub- ject, but that the court must exercise a sound discretion, arising out of the circumstances of each case. In both of these cases the relief sought by the petitions was denied, because of the de- lay and negligence of the party applying to the court for its in- terposition. There would, therefore, be great difficulty in granting the prayer of the petition of William J. Barry, upon the ground of the delay in applying for relief against the orders, even if the court was satisfied that the merits were with him. But the court is not so satisfied. The Chancellor has already expressed the opinion, that there was an understanding or engagement, that no commission would be charged by the trustee on the sales, and that Mr. Glenn purchased a large ^portion of the property with knowledge of that engagement, arid, therefore, that as against him, certainly it would be improper to charge commissions. But this property, it seems, was held and rented by the trustee from 1839 to 1846 ; thus devolving upon him a great deal of ESTATE OF EDWARD WILLIAMS. 25 extraordinary trouble and responsibility ; and his accounts show, that he discharged the duties of the trust with care and fidelity. That he should have engaged to perform these onerous, and long continued duties without compensation, or that such a state of things could have been within the contemplation of the par- ties, at the period to which the evidence refers, is not to be as- sumed without the stronger proof, and I am by no means satis- fied that such is the case. Under these circumstances, and with these views of the justice of the case, as presented by the pe- tition of William J. Barry, I shall pass an order dismissing it. The Chancellor understood, in the course of the argument, that the specific objections taken in the petition of William J. Barry, to a number of the credits allowed to the trustee in the accounts of the Auditor, were abandoned, with the exception of the allowance of commissions, and the sum of one hundred dol- lars retained by him on account of William J. Barry's share of the personal estate. But as this sum of one hundred dollars was applied in extinguishment of a part of the over payment to the petitioner on account of the real estate, it is not perceived how he is injured by it. [No appeal was taken from the decision in this case.] ESTATE OF EDWARD WILO LIAMS, DECEASED. 5 [TRUSTEE TO SELL BEING ALSO GUARDIAN, AS TO THE LIABILITY OF HIS SURETIES.] WHEN a final account has been passed, or the time limited by law for the set- tlement up of an estate has elapsed, and the same person who is executor or administrator, is also guardian to the parties entitled to the surplus, the law will adjudge such surplus in his hands, in that character in which his duty requires he should hold it. The transfer in such case is effected by operation of law, and requires no act of the party himself. This principle does not apply to a trustee appointed under a decree of a Court of Chancery to sell property, where no time is fixed by law, for the comple- tion of his trust. 3 26 HIGH COURT OF CHANCERY. [By a decree of this court passed on the 2nd of August, 1837, John S. Selby was appointed trustee to sell certain parcels of real estate, which had been devised by Edward Williams, de- ceased, to his widow, Editha Williams, for life, with remainder in fee to four of his grand-children. On the 5th of the same month he gave bond as such trustee, with Nicholas I. Watkins and Basil Shephard as his sureties, and on the 7th of Septem- ber following, he sold the said property on the terms specified by the decree, viz. The interest on the purchase money to be paid annually, and the principal in five years from the day of sale. The tenant for life was duly paid the said interest, and from the 27th of May, 1842, to the 7th of September, the trus- tee received on account of the principal the sum of $2011, for which he did not account, and since that time he became ut- terly insolvent. On the 8th of July, 1844, a petition was filed by the grand- children of the testator to obtain from said Selby an account of his proceedings as trustee, in reply to which, he stated, that he had received the sum above mentioned, with which, after making certain deductions, he had, with the consent of the parties interested, charged himself as guardian to two of said grand-children. As guardian to these children he had, on the 12th of June, 1837, given bond with Thomas Robinson and Harriet Selby for his sureties. And on the 10th of April, 1847, another petition was filed in this cause by Charles R. Stewart, administrator of Thomas Robinson, deceased, Harriet Selby, Nicholas I. Watkins and Basil Shephard, expressing a doubt as to which set of sureties, Selby should be held liable for his default, and praying the court, upon a view of all the circumstances of the case, to determine their respective rights and obligations. A commission to take testimony in reference to the matter of this petition was issued and returned ; and there was also returned with the same a mortgage dated the 21st of October, 1843, executed by said Selby to Nicholas I. Watkins, one of the sureties on his bond as trustee, and James H. Watkins, who with the said Nicholas I. and the said Basil Shephard, had incurred certain responsibilities on his account ; ESTATE OP EDWARD WILLIAMS. 27 against which, the mortgage was intended to indemnify them, and "also to save harmless and indemnify the said Nicholas I. Watkins and Basil Shephard as sureties on his trustee's bond hereinbefore mentioned." Selby, whose testimony was taken under this commission, denied that he had ever charged himself as guardian with the money received by him from the purchasers of the estate of Williams ; he stated that he had only intended doing this on certain terms, which he described, and which he said had not been complied with. To a cross interrogatory on the part of Stewart and Mrs. Selby, he replied that it was his impression, that when he executed the mortgage he did not know the exact sum due, but whatever money he had received as trustee, it was his intention, and the said Watkins' intention, to have se- cured by the said deed ; that he was not asked for the mort- gage, but gave it of his own motion. The case having been argued before the Chancellor, he de- livered the following opinion, after first stating the facts :] THE CHANCELLOR : Upon this state of facts, I am called upon to decide, whether the burden of the loss resulting from the default of Selby shall be thrown upon the sureties in his bond as trustee, or guardian; or, in other words, whether the balance which is or ought to be in his hands, of the purchase money of the estate of Edward Williams, is to be considered in his hands as trustee under the decree of this court, or as guardian under the appointment of the Orphans Court ? Upon this question, the solicitors of the parties have been fully heard, and the facts and circumstances of the case deliberately considered. The solicitors for the sureties in the bond given by Selby as trustee, seem to consider the case as coming within the princi- ple decided by the Court of Appeals, in the case of Watkins, administrator vs. The State, use of Shaw, 2 G. fy J., 220, in which it was decided, that where a sole executor sustains the double character of executor and guardian, the law will ad- judge the ward's proportion of the property in his hands, to be 28 HIGH COURT OF CHANCERY. in his hands in the capacity of guardian, after the time limited by law for the settlement of the estate, whether a final account has been passed by the Orphans Court or not, upon the princi- ple, that what the law has enjoined upon him to do, shall be considered as done. The Chancellor is not able to perceive the analogy between that case and the one now under consider- ation. The law has limited a period within which an executor or administrator shall settle the estate, and when the same per- son is clothed with either of those offices, and is also guardian of the parties to whom the surplus, after paying the debts of the deceased belongs, it seems entirely proper, when the time for the final settlement of the estate has elapsed, that he should be regarded as holding such surplus in the character in which his duty requires he should hold it. The transfer in such a case from the executor or administrator to the guardian he being the same individual is effected by operation of law, and requires no act of the party himself. But the case of a trustee appointed under a decree of this court to sell property is en- tirely different. JVb time is fixed by law for the completion of his trust. His duty, and the condition of his bond require him to perform the trust reposed in him by the decree, or that may be reposed in him by any future decree or order in the prem- ises ; but there is nothing in either which limits or defines the time within which the trust reposed in him must be completed. The Chancellor is not aware that the counsel undertook to state at what precise period this shifting of the property from Mr. Selby, trustee, to Mr. Selby, guardian, took place, and he thinks it would be extremely difficult to do so. His appoint- ment as trustee took place in August, 1837, but the money in question was not received until 1842 five years afterwards nor could it have been received earlier, unless the time of pay- ment had been anticipated, as the credit on the principal pro- ceeds of sale did not expire until the 7th of September of that year. Selby unquestionably received this money as trustee, and was to account for it as such. At what period did he cease to hold it in that character, and become responsible for it as guardian ? is a question which seems to me not easily ESTATE OF EDWARD WILLIAMS. 29 solved. It is said, that though the credit did not expire until 1842, and the payment of the money due by the purchasers could not of course have been compelled earlier, yet still the rights of the parties might have been settled sooner, and the amount due the wards ascertained. But suppose this had been done, would the uncollected money due from the purchasers have been considered in the hands of Selby as guardian, until an order of court has passed authorizing him to receive it in that character ? The Chancellor does not think so. If, indeed, Selby had received this money, either after or be- fore it was payable and had charged himself with it as guar- dian, it may be that upon the principle, that the court will sane- tion when done, that which upon application would have been ordered to be done, he would be regarded as holding it in that character. But he did not so charge himself, and if we are to credit his deposition taken on the part of Watkins, he did not intend so to charge himself except upon terms which have never been complied with. It seems to the Chancellor, that if the transmutation insisted upon by the counsel for the sureties in the trustee's bond, has been effected by operation of law, then it follows, that not only is the sum of $2011 in the hands of Selby as guardian, but the residue of the purchase money must be in his hand in the same character. There is, however, another view of the case in which I am of opinion, the sureties in the bond given by Selby as trustee, must be held responsible, at least to the extent of a fair rateable proportion of the property mortgaged to them as an indemnity. Indisputably at the date of that mortgage the 1st of October, 1843 which was after the receipt of the money by Selby, he and the mortgagees considered him as occupying the position of trustee with reference to this property, and liable for it as such. No such idea as a legal transfer from trustee to guardian was entertained then, but both mortgagor and mortgagees thought that the risk continued ; and for that risk the indemnity was provided. The object of the deed, as the court thinks, was not merely to indemnify the sureties in the bond of the trustee, but to secure the payment of the money which he had received in 3* 30 HIGH COURT OF CHANCERY. that capacity ; and this view of the object of the deed is con- firmed by the evidence of the trustee himself, examined on the part of those sureties. The Chancellor entertains a decided opinion, that the parties entitled to the proceeds of the estate of the deceased, would have a right to insist that the mortgaged property should be applied rateably to the payment of the debts to the bank, and the amount due by the trustee to the estate of Williams, and if so, that the sureties of the mortgagor in his bond as guardian admitting that bond to be the responsible obligation have the same right. Indeed, the counsel for the sureties in the trustee's bond were not understood to deny that the bank and the repre- sentatives of the deceased would have a right to insist upon the application of the mortgaged property, but they dispute the right of the sureties in the guardian's bond, for want of privity. But if the devisees of Williams would have this right, then the mortgaged property must be regarded as a security held by them for the payment of their claim, and if so, it would seem to follow, that upon the payment of their claim by the sureties of their guardian, the latter would have a right to insist upon an assignment to them of those securities. Cheesborough vs. Millard, 1 Johns. Ch. Rep., 130. The Chancellor will pass an order founded upon the views here presented ; and being also of opinion that Mrs. Williams is entitled for life to the interest upon the entire proceeds of the estate sold, will likewise pass an order to that effect. [No appeal was taken from the order in this case.] BUCKINGHAM VS. DORSET. 31 THE ATTORNEY GENERAL AT THE RELATION OF LARK1N BUCKINGHAM vs. JANETTE DORSEY. MARCH TERM, 1847. [PROCEEDING TO AVOID A PATENT FOR ALLEGED FRAUD.] A WARRANT of resurvey does not authorize a party to include a vacancy not contiguous to the tract or tracts to be resurveyed. And a person who has not a title to the land on which he obtains a warrant of resurvey, does not, in virtue of such warrant, acquire a right of presumption in the adjoining vacancy. Yet, patents obtained by a party who has no legal title to the original, or upon a certificate of resurvey, including vacancy not contiguous to the original, will not be vacated, except for fraud in fact, charged and proved, though upon caveat filed in the land office, they would have been refused. A proceeding against an innocent purchaser, without notice, to set aside a pat- ent forty-seven years after its date, and forty-five after the patentee had sold and conveyed th4 land to such purchaser, cannot receive the countenance of a court of equity. [In the year 1795, Samuel Chase, by virtue of a warrant of resurvey, taken out in 1793, on a tract of land then owned by him, called "Mansfield Purchase," took in several vacant par- cels, some of which, as appears by these proceedings, were not contiguous to the original tract, and obtained a patent in 1795, by the name of "Chase's Forest." In 1797, he sold a part of this land to William Hobbs, who, by his will, devised the same to defendant. In 1841, the testator, Buckingham, took out a special warrant for Buckingham Place, which was located upon a part of the land, included in the survey. The certificate of survey being duly returned, a caveat was filed against it by the defendant, Dorsey, in 1842, which is still depending. The bill was filed in this case to vacate the patent obtained by Chase, on the ground of fraud, in taking in tracts not contiguous to his own land.] 32 HIGH COURT OF CHANCERY. THE CHANCELLOR: This is then the case of an information filed in the year 1842, at the relation of a party whose title, whatever it is, commenced in 1841, to vacate a patent of land granted in 1795, which the the patentee in 1797, sold and conveyed for a valuable consid- eration, to an individual who could not have had notice of the facts upon which the patent is now impeached. It is certainly true, that a warrant of resurvey does not author- ise a party to include vacancy not contiguous to the tract or tracts to be resurveyed and it is equally well established law of the land office, that a person who has not a title to the land on which he obtains a warrant of resurvey, does not, in virtue of such a warrant, acquire a right of pre-emption in the adjoining vacancy and yet the cases of Hammond vs. Norris and Ham- mond vs. Warfield, 2 H. fy /., 140, 141 and 151, show, that patents obtained from the land office by a party who has no legal title to the original, or upon a certificate of resurvey in- cluding vacancy not contiguous to the original, are neverthe- less valid and available, unless some intervening right of a third party shall deprive them of their operation. These cases prove conclusively, that such grants are not void, though obtained irregularly and against the rules of the land office, and the case of Hammond vs. Ridgely, 5 H. fy /., 263, shows that a grant is not void, though the surveyor includes land not within his county, if no fraud is practiced, though upon caveat in the land office the grant would have been refused. These departures, then, from the rules of the land office, will not void the grant, if the ingredient of fraud is wanting, and it is believed that no case can be found, on which a grant has been vacated except for fraud in fact, charged and proved. The cases in 1 H. fy /., 332 and 374, are very strong to show that actual fraud is indispensable in an attempt to vacate a grant. The case of Hoye vs. Johnston, decided by the Court of Appeals at December term, 1844, was a case of actual fraud upon the rights of a third party, who had previously acquired an interest in the land, and was put expressly upon that ground. But this is not a proceeding to vacate a patent whilst the BUCKINGHAM VS. DORSET. 33 land is held and owned by the patentee, to whom the irregu- larity and the imputed fraud founded upon that irregularity are attributed, but it is a proceeding against an innocent purchaser, without notice, instituted forty-seven years after the date of the patent, and forty-five years after the patentee had sold and con- veyed the land to such innocent third person for a valuable con- sideration and without notice, and this too by a party who had but recently acquired an interest in the subject of this contro- versy. The state of Maryland, in the year 1795, sold and granted this land, first receiving the purchase money from the pur- chaser, who, in two years afterwards, sold and conveyed it to an innocent and third person, who paid him value ; and then, forty-five years afterwards, a party claiming under the state, seeks to avoid the title acquired by this innocent third person. It seems to the Chancellor, that such an attempt cannot re- ceive the countenance of a court of equity. If parties who purchase lands, are required not only to trace the title back to the patent, but to go behind the patent, and see that the pro- ceedings which led to it are all regular, difficulties of a serious, if not insuperable nature, would exist in the investigation of titles. If in purchasing land taken up under a warrant of re- survey, the purchaser must see at his peril, that no vacancy is included which is not contiguous to the original tract, he would also be bound to see that the party by whom the warrant was taken out, had a sufficient title to the original, to authorize him to sue out such a warrant. It seems to the Chancellor, that the argument ab inconvenienti is powerful against such a prin- ciple, and nothing but high authority could induce him to adopt it. For these reasons, he deems it proper to dismiss this pro- ceeding. [No appeal from the decree in this case.] 34 HIGH COURT OF CHANCERY. CATHARINE HARRISON vs. MARCH TERM, 1847. WILLIAM McCONKEY. [LIFE INSURANCE POLICY ASSIGNMENT OF.] BY the terms of the assignment of a life insurance policy, the assignee was to receive the proceeds, and if other securities held by him were insufficient for that purpose, to apply the same to the satisfaction of his claims against the assignor, and to pay over the residue, if any, to the wife of the latter. HELD That this was such a consummate transfer and delivery of the policy, as to take from the assignor the legal power and dominion over it, and authorized the company to pay the money to the assignee without the interposition of the administrator of the assignor, and that the title of the wife to the residue, after paying the claim of the assignee, was good. [Thomas P. Harrison, deceased, late of Baltimore, in March, 1846, effected an insurance of his life in the National Loan Fund and Life Assurance Company, (chartered by act of the British parliament, and doing business in Baltimore,) for the sum of $1000, and received from said company its policy, which he assigned to the defendant, McConkey, to whom he was then largely indebted, in aid of certain securities which he then held, and also as a security for additional advances, at that time made by him, to the assignor. By the terms of the assignment, the proceeds of the policy, were on the death of the assignor, to be received by the assignee, and in case the other securities, held by him were insufficient for that purpose, to apply said pro- ceeds, or so much thereof, as might ' be necessary to the satis- faction of his claims against the assignor, and the residue to pay over to the wife of the latter, the present complainant, to her own use, and free from all claims of the creditors of said Harrison, the assignor. A short time previous to his death, Harrison again requested said McConkey not to resort to the policy of insurance, until his other securities should be exhaust- ed, and it appeared from the proceedings, that the deceased, though he effected said insurance at the suggestion of McCon- key, was partly induced so to do by the desire of securing to HARRISON VS. McCONKEY. 36 his wife in the event of his death, the sum for which he insur- ed. After the death of Harrison, in November, 1846, McCon- key received the amount secured by the policy, which latter was delivered to the agent of the company, and transmitted to the general agent in New York. McConkey having been nearly paid without resorting to the proceeds of the policy, the same was claimed by the widow of the deceased, whose administrator set up a counter claim there- to, and by his answer denied that his intestate made any such assignment as was valid and effectual in law, to vest the policy or the proceeds thereof in the complainant.] THE CHANCELLOR : I am of opinion, upon the facts proved in this case, that there was such a consummate transfer and delivery of the policy in question, as took from the husband the legal power and do- minion over it ; that after he had assigned the policy by in- dorsement and delivery to the defendant, McConkey, for the purposes disclosed in the evidence, there no longer remained to the assignor any authority or control over it ; that the property passed by the indorsation and delivery ; and that upon the death of Harrison, the insurance company had full authority to pay the money to McConkey, the assignee, without the inter- position of the administrator of Harrison. This is not like the cases of Pennington vs. Patterson, 2 Gill Sf Johns. , 208 and Bradley and wife vs. Hunt, 5 Gill Sf Johns., 54, in which the legal power and dominion over the property in dispute, remained, notwithstanding the acts done, by the alleged donors ; but it is the case of a complete and absolute transfer of the entire possession and title, leaving the party making the transfer, no power whatever over the subject, and requiring nothing of him or his administrator to perfect it. It is believed that according to the reasoning of the Court of Appeals, in the cases referred to, that tribunal would hold the right of the wife, in this case, to be good against the adminis- trator of the husband. I shall accordingly so order, but the case must go to the 36 HIGH COURT OF CHANCERY. Auditor, for the purpose of stating an account, showing the precise amount which may be due the complainant, on account of the proceeds of the policy received by McConkey, and what surplus may remain in his hands, of the other securities assign- ed him by Thomas P. Harrison, which will be payable to his administrator. It is thereupon ordered, this 29th day of Sep- tember, 1847, that this case be, and the same is hereby referred to the Auditor, with directions to state an account, in conform- ity with the views hereinbefore expressed, arid such other ac- counts as the nature of the case may require. [No appeal was taken from this order.] CATHARINE SP ANGLER vs. JOHN STANLER. AND ELIZABETH CARROLL vs. SAME. MARCH TERM, 1847. [DOWER ACT OF 1818, CH. 193.] A LEASE of lands for ninety-nine years, renewable forever, is a mere chattel in- terest, and not an estate in lands, from which dower can be claimed. To make out a claim for dower, it is necessary to show that the husband was seized of an estate of inheritance, during coverture, of which any issue the wife might have had, might by possibility have been heir. Leases containing covenants, on the part of the lessor, to convey the fee sim- ple to the lessees, when requested so to do, cannot be made to operate as a conveyance by lease and release at common law. The estates which passed by such deeds of lease were legal and not equitable estates ; and, consequently, the act of 1818, ch. 193, extending the dower right to lands, held by equitable title in the husband, has no application. [The question involved in this case was, whether the com- plainants were dowable out of lands held by their respective husbands, under leases for ninety-nine years, renewable forever, SP ANGLER AND CARROLL VS. STANLER. 37 containing covenants on the part of the lessor, to convey the fee simple to the lessees, their executors, administrators or as- signs, when requested so to do. ] THE CHANCELLOR: Notwithstanding the ingenuity and research displayed by the counsel of the complainants in these cases, the Chancellor thinks, they are not entitled to the relief prayed by their bills. They ask for an assignment of dower, and an account of rents and profits from the deaths of the respective husbands of the complainants, until the dower shall be assigned, and as the title of the husbands is disputed, it is not clear, that it might not be proper to put the complainants to the establishment of it at law, before granting the relief asked for. Wells et ux vs. Wells, 2 Gill and Johns., 468. These complainants' husbands were not clothed with such estates, in the lands out of which the dower is claimed, as to justify his granting relief. They both held under deeds executed to them by Richardson Stewart in the year 1841, these deeds were simply leases, for ninety-nine years renewable forever, executed upon the consid- eration of three hundred dollars paid lessor, and an engagement on the part of the lessees, to pay a nominal annual rent if de- manded. The habendum is to the lessees, their executors, ad- ministrators and assigns, and the covenants to be performed on their part, bind them and their personal representatives. The whole frame of the deeds, stamps them as a lease, and as such, passing merely chattel interests in the property em- braced in them, which, upon the death of the grantees, would devolve upon their personal representatives, and indeed it ap- pears upon the face of the bill filed by Elizabeth Carroll, that, so far as regards the land out of which she claims dower, the defendant holds under a purchase, made of the personal repre- sentative of the intermediate assignee of the lease from Stew- art, to her husband. But in order to make out a claim to dower, it is necessary to show, that the deceased husband was seized of an estate of in- 4 38 HIGH COURT OF CHANCERY. heritance during the coverture of which any issue which she might have had, might by possibility have been heir. 4 Kent Com., 35. It seems to me impossible to say, that any issue which either of the complainants might have had, by their respective hus- bands, could have taken this property as heirs, and if not, one of the prerequisites of the dower claim is wanting. The complainants however insist, that the covenant in the deeds, binding Stewart the grantor, when required by the grant- ees, their heirs and assigns, to convey the demised premises in fee, at their expense, make these deeds effectual to pass the fee ; that the lease of the term for years, operating as a bargain and sale, and the use and possession being in the bargainee, the covenant operates as a release, by way of enlargement of the estate, and thus transfers the entire interest of the bargainer. But this mode of conveyance by lease and release, it is thought, cannot be made effectual in this way, the lesser estate must be created first by a bargain and sale, to which the stat- ute of uses awards the possession, and the lessee being thus in the enjoyment of the use by the bargain, and of the possession by the statute, is competent to receive a release of the reversion. But if he is not thus in the possession and enjoyment of the lesser estate, how can the release operate by way of enlarge- ment. There would, in truth, be nothing to enlarge. 4 Kent, 494 ; 2 Thomas' Coke, 581, note. The covenant in these deeds could not, in my opinion, in any view of the subject, be regarded as releases at common law. They certainly were never intended so to operate, but were merely designed to bind the grantor, at some future time, when requested by, and at the expense of the grantees, to convey them the estate in fee. But unquestionably the parties never sup- posed, or designed by this covenant, to adopt an artificial mode of conveyance, which, if effectual, at once transferred the entire estate from the grantor to the grantee. But the complainants' solicitors contend, that in a court of equity, which considers that as having been actually done, which is agreed to be done, these deeds, by force of the cove- SP ANGLER AND CARROLL VS. STANLER. 39 nant, will be regarded as conveyances of the absolute estate. There is no doubt of the existence of such a doctrine in courts of equity but the question is, what was it which was agreed to be done by these deeds. Why merely that the grantor, when requested by the grantees, their heirs and assigns, and at their cost and charge, would execute and deliver them deeds in fee simple. There is no allegation, or proof, that such request ever was made at any time, and the attempt is, by this equitable principle, adopted to advance the purpose of justice, in the case to which it is applicable, to make these parties, long, after their deaths, take estates, which they never demanded, or wanted, when alive. The 10th section of the act of 1818, chap., 193, which de- clares, that widows shall have dower in lands held by equitable title in the husbands, is cited, for the purpose of showing that Catharine Spangler, one of the complainants, is so entitled, it appearing that her husband did not alien the land until the year 1821, it being supposed that the title of her husband, if not a legal was certainly an equitable one. The Chancellor thinks, however, that the estates, whatever they were, which passed by the deeds, were legal, and not equitable, estates, and consequently that the act of 1818, extend- ing the dower right to lands held by equitable title in the hus- bands, has no application : and so according to the views already expressed, that this estate was leasehold simply, the relief prayed by the bills must be denied. It is true, the claim to dower is a favored one, but it must be recollected in these cases, that it is set up against alienees for a valuable consideration, one of whom purchased from the per- sonal representative of a preceding alienee, and that the estate out of which the dower is claimed, has been regarded as one, with which the heir at law had no concern. The Chancellor, upon the best reflection he can give the sub- ject, is of opinion that no relief can be granted upon these bills, and that they must be dismissed. [No appeal was taken from this decree.] 40 HIGH COURT OF CHANCERY. ROBERT GILMOR vs. J> MARCH TERM, 1847. JOHN McP. BRIEN ET AL. .1 [POUNDAGE FEES OF SHERIFF.] As a general rule, the defendant, and not the plaintiff, is answerable for pound- age fees. If an execution issue irregularly, that being the act of the plaintiff, he, and not the defendant, will be liable to the sheriff for poundage fees ; but if an exe- cution is stayed by injunction, the defendant is liable. The claim of a sheriff for poundage fees, is a legal, and not an equitable, claim, and its payment must be enforced by a proceeding at law. An agreement, by an assignee, of certain judgments to pay all legal costs arising thereon, was held not to impose an obligation on him to pay pound- age fees. [Sundry judgments having been recovered against the de- fendant Brien, one at March term, 1841, five at November term 1841, and twelve at March term, 1842, writs of fieri facias were issued upon two of them, returnable at March term, 1842, and upon the others returnable at March term, 1843. The precise date of these writs did not appear, but it was ad- mitted in the proceedings, that the two former were issued in the winter of 1841, and the others in the winter of 1842, and 1843 ; and also that in virtue thereof, levies were made on cer- tain real and personal property of the defendant, Brien, which was advertised for sale. It also appeared that at the dates of the levies, the sheriffs had in their hands for collection, certain officers' fees due by said Brien, and to satisfy them, seized other property of his, but neither the precise date of this seiz- ure or of the levy under the writs, or a schedule of the property levied upon, were produced. On the 5th June, 1843, the complainant Gilmor, who held three several mortgages on the property of said Brien, dated respectively the 1st September, 1841, 22nd October, 1841, and 8th June, 1842, to secure him for moneys advanced, and re- sponsibilities incurred for Brien, to a very large amount, filed his bill against said defendant, and the judgment creditors,. GILMOR VS. BRIEN. 41 praying among other things, for an injunction to prevent the latter from proceeding upon their judgments. Subsequently the complainant purchased up these judgments, and had them entered for his own use, and agreed to pay all legal costs aris- ing thereon. A petition was afterwards filed in the case by Thomas Keller and David T. Wilson, late sheriff of Washington county, for an order on the complainant (who was admitted to be in actual possession of the property, claiming to hold under the mort- gages to him,) to pay them the poundage fees on said execu- tions, and also the officers' fees above mentioned. This petition, (which sets out the above mentioned facts and also alleges the insolvency of the defendant Brien,) having been argued before the Chancellor, he delivered his opinion as follows :] THE CHANCELLOR : The general rule, undoubtedly, is, that the defendant and not the plaintiff, is answerable for the poundage fees. Howard vs. the Levy Court, 1 H. fy J., 558, approved in Gurley vs. Lee, Gill Sf Johns., 395. In this case, Mr. Gilmor is the plaintiff, being the assignee of the judgments, and if he can be made liable for these fees, it must be because of some exception to the general rule, which general rule imposes the burden upon the opposite party. There is nothing in his agreement made at the time he pur- chased the judgments, which imposes this obligation upon him, as it appears by the statement and deposition of Mr. Neil, who transacted the business for him, that he bound himself, and only agreed, to pay those fees which were chargeable to the plaintiffs in the judgments, and none others. The Court of Appeals have said, in the case of Gurley vs Lee, that if an execution issues irregularly, that being the act of the plaintiff, he and not the defendant will be liable to the sheriff for his poundage fees, but in the same case it was de. cided, that if the execution is stayed by injunction, the defend- ant at law is liable. In the case under consideration, the in- 4* 42 HIGH COURT OF CHANCERY. junction was not applied for by the defendant at law, but by a mortgagee of the defendant, who asked for the protection of the court, by way of injunction to save property from seizure and sale under a great number of executions on judgments against the mortgagor, every one of which, but one, appears to be posterior in date to the two first of his mortgages, which embrace all, or a great portion of the mortgagor's property in the county, and one for very large sums of money. The Chancellor is unable to see any thing in the circumstan- ces of the case, which would induce him to throw this burden upon the assignee of these judgments, and to engraft another exception upon the general rule, which makes it the duty of defendants to pay the poundage fees. But even conceding, for the sake of the argument, that Mr. Gilmor is liable to the sheriffs for these fees, upon what principle is it, that an appli- cation can be made to this court, to compel the payment. The claim of a sheriff for his poundage fees is a legal, and not an equitable claim, and if Gilmor has, by taking an assignment of the judgments, or obtaining an injunction to restrain the judgment creditors from proceeding upon their executions, made himself liable to pay the money, what is to prevent the petitioners from proceeding at law against him ? The case of Cape Sable Company, 3 Bland, 630, relied upon by the council for the petitioners, decides, that the claim is a legal one and that a court of chancery will not interpose, unless the sheriff, without such interposition, is without remedy. The right of the sheriff to have recourse to this court, cannot be maintained upon the ground of lien, because, it is believed, he has no such lien, for his poundage, as will entitle him to follow the property when brought into this court for administration , and such was the opinion of the late Chancellor in the same case. But the case of the Cape Sable Company in all those cir- cumstances, which induced the Chancellor to sustain the appli- cation of the sheriff, is unlike the case under consideration. In that case the company, considered to be alone liable for the fees, was, by the decree of the court, and the sale under the GILMOR VS. BRIEN. 43 decree, stripped of every atom of its property, and reduced, in the language of the Chancellor, to the condition of a mere pennyless entity, utterly destitute of pecuniary ability to pay any claim. The sheriff had levied executions upon the property of the company to satisfy judgments against it, when certain persons, representing the interests of one of the corporators of the com- pany, applied for, and obtained an injunction, after which, and while the injunction was in force, a decree for a sale passed, by consent of the parties, under which, the entire property of the company was sold, including the whole of that upon which the executions had been levied. Under these circumstances, it is perfectly obvious, that unless the sheriff could recover the fees due him from the proceeds of the sale in court, he was entirely without remedy. But how different was that case from this here there has been no sale, and there is no pretence, that Mr. Gilmor, if lia- ble at all for these fees, may not be reached by a proceeding at law. The agreement, to be sure, asserts, that Mr. Brien is in- solvent, but that does not affect the responsibility of Mr. Gil- mor, and the order applied for, is, that he shall be required to pay the money. The Chancellor, therefore, thinks, that the prayer of the peti- tion cannot be granted as respects the poundage fees ; and the claim for officers' fees, under the circumstances of this case, is also inadmissible, and consequently an order will be passed dis- missing the petition. [No appeal was taken from this order.] 44 HIGH COURT OF CHANCERY. ROBERT M. GIBBS ET AL. ) vs. > JnLY TERM, 1847. WILLIAM C. CUNNINGHAM ET AL. ) [TRUSTEE'S SALE OBJECTIONS TO.] AN advertisement for sale of lands by a trustee, stated that, "By virtue of a decree of the High Court of Chancery, there will be sold certain real estate," naming the tracts and giving their locality, "of which J. C. died seized and possessed ;" but did not state the names of the parties to the suit in which the decree passed, nor the several incumbrances upon the property. HELD That the sale would not, on this account, be vacated in the absence of proof, that competition in the purchase was prevented, or the sale in any respect prejudiced thereby. The objection that the trustee did not sell the interest of the parties to the suit, but only the interest and title of which J. C. died seized and possessed, is an objection which only the purchasers themselves could take, as they, and they alone, are injured by it. Where a sale is objected to on the ground of inadequacy of price, resulting from doubts about the title, which doubts could have been removed by reasonable efforts on the part of the trustee, his neglect to do so may effect the question of ratification. Inadequacy of price will not induce the court to vacate a sale, in other respects unexceptionable, unless such inadequacy is so gross as to indicate a want of reasonable judgment and discretion on the part of the trustee. The sale, in this case, was made for $3000. HELD that an offer of $4000, made subsequent to the sale, and after the value of the property had been en- hanced, could have but little weight in determining whether the property previously sold at a price so much below its value, as to indicate a want of reasonable judgment in the trustee. The validity or invalidity of a sale must depend upon the state of circumstances existing at the time it was made. In sales made by trustees, acting under Ihe decrees of a court of chancery, the court is the contracting party on the one side, and the bidder on the other the trustee being regarded as the mere agent or attorney of the court. A trustee after making fruitless efforts to sell the lands, according to the terms of the decree, sold them at private sale, at a price greatly exceeding the best offer he could get for them at public sale. HELD That, upon the principle that chancery will always ratify an act when done, which upon previous application would have been authorized, the objection to the act of the trustee founded upon the form of the sale, cannot prevail. Whilst the court will vacate sales, by trustees, made under the influence of error, fraud, misrepresentation or injurious mistake, it would, nevertheless, be a fatal policy to be astute in finding out objections to them. It was objected to the sale that the trustee's bond was not upon stamped paper, as required by the act of 1845, ch. 193, which went into operation on the 1st GIBBS VS. CUNNINGHAM. 45 of May, 1846. The bond was dated on the 29th of April, 1846, but was not filed and approved until the 7th of July, following. HELD That, this bond having been approved by the Chancellor, as required by the decree, it would be of dangerous consequence to say that the purchaser shall not get the benefit of his purchase, if the bond for any reason is defective. [This case was heard on exceptions to the sale made by the trustee appointed to sell the lands of James Cunningham, de- ceased, for payment of his debts. According to the requi- sitions of the decree under which he acted, the property was first exposed at public sale, on the 8th September, 1846. The bids were rejected by the trustee for insufficiency, but the ad- vertisements in the papers were still continued by him. In- quiries were afterwards made concerning the property of Duff Green, as agent for certain other persons, and the trustee ex- pressed his willingness to receive and consider any propositions from him, but nothing further was heard from him, from that time to the 24th of May, 1847 ; and it was on the 15th May, 1847, sold to Jacob Markell, at private sale, for $3000 in cash, which price was deemed advantageous by the trustee, and higher than what was offered at the public sale. A portion of the lands of the deceased had been, in his life- time, mortgaged to Henry Wayman and Richard G. Stockett ; and he had afterwards also executed a deed of trust to said Way- man, who had refused to execute the trusts in any manner. The ground taken by the third exception was, that there was alleged to be an outstanding tax title in some purchaser, the validity of which title was doubtful ; a legal tender of the taxes, and premium, and costs, had been made by the exceptant, Wayman, to the tax purchaser, so as to entitle him to redeem the lands, which was refused, whereby the title of the purchaser was released, and the land re-invested in the former owners. The exceptant stated his belief, that the trustee, at the time of the sale, was ignorant of this tender and refusal. The exceptions argued were filed by Wayman, and the grounds upon which they were based will sufficiently appear from the opinion of the Chancellor, who after stating the case said :] 46 HIGH COURT OF CHANCERY. THE CHANCELLOR: The first objection taken to the sale is, that the public were not properly advised of the title in the property thus sold, which the trustee had the power to sell. This objection rests upon the supposition, that the trustee should have stated in his advertisement, the names of the parties to the suit in which the decree passed, and the several deeds creating incumbrances upon the property. The decree, it will be recollected, directs that the real estate of James Cunningham, deceased, in the proceedings mentioned, or so much thereof as may be necessary to pay his debts, be sold. It does not say in terms, that the title of the parties to the suit shall be sold, though no doubt a sale under the decree would pass such title. The language of the advertisement is, "by virtue of a decree of the High Court of Chancery," there will be sold certain real estate, naming the tracts and giving their locality, of which James Cunningham died seized and possessed. It does not say, his title alone will be sold, but the lands, of which he died seized and possessed. The public was notified by this adver- tisement, that these lands were to be sold under a chancery decree, to which decree, of course, there must be parties, and I am of opinion, that in the absence of evidence, that compe- tition in the purchase was prevented by the character of the advertisement, or that the sale was in any respect prejudiced thereby, it seems to me, it should not on this account be va- cated. A reference to the chancery proceedings, to which the public was directed would have shown who were the parties and what title was to be sold. The trustee's advertisement referred to the fountain of his authority ; described the lands to be sold by name and locality, and give such other information respecting them, as would enable persons disposed to purchase, to ascertain all that was material they should be informed of. The Chancellor does not think, from an examination of forms of the advertisement of chancery sales usually employed, that such precision as is insisted upon by the counsel for the parties objecting to this sale, has been supposed to be necessary. GIBBS VS. CUNNINGHAM. 47 The second objection is, that the trustee did not in fact sell the interest of the parties to the suit, but only the interest and title of which James Cunningham died seized. The purchasers, in their answers to these exceptions, take a different view of the matter ; but conceding that this exception states truly the nature and extent of the interest purchased by Markell, still this seems to be an objection, which only the purchasers themselves could take, as they, and they alone, are injured by it. Besides, it may not be unworthy of remark, that the sale reported by the trustee, disposed of precisely that in- terest in the lands of which Cunningham died seized ; and the answer of Wayman to the bill under which they were sold, states, "that he died seized in fee for the several tracts of land named and described in the bill of complaint." The third objection has reference to the cloud upon the title, which, it is supposed, might readily have been removed, but which the trustee was not in a condition to remove by reason of his ignorance of facts known to Wayman, one of the objectors. This objection may, perhaps, be open to the observation, that if Wayman knew any fact which would disperse the cloud which hung over the title, and omitted to communicate it to the trustee in due time, it does not become him, when a sale has been made, upon the ratification of which other parties, in- terested in the proceeds, are insisting to interpose an objection upon that ground. It is true, that when a sale is objected to upon the ground of inadequacy of price, which inadequacy may be traced to doubts about the title, it becomes material to inquire, whether the trustee might not, by reasonable efforts, have removed the cloud ; and if the court can see that such efforts were not used, the question, whether the sale shall, or shall not be ratified, may be affected by such neglect. Glenn vs. Clapp, 11 G. fy /., 1. But from the very nature of the doubt about the title in this case, it was impossible that any diligence on the part of the trustee could remove it. The opinion of counsel might be taken upon the subject, but nothing short of the judgment of the court could solve the question. It appears by the proceed- 48 HIGH COURT OF CHANCERY. ings, that the party who purchased for taxes, asserted and was determined to maintain the title thus acquired. The fourth and fifth objections are based upon an alleged in- adequacy of price, and upon negotiations carried on by Mr. Wayman for the sale of the property, which resulted, as stated, in selling at a price much higher than the price obtained by the trustee. That inadequacy of price will not induce the court to vacate a sale, in other respects unexceptionable, unless such inadequacy is so gross as to indicate a want of reasonable judgment and discretion in the trustee, was said by the Court of Appeals, in Glenn vs. Clapp, 11 G. # /., 9. It is material, therefore, to inquire, whether the inadequacy of price in this case, is so gross and palpable as to indicate a want of indiscretion and judgment on the part of the trustee. Looking to the bid made on the 8th September, 1846, when the lands were offered at public sale, as any criterion of the price which could probably be obtained for them ; [and] the sale reported, surely cannot be condemned upon the ground of inadequacy, since the sale reported is for a much larger sum than was offered at the public bidding. But it is said, that although the price bid at the public offer of this property, was less than the sum which Markell and Thomas propose to pay ; yet the trustee had information that negotiations were pending, if not concluded, by Wayman, for a much larger sum ; and that under such circumstances the trustee should have at least communicated with Mr. Wayman before he made a sale. The Chancellor thinks, that the rea- sons assigned by the trustee for proceeding as he did, are satis- factory, and indeed, Mr. Wayman himself confesses, that he, and not the trustee, was remiss in not giving information at the proper time. But is there in truth, any evidence, that these lands are worth more ? Or that more could be obtained for them than Markell and Thomas have agreed to give. And emphatically, it may be asked, is there any evidence to show that a better price could have been had on the 15th of May, 1847, the date of the sale. The letter of Duff Green, on the 19th of August, 1847, with GIBBS VS. CUNNINGHAM. 49 its conditions and qualification, cannot be regarded as an offer ; and yet it is the only one which has been made for the property, except such as may be found in the correspondence of the same party, and his son, with Way man ; and in the contract of the 9th June, 1847, between Wayman and Green, which, besides containing stipulations which render it totally inadmissible, is in effect withdrawn by the letter of the 19th August last. In fact, though this property has been in the market by advertise- ment in the newspapers, with very little intermission from August, 1846, to May, 1847, the offer of Mr. Markell is the only one to which any substantial character can be assigned, besides the almost nominal bid on the 8th September, 1846. /j It is true, Mr. Wayman, by a paper filed on the 7th instant, / [Sept. 1847,] agrees to give four thousand dollars for the 1 ( property, on the terms reported by the trustee ; but this offer, k ^ / in my opinion, cannot be allowed to have much weight in deter- ' mini mining whether the property sold previously at a price so much -' below its value, as to indicate a want of reasonable judgment in the trustee. It is made after an event has happened, subsequent to the reported sale, which, in the opinion of many persons, has en- hanced the value of the property. The Chancellor thinks, as was said by the Court of Appeals, in the case of Tyson vs. Mickle, 2 Gill, 384, that the validity or invalidity of the sale must depend upon the state of circumstances existing at the time it was made. The clear equity of such a principle seems \indeniable. The sixth ground relied upon for not ratifying this sale, is founded upon the manner in which it was made. It was a private sale, though the decree, which is in common form, di- rects a public one. For this deviation from the decree, it is supposed, the sale must be condemned. It is an admitted principle, that in sales made by the agency of trustees acting under the decrees of a court of chancery, the court is the contracting party on the one side, and the bid- der on the other ; the trustee being regarded as the mere agent and attorney of the court. I say, this is the principle, though 5 HIGH COURT OF CHANCERY. unlik . ike all other contracts, one of the contracting parties is per- mitted to sit in judgment upon the contract, and pronounce upon its validity or invalidity. Glenn vs. Clapp, 11 G. # /., 8; 2 Bland, 638, 639. The principle, however, is understood to be incontestible, and as has been conceded in the argument, Chancellor Hanson has laid down the rule, which should govern the court in de ciding upon sales made under its authority. In the case of Lawson vs. the State, in 1804, he observed, that reasons which would induce him as proprietor or trustee, to set aside a sale made by his agent, should determine him as Chancellor, to re- fuse his approbation to a sale made by a trustee. It was decided by the late Chancellor, that if a trustee di- rected to sell at public sale, does, notwithstanding, sell at pri- vate sale, the sale will be confirmed, if satisfactory reasons are given for doing so, and no objection is made. Andrews vs. Scotton, 2 Bland, 643. The council by whom this case has been argued, have differed as to what was meant by the Chancellor, when he speaks of no objection being made ; but my impression is, that he must have meant, objections of sufficient force to outweigh the reasons given by the trustee for deviating from the terms of the decree. And that he could not have intended that reasons which would be satisfactory to him in the absence of objec- tions, should be overborne by the mere unsupported veto of any one. Looking to the court as the vendor, and the trustee as its agent, according to terms prescribed by the former, if for rea- sons deemed sufficient by the court, the agent departs from the form in which he is to exercise his authority, who could have a right, merely upon the ground of such departure, to say that the principal should not ratify the act of its agent ? If the principle be sound, that the court is the vendor, and to be considered the proprietor of the thing to be sold, such a right of abitrary interdiction on the part of any one cannot be maintained. But it is to be recollected in this case, that the trustee did GIBBS VS. CUNNINGHAM. 51 not undertake to sell these lands at private sale, until a fruitless effort had been made to dispose of them according to the terms of the decree; and that even after he had failed in this effort, they were constantly kept in the market by advertisement offer- ing them at private sale. It is not the case, therefore, of a trustee who has undertaken to depart from the terms of the authority under which he acts, without first making an effort to comply with them ; but it is the case of a deviation from the terms, after an effectual endeavor to conform to them. It is also a circumstance very material to be considered, that the price at which the trustee has contracted to sell these lands greatly exceeds the best offer he could get for them when ex- posed to public sale ; and another very strong recommendation of the sale made, is to be found in the circumstance, that the property was never withdrawn from 'the public eye, but kept always before it and in the market by advertisements in the newspapers. In Tyson vs. Mickle, 2 Gill, 383, a private sale made by a trustee was confirmed by the court, though the amount of the private bid was considerably less than had been offered for the same property when exposed publicly ; and the court in that case, say, that Chancery will always ratify an act when done, which upon a previous application would have been authorised. It is true that in the case of Tyson and Mickle, the parties in- terested consented to the sale, but one of those parties, and one largely interested, was a minor, and, therefore, incompetent to consent. Adopting the principle of the Court of Appeals, that an act when done will be ratified, which the court, if ap- plied to beforehand, would have authorised, I am of opinion that the objection to the act of the trustee in this case, founded upon the form of the sale, cannot prevail ; as it seems to me, that upon an application, setting out all that has taken place, prior to the sale, to Mr. Markell, the trustee would have been authorised to accept his offer. Whilst the Chancellor would consider it his duty to vacate sales made by officers of his appointment, under the influence of error, fraud, misrepresentation, or injurious mistake ; he, 52 HIGH COURT OF CHANCERY. nevertheless, thinks, that it would be a fatal policy, to be astute in finding out objections to them. The impression of the court is, that they are entitled to the benefit of every fair and reasonable intendraent, and that a bona fide purchaser is not to lose the rights which he supposed he was acquiring when dealing with its agent, upon objections upon the model regulations of the sale, the non-observance of which is not \shown to have been injurious. Marshall's Lessee vs. Green- field, 8 G. $ /., 349. +. The seventh objection to the sale, is, because the trustee's / bond is not upon stamped paper, as required by the Act of S 1845, chapter, 193. The law went into effect on the 1st of May, 1846, and this bond though dated on the 29th of April, 1846, was not filed and approved by the Chancellor, until the 7th of July following. The argument is, that the bond was of no effect until filed and approved ; those acts constituting its delivery and accept- ance. By adverting to the terms of the decree, it will be found, that the trustee is to proceed to make sale of the property, upon giving bond in a certain penalty, and with sureties to be approved by the Chancellor, conditioned for the faithful per- formance of the trust reposed in him by the decree. This bond has been approved by the Chancellor, and it seems to me, it would be of dangerous consequence to say, that although thus approved, the purchaser shall not get the benefit of his purchase, ithe bond for any reason is defective. Few persons, I presume, would be disposed to bid at trus- tees' sales, if such a doctrine is to obtain. The Chancellor for this reason, does not deem it necessary to express an opinion upon the point discussed by the counsel ; but upon an applica- tion to require the trustee to execute another bond, he will be prepared to do so. The remaining exceptions, relating to the subsequently in- creased value of the land from the contemplated passage of the v^ Baltimore and Ohio rail road through or near it, was passed over by the Chancellor, as having been sufficiently disposed of by WHITE VS. WHITE. 53 his previous remarks. The objections were overruled ; the parties being directed to pay their own costs respectively. [The order in this case was affirmed on appeal.] ELIZABETH ANN WHITE ET AL. vs. . JULY TERM, 1847 JOSEPH WHITE AND JOHN C. WHITE.. [JURISDICTION REMEDY AT LAW LIMITATIONS NOTICE OF TRUST.] THE allegations of the bill are, that forty-six shares of the stock of the Man- hattan Company, of New York, were transferred to the defendant, Joseph White, in trust for the complainants, prior to the year 1839 ; that in January, 1840, said Joseph, by letter of attorney, empowered Campbell P. White to sell and transfer said shares to the defendant, John C. White, which, in January and February of the same year, was accordingly done. That said defendant knew the stock was trust property, but had made no returns of the proceeds to complainants, though payment was duly demanded of him. The bill then prays that John C. White may account for the sales of said stock and pay over the proceeds thereof, and for further relief. Upon the question of ju- risdiction, it was HELD That whether John C. White, the defendant, is himself to be regarded as the purchaser of this stock, or as the agent to sell and account for the same to the plaintiffs, the remedy at law is, in either aspect, complete and ample without the aid of a court of equity. The transactions out of which the claim arose occurring early in 1840, and the bill not having been filed until January, 1846, the statute of limitations was held to be a flat bar to the plaintiffs' right to recover. If the relation of trustee and cestui que trust once existed between these parties, that relation terminated as soon as the stock was sold, and the obligation to pay over the proceeds supervened, and then the right of action accrued and limitations began to run. The statute of limitations does not apply to a purely technical trust, of which a court of chancery has exclusive jurisdiction. The answer of John C. White denied notice of the trust, and it appearing, by proof, that he acted merely as the agent of his father, Campbell C. White, in the sale of this stock, and had paid over the proceeds to his principal, in which payment the complainants_ had acquiesced for more than five years, upon the merits of the case it was HELD That under these circumstances it would be very hard and setting a dangerous precedent, to hold him liable to pay it a second time. 5* 54 HIGH COURT OF CHANCERY. [The facts of this case will appear from the Chancellor's opinion :] THE CHANCELLOR: To the relief prayed by this bill, two objections are taken in the answer of the defendant, John C. White, against whom also a recovery is sought, which seem to the Chancellor insuperable. These objections are independent of the merits and will be first considered. The bill alleges, that prior to the year 1839, forty-six shares of the capital stock of the Manhattan Company of New York, were transferred to the defendant, Joseph White, in trust for the benefit of the complainants that on or about the 28th of January, 1840, the said Joseph executed a letter of attorney to Campbell P. White, of New York, empowering him to sell and transfer to the defendant, John C. White, also of New York, the said shares, and that in the months of January and February of the same year, the shares were transferred accordingly to said defendant, and that said defendant knew that the stock was trust property that said defendant accepted and received said shares at the market value, which at the time was about $80 per share, but that he has made no returns of the proceeds derived from the sales of said stock, nor the interest accruing thereon, though payment has been duly demanded of him, and that he now owes and is indebted to the complainant for the whole amount of the sales, principal and interest. The bill then prays that the defendant, John C. White, may account for the sales of said stock, and pay over the proceeds of the same, and for further relief. Joseph White, who was subsequently released by the com- plainants from all responsibility, by his answer admitted the truth of the allegations of the bill, and submitted to such decree as the court might think right. The other defendant, John C. White, before meeting and denying upon their merits the bill of the complainants to a de- cree against him, relies by his answer first, upon the want of jurisdiction of a court of equity, over the case made by the WHITE VS. WHITE. 55 bill, which, he insists, presents a case cognizable at law and secondly, upon the act of limitations as a bar to the relief ask- ed for. The Chancellor is of opinion, that either of these defences is fatal to the complainant's right to recover in this court. There is not certainly upon the face of the bill a single aver- ment to show that the complainants would encounter any ob- stacle in a proceeding in a court of law to recover the proceeds of the sales of this stock. Whether the defendant John C. White is himself to be regarded as the purchaser, or as the agent to sell and account to the plaintiffs for the proceeds of the sales, (and there is some ambiguity in the allegations of the bill upon this point,) still the legal remedy, in either aspect, is com- plete and ample, without the aid of a court of equity. The bill presents the case of a s'ingle transaction of the sale of stock, the particulars of which seem to have been known to the complainants, or of which the proof was entirely within their reach, without having recourse to the conscience of the defend- ant. As between him and them there was unquestionably no such trust as would bring the case within the exclusive juris- diction of a court of equity. The charge, is, not that this stock was held by the defendant John C. White in trust for these complainants, but that it was so held by Joseph White, and that the transfer and sale was made in virtue of an authori- ty derived from him. Why then, if John C. White is liable at all, could not a re- covery be had against him in a court of law ? There is no com- plication in the accounts which requires the aid of a court of chancery to unravel no discovery from the defendant to estab- lish the facts upon which the recovery must be founded ; nor does the bill profess to place the jurisdiction of the court upon that footing. Nor is there any thing in the relation of these parties, as trustee and cestui que trust, which places the trans- actions between them under the exclusive control of this court. The cases oiAdair vs. Winchester, 7 G. # /., 114, and Oliver vs. Palmer Sf Hamilton, 11 G. if /., 426, are supposed to be conclusive authorities against the complainant's right to pro- ceed in this court upon this bill. 56 HIGH COURT OF CHANCERY. I am of the opinion that the statute of limitations, relied upon by this defendant, interposes a flat bar to the plaintiff's right to recover against him. The transaction out of which the claim arises, took place in the year 1840, and the proof shows, I think, very clearly, that the complainants, or some of them, had notice thereof soon thereafter, and yet the bill was not filed until January, 1846. Now, if this defendant, John C. White, could, in any view of the case, be looked upon as a trustee to make sale of this stock, and that the relation of trustee and cestui que trust did at one time exist between him and these complainants, upon which hypothesis alone, as it seems to me, the jurisdiction of this court could be maintained ; still, this relation terminated as soon as the stock was sold, and the obligation to pay over the proceeds supervened. From that time it ceased to be a con- tinuing subsisting trust, and then, whether the remedy was at law or in equity, the right of action accrued, and limitations began to run. Green vs. Johnson and wife, 3 G. fy J., 389. If, to be sure, the relation between these parties constituted a purely technical trust, of which a court of chancery had ex- clusive jurisdiction, limitations could not be successfully relied upon, because, in that case, there being no legal remedy, the statute could not be applied by analogy, and being in terms not applicable to courts of equity, could not be taken advantage of. But undoubtedly, as it appears to me, whatever may have been the character of the relation between them at one time, it terminated when the stock was sold, and the obligation to pay over the proceeds came into existence. Jlngell on Lim., 349; Kane vs. Bloodgood, 7 Johns. Chan. Rep., 90. Indeed, the complainants themselves allege and show a ter- mination of the trust, when they charge, as they do in their bill, the defendant's indebtedness to them in a large sum of money, being, as they aver, the proceeds of the stock, and the payment of which by the defendant to them they also aver had been duly demanded. The Chancellor does not think that the circumstance of this defendant being a non-resident, deprives him of the benefit of the WHITE VS. WHITE. 57 statute ; since it is clearly shown that the defendant was in Balti- more more than three years before the present bill was filed that his being there must have been, and was in point of fact, known to the complainants, and that they had full and ample oppor- tunity, if they had thought fit, to proceed against him then. Hy singer vs. Baltzell, 3 G. 4" /., 158. But apart from these objections, I cannot bring my mind to the conclusion, that the complainants have any claim against this defendant, John C. White, upon the merits. The evidence, I think, clearly shows that he is not only en- tirely blameless in this transaction, but that he has been guilty of no laches which could, upon any just principle, render him responsible, for the proceeds of this stock to these parties. There is nothing, as it appears to me, in the evidence, which brings home to him a knowledge that these shares of stock stood in the name of Joseph White in trust for the complainants, nor that he or they had any interest therein ; and in his answer, being in this particular directly responsive to the bill, which al- leges notice of the trust, any such trust is expressly denied. It is stated in the answer of this defendant, that in the months of January and February, 1840, a large amount of the shares of the stock of this banking company were sold by him, as a bro- ker, for his father, Campbell P. White, and his uncle, Robert White, both of New York that he knew them, and them only, in these transactions, and accounted with and paid them the money as his principals ; and the proof of Campbell P. White, under the New York commission, is in precise accordance with this statement in the answer. There can be no sort of doubt, therefore, that this defendant, John C. White, has paid to the person by whom he was em- ployed, the proceeds of the sales of this stock ; and it also ap- pears from the letters of Joseph White, the father of the com- plainants, by whom the stock was held in trust, addressed to the said Campbell P. White, that he knew that the money had been received by the latter. The attempt, then, is, five years after the date of the transaction, to compel this defendant to pay the money a second time. That he has already paid it is 58 HIGH COURT OF CHANCERY. undeniable, and it is equally undeniable, that he paid it to the person by whom he was employed to sell the stock, without notice of the trust, or of any circumstance which could awaken a suspicion that the person to whom he made the payment was not entitled to receive the money ; for the Chancellor thinks the effort to fix such knowledge upon him has been unsuccess- ful. To hold him liable, under such a state of facts, to see to the application of the money, would seem to be an extremely hard measure of justice so hard, indeed, that I should be un- willing to adopt it without the most conclusive authority. In addition to the evidence furnished by the letters of Jo- seph White to Campbell P. White, which clearly show that he knew of the receipt, by the latter, of the money for which the stock sold, the indorsement made by Joseph White on the ac- count, as early as April, 1841, proves that he must have known that the money was placed to his credit on the books of John C. White & Sons, of which firm he was a partner. Under all the circumstances of this case, and especially when we consider the long acquiescence of these parties in the pay- ment made by the defendant, John C. White to Campbell P. White, it would be very hard, and setting a dangerous prece- dent, to hold him liable to pay it a second time. The observations made by Chancellor Kent in Tripler vs. Olcott, 3 Johns. Ch. Rep., 473, ar? very applicable to the present case, and strongly against the plaintiff's right to a decree. It is believed to be true, as a general rule, that a sub-agent is accountable only to the superior agent who has employed him, and not to the principal, and that an agent employed by a trustee accounts with him, and not to the cestui que trust. Story on Agency, sec. 217. And I can see nothing in this case which should make the general rule inapplicable to it. For the reasons which have been given, it is the opinion of the court that the complainants are not entitled to relief, and a decree will be passed dismissing the bill. [No appeal was taken from this decree.] SULLIVAN VS. TUCK. 59 JOHN SULLIVAN ET AL.^ vs. > JULY TERM, 1847. TUCK, EX R OF BOWIE. 3 [SPECIFIC PERFORMANCE LIEN ON GROWING CROPS REMEDY AT LAW DAM- AGES.] THE defendant's testator entered into a contract with the complainants by which they were to become his agents for the sale of his crops, advance him money and accept his drafts, for the payment of which he pledged his crops on hand, and the growing crops of the year 1847. Upon the faith of this agree- ment, complainants made large advances to testator, and at the time of bis death, which occured in January, 1848, he was largely indebted to them. Upon a bill, by complainants, claiming a lien on the corn and tobacco in hand, and on the crop of wheat sown in the fall of 1847, and to enforce the specific performance of this contract, it was HELD That this was a positive agreement on the part of the testator to send to com- plainants, to cover their advances to him, his crops of wheat, tobacco and corn, which would be marketable in the year 1847 ; and also, the wheat crop seeded in that year. And that this court would enforce its specific ex- ecution. That the Ken founded on the relation of the parties, as factor and principal, would not apply to this case ; that lien being merely the right to retain a thing, of which the party retaining must have either the actual or constructive posses- sion. The plaintiffs' title to relief, therefore, depends upon the contract es- tablished by the letters of the testator, and the facts appearing by the plead- ings. Courts of equity do not enforce the specific performance oC contracts relating to personal property, with the same facility and universality as those relating to real estate : because, in the former case, courts of law usually afford a complete remedy. But whenever a violation of the contract cannot be correctly estimated in damages, or wherever, from the nature of the contract, a specific performance is indispensable to justice, a court of equity will not be deterred from inter- fering, because personal property is the subject of the agreement. The expenses in getting the crops ready for market should be paid out of the proceeds of sale. [This bill was filed for the specific performance of a contract entered into by the defendant's testator, Robert W. Bowie, of Prince George's county, with the complainants, trading under the firm of John Sullivan and Sons, in Baltimore. The com- plainants agreed to become the agents of the deceased for the sale of his crops ; to advance money, and to accept his drafts, 60 HIGH COURT OF CHANCERY. to secure the payment of which the deceased pledged his crops then on hand, and the growing crops of the year 1847, and died in January, 1848. Large advances were made by the complain- ants on the faith of this arrangement, to cover which, the pro- duce received by them at the time of his death was greatly in- sufficient, leaving due $2782. The defendant took out letters testamentary, and possessed himself of the corn and tobacco crops of the year 1847, which were still on; hand. The com- plainants contended, that, by virtue of this contract, they were entitled to a lien on the crops then in the hands of the defend- ant, as well as on the wheat crop sown in the fall of the year 1847. The evidence of the contract consisted principally of letters written by the deceased to the complainants, in the latter part of the year 1847, wherein he pledged himself to indemnify the latter for their advances and liabilities made and incurred for him, by forwarding to them his growing crops of that year, which they were to sell, and retain out of the proceeds sufficient to satisfy the debt due to them. The whole claim was resisted on the ground that the complainants were in no better condition as to the crops than other creditors of the deceased, and it was insisted that in no event could it include the wheat crop seeded in the year 1847, as the only crops, the growth of that year which had come into the defendant's hands, were the corn and tobacco. It was also urged, that the lien of the complainants, if they had any, should be subject to the expenses incurred in getting the crops to market. It was stated, however, in the course of the argument by the solicitors, that on the principles of law applicable to the case being settled by the court, there would be no difficulty in adjusting the terras of the decree by agreement. The Chancellor thought, that the facts of the case showed a positive engagement on the part of the deceased to send to the complainants, for the purpose of covering their advances to him his crops of wheat, tobacco and corn, which would be market- able in the year 1847, as well as the wheat crop seeded in that year. And as to the question whether the complainants had a standing in court to enforce a specific execution of the agree- ment, he said :] SULLIVAN VS. TUCK. 61 THE CHANCELLOR : If the case is to be governed by the principles applicable to the relation of factor and principal, I am satisfied the complain- ants cannot succeed, as the lien resulting by operation of la\v, from that relation, cannot be extended to property situated as this was, at the period of the death of Mr. Bowie. If at that time the property had been in the hands of these parties, I incline to think, that, independently of contract, and looking alone to the rights resulting from the usages of trade, the com- plainants would have been entitled to retain it, not only for the charges and advances connected with the disposition of this identical property, but for the general balance due the complain- ants, growing out of other dealings of the like nature. Story on Agency , sec. 354. But as this property was not, either actually or constructively, in possession of these complainants, when the testator died, the lien founded upon the relation of the parties as factor and prin- cipal, cannot be maintained ; that lien being merely a right to retain a thing, of which the party retaining, must of course be in possession, it being impossible to predicate the right to re- tain that of which the party has not the actual or constructive possession. Story, sec. 361. The plaintiffs' title to relief, then, must depend, not upon the mere operation of law, independently of contract, but upon the contract of the parties, as shown by the letters, and the facts appearing by the pleadings. It is very evident to me, from a perusal of these, that Mr. Bowie did not ask or desire, nor did the complainants intend to make the advances in cash, and accept his drafts upon his general credit on the contrary, it is perfectly manifest, that all the transactions between them, were founded upon the ex- press promise on the part of Mr. Bowie, to send them his pro- duce, then in his hands, or growing, or to become available in 1848. There is nothing in his letters from which it is possible to come to a different conclusion, and I am therefore entirely satisfied, if I refuse the relief asked by this bill, I defeat the clear design and intention of the contracting parties. 6 62 HIGH COURT OF CHANCERY. It is to be borne in mind, also, that this is not a contest be- tween these complainants, and the creditors of Mr. Bowie, but between them and his personal representative, and looking to the answers, it is reasonable to conclude, that whatever the re- sult of this cause may be, the creditors cannot be prejudiced, the answer expressing the belief, that the assets real and per- sonal will be sufficient to pay the claims of all the creditors at all events, as it does not appear that the estate of Bowie is insufficient to pay his debts, the rights of his creditors are not supposed to be involved. Woods et al. vs. Fulton and Starck, 4 H. fy J., 329. The question then is, will not the court as between these par- ties, specifically execute this contract? In the case of Alexander vs. Ghiselin, decided by the Court of Appeals in December last, it was said, that "it would be novel doctrine in Maryland, to assert that the Chancery Court cannot specifically execute a contract for a mortgage or other equitable lien, against creditors" and surely if it would be novel and un- tenable so to maintain as against creditors, how much more singular and untenable would it be to assert, that the court can- not do the same thing, as against the party himself, who made the contract! Even where such contracts rest in parol, cases are not want- ing in which the courts, with regard to personal property, have decreed their execution. A number of such cases are referred to in the opinion delivered by the Court of Appeals in the case already mentioned. The case of McMeche.n vs. Maggs, 4 H . fy J., 432, shows the great extent to which the courts will go, to enforce these parol agreements for mortgages of personal property, even as against subsequent encumbrancers, and this case is cited with appro- bation in Alexander vs. Ghiselin. But it is said, that here is no contract for a mortgage, or other equitable lien, on this prop- erty ; it being, as insisted by the defendant's counsel, no more than the usual engagement between principal and factor, for advances by the latter on property to be consigned him for sale by the former. SULLIVAN VS. TUCK. 63 It is true, the testator did not say, if you will pay me or to my order, certain sums of money, I will give you a mortgage on my produce ; but he did say, if you will do so, I will send you the produce for sale for your security and reimbursement, and the advances were made and the drafts accepted, upon the faith of that promise and these declarations and promises were made in writing, so as to relieve the case from the operation of the statute of frauds, even if the statute was relied upon, which it is not. I am aware of no principle which denies to this court the power to enforce specifically this contract. That contracts respecting personal property are not specifi- cally enforced by courts of equity, with the same facility and universality as contracts in relation to real estate, is true, but this is not on account of their personal nature, but because the courts of law in such cases, are generally competent to afford a complete remedy. 2 Story, Equity, sec. 717. But when the circumstances of the case are such that com- pensation in damages, will not give the party a complete and satisfactory remedy, then, though the contract relates to personal estate, a court of equity will interpose, and grant relief. Ibid sec. 718. In this case, I am of opinion it would be impossible, or at all events extremely difficult, for a court of law to give these complainants adequate damages, that is, to determine and meas- ure the amount of damages they have sustained, or may sus- tain, by the omission to send them the produce in question, in fulfilment of the contract. If the personal estate of Mr. Bowie is insolvent, as seems .to be conceded, then the plaintiffs could only recover in their action at law their proportion of the assets, and when this should be done, they would have to go into equity to be paid the balance, out of the real estate. But this is not the only difficulty to the recovery of a perfect pecuniary compensation at law for the breach of this contract, and as appears by the cases, unless this can be done, courts of equity interfere as readily when the contract affects personal as real estate. Story's Equity, sec. 717 64 HIGH COURT OF CHANCERY. If in this case the plaintiffs should bring their action at law, for money lent and advanced or paid, laid out and expended, for the use of the defendant's testator, they would recover the amount which, upon the evidence, they could show they had so lent and advanced or expended. That would be the measure of damages. But if the action was brought upon the special contract, to send the produce of defendant's testator to the plaintiffs for sale, as his factors, to secure and reimburse them for advances made in consideration of his promise to do so, the measure of damages for the failure to send would be the amount which the property would have commanded in the market, at the time stipulated in the contract. Now this would have been an inquiry attended with some difficulty, especially as the contract does not fix the precise period, when the crops were to have been sent forward. The language of the letter of the eighth of. November, 1847, is, "my crops to go into your hands in the spring, and during the next year." The value of the crops would of course have depended upon their quantity and quality which must have been ascer- tained by evidence not easily accessible to the parties, and then the amount for which they would have sold, must have been determined by the market price, at the time fixed for their de- livery, and as no definite time was fixed for that purpose, it is not very clearly seen, how a proper standard for measuring the damages, could have been arrived at. Besides, in an action upon the special contract, the plaintiffs would have been entitled to recover by way of damages for the commissions which they would have earned upon the sale of the property, thus complicating, by an additional item, the ele- ments out of which the verdict of the jury must have been con- stituted. Wherever a violation of the contract cannot be correctly es- timated in damages, and the calculation is to proceed upon conjecture, or wherever from the nature of the contract, a speci- fic performance is indispensable to justice, this court will not be deterred from interfering, because personal property is the subject of the agreement. Jldderlyvs. Dixon, 1 Sim. fy Stu., 607 ; Buxton vs. Lister, 3 Jltk. 383. SULLIVAN VS. TUCK. 65 And as from a careful consideration of this contract it ap- pears to me, a court of law would not be able to furnish a com- plete and satisfactory remedy, I think a specific execution of the agreement should be decreed. It is stated in the answer of the defendant, that expenses have necessarily been incurred by him in getting the crops ready for market, and he insists that if the complainants shall be ad- judged entitled to the relief they seek, those expenses should be paid out of the proceeds of the sales. My first impression was against this position, but upon re- flection it seems to me to be well taken. It was his duty to complete and take care of the crop, for which purpose he might employ the necessary agents Lee vs. Lee and Welch 6 G. # /., 316 and I can see no good reason why the expenses in- curred by the executor in the discharge of this necessary duty, shall not be deducted from the proceeds of the crops, when sold, like the freight which must be paid upon the transportation to market. In case the growing crops were the only assets in the hands of an executor, which is a state of things which might happen, it is obvious the expenses in question must be paid out of them, or not paid at all. I think, therefore, the expenses incurred by the defendant, as the executor of Mr. Bowie in getting these crops ready for mar- ket, should be paid out of the proceeds of the sales. There is a small item in the complainants' account, for com- missions on advances, which as it formed no part of the con- sideration upon which the promise of the deceased was made, cannot be regarded as a special charge upon the crops. In respect of that item, if established, the complainants can only be considered as general creditors, upon a footing with others. A decree was passed by agreement in accordance with the foregoing opinion, and allowing the complainants their costs to be paid out of the general assets of the estate of the testator. [No appeal was taken from this decree.] 6* 66 HIGH COURT OF CHANCERY. J JOHN F. WILSON vs. ) SEPTEMBER TERM, 1847. MATTHEW HARDESTY. [USURY CONSTITUTIONALITY OF THE ACT OF 1845, CH. 352.] WHERE a party goes into a court ofequity to ask relief against an usurious mort- gage or contract, he must do equity, by paying, or offering to pay, the prin- cipal sum, with legal interest. When the legislature transcends its authority, the courts of justice in the dis- charge of their duties, are bound to pronounce its acts void : but this high power of the judiciary should be exercised with great caution, and only when the act of the legislature is manifestly beyond the pale of its authority. Retrospective laws and laws divesting vested rights, unless ex post facto, or im- pairing the obligation of contracts, do not fall within the provision of the constitution of the United States, however repugnant they may be to the prin- ciples of sound legislation. The act of 1845, ch. 352, as affecting pre-existing contracts, tainted with usury, is neither prohibited by the constitution or bill of rights of this State ; nor does it come within the provision contained in the constitution of the United States, prohibiting the States from passing ex post/ado laws, and laws im- pairing the obligation of contracts. [The object of the bill in this case was the sale of certain premises which had been mortgaged to the complainant by the defendant, to secure to the former the payment of $500 00, with interest from the 15th October, 1840. The defendant pleaded usury, stating that the sum actually advanced to him on the day of the execution of the mortgage was only $470 00, and prayed "judgment, if he, the defendant, ought to be charged with the debt," &c. The complainant confessed the facts of the plea, and consented to a decree for the sum actually due. The Chan- cellor deemed this a waiver of objection to the sufficiency of the plea, under the act of 1845, chapter 352, which limits the de- fence to the excessive usury, and makes it the duty of the court, after ascertaining the amount fairly due for principal and inter- est, to decree accordingly. Having stated the case, he deliv- ered his opinion as follows:] WILSON VS. HARDESTY. 67 THE CHANCELLOR : The question, and the only question in this case, relates to the validity of the act of 1845, as a constitutional exercise of legis- lative power, so far as concerns pre-existing contracts and en- gagements tainted with usury. The defendant insists, that inasmuch as the act of 1704 de- clares that all bonds, contracts and assurances whatsoever, made after the time therein limited, whereupon, or whereby, more than the rate of interest fixed by that act is reserved, shall be utterly void, it follows that the legislative authority is insuffi- cient to give such contracts validity to any extent whatever. The argument is, that the present mortgage is an absolute nullity, and any attempt on the part of the legislature to give it efficacy to any extent, or to abridge the right of the defendant to defend himself against it, is equivalent to the legislative cre- ation of a contract, out of elements having no legal existence. But, notwithstanding the language of the act of 1704 is so strong, it is very certain, that contracts within its provisions are not, under all circumstances, treated as merely void for it is settled, that if a party goes into a court of equity, asking relief against an usurious mortgage or contract, he must do equity by paying, or offering to pay, the principal sum and legal interest. Trumbo vs. Blizzard, 5 Gill fy Johnson, 18. Nay, he is not even entitled to a discovery as to the usury, unless he offers to pay the principal debt, and legal interest. Jordan vs. Trumbo, 6 G. Sf /., 103. Courts of equity, therefore, have undertaken, upon a principle which seems to have met the approbation of the community, for it is one long since established, to give a reasonable sanction to contracts affected by usury, by refusing to relieve a party against them, unless he would himself do that, which the moral obligation arising from the receipt and appro- priation to his own use of the money of another required him to do. There can be no doubt, that if the legislative department of the government transcends its authority, the courts of justice are bound, in discharge of the functions properly appertaining to them, to pronounce its acts void. Crane vs. Meginnis, 1 Gill $ Johns., 463. 68 HIGH COURT OF CHANCERY. But it is equally clear that this high exercise of power on the part of the judiciary should be exercised with great caution, and only when the act of the legislature is manifestly beyond the pale of its authority, for that department is the great depositary of the power of the government. The Chancellor is unable to perceive upon what principle this law is to be condemned. There is certainly no provision in the constitution and bill of rights of this state, which prohibits the passage of such a law, and it is impossible, it is thought, to bring it under the restraining authority of the constitution of the United States, which does not prohibit the states from passing retrospective laws generally, but only ex post facto laws, and laws impairing the obligation of contracts. Charles River Bridge vs. Warren Bridge etal., 14 Peters, 339. It is clearly settled by the high authority of th*e Supreme Court of the United States, that retrospective laws, and laws divesting vested rights, unless ex post facto, or impairing the ob- ligation of contracts, do not fall within the provision in the con- stitution of the United States, however repugnant they may be to the principle of sound legislation. Colder vs. Bull, 3 Dallas, 386 ; Slatterlee vs. Matthewson, 2 Peters, 413 ; Watson vs. Mercer, 8 Peters, 88. The law under consideration, is certainly not an ex post facto law, as laws of that character relate only to criminal proceed- ings ; nor is it a law impairing the obligation of contracts, for so far from impairing the obligation of the contract, it gives it a force and efficacy which it did not possess before. That laws of this description are not prohibited by the constitution of the United States, was most clearly decided in the case of Watson et al. vs. Mercer, 8 Peters, 89, which affirmed the validity of a law of Pennsylvania, curing the defective acknowledgment of a deed made by a feme covert, passed after a recovery by the heirs of the wife, upon the ground of the defect, healed by the subsequent act. But it is not only in courts of equity that the force of this moral obligation, which has the effect when it can be applied, of moderating the rigor of the laws against usury, has been felt, WILSON VS. HARDESTY. 69 for even in the courts of law, it has been decided that an action of trover cannot be maintained for goods mortgaged to secure an usurious debt, unless the plaintiff has tendered the amount actually loaned. Lucas vs. Latour, 6 Har. fy Johns., 100. There can be no doubt, then, that if the present defendant was seeking, either in a court of law or equity for relief against this mortgage, he could only succeed by paying or offering to pay the amount he actually received from his creditor, together with the legal interest thereon, and consequently the whole effect of the act of assembly is to apply the same equitable prin- ciple to the relation which the parties bear to each other in this case. If the mortgagor was the plaintiff, and the mortgagee defendant, either at law or in equity, relief would only be grant- ed upon the equitable principle, of paying the sum borrowed with legal interest. Now, has not the legislature the constitu- tional power to say that the same rule of honesty shall be ob- served, when the position of the parties is reversed, for to that extent, and no further does the act go. In this view of the case, it would ' seem to be no more than the mere exercise of the law making power, over the subject of remedies, their right to regulate, which cannot be disputed. Upon the whole, my opinion is, that the act is not unconsti- tutional, and, therefore, I shall pass a decree for the payment of the sum admitted to be actually and fairly due ; or for a sale of the mortgaged property, in case such payment is not made in a reasonable time. [No appeal was taken from this decree, but in a subsequent case, the Court of Appeals affirmed the constitutionality of the act of 1845, ch. 352, with reference to pre-existing usurious contracts. ] 70 HIGH COURT OF CHANCERY BENJAMIN S. CLARK ET AL. vs. ^> SEPTEMBER TERM, 1847. CHARLES G. RIDGELY ET AL. .1 [RECEIVER.] A RECEIVER, in strictness, should not be appointed before the coming in of the answers ; and, although this rule has been broken through, yet the grounds which will induce the court to disregard it, must be very strong and special. A receiver will not be appointed unless it appears that such a measure is re- quired to preserve the property from danger of loss. When an application by bill or petition is made to the court to appoint a re- ceiver, a sufficient foundation must be laid by stating the fact, which will au- thorize the interference of the court, in this form. When a bill sets forth the complainants' title, and stated that a party had wrongfully taken possession of the property, but did not state that such party was insolvent or unable to account for the same, or that the rents and profits were in danger of being lost, the court refused to appoint a receiver. [The bill in this case stated that Sater P. Walker, by deed of the 29th of October, 1830, conveyed a certain lot of ground in the city of Baltimore to John W. Osgood, (believed to be a non-resident,) in trust for Catharine Ann Walker, wife of the grantor, for her life, with remainder to the children of the grantor, in the deed named, equally, to receive the rents and profits to their separate use ; and after their deaths, to the children of each respectively, in fee simple, and for the want of such children, to the right heirs of the grantor. The bill further stated, that the wife of the said Sater P. Walker died in the year eighteen hundred and forty- six, whereby the said children became entitled, under the deed, to receive the rents and profits of said property ; that they were all married ; that the grantor, notwithstanding the conveyance aforesaid, has taken possession of the property since the death of his wife, and appropriates the profits to his own use ; and that it would be to the advantage of all parties to have the same sold, and the proceeds invested for their benefit. The bill then prayed for the appointment of a receiver to take charge of said property for the benefit of the parties entitled ; and for a sale. CLARK VS. RIDGELY. 71 The case was referred to the Chancellor, before the answers of the defendants were filed, who said :] THE CHANCELLOR : The bill in this case prays for the appointment of a receiver, and the application is made to the court prior to the coming in of the answers, and also prior to the time when the defendants by the rules of the court can be considered as in default for not answering. In strictness, a receiver should not be appointed until after the answer, and although the rule has been broken through, that such an appointment will not, under any circum- stances, be n\ade before answer ; the grounds which will induce the court to disregard the old rule, must be very strong and special. It must appear, that the claimant has a title to the property, and the court must be satisfied by affidavit, that a receiver is necessary to preserve the property from loss. 2, Daniels' Ch. Prac., 1974, and note ; Bloodgood vs. Clark, 4 Paige, 574. Indeed it is believed, the authority and duty of the court to appoint or not appoint a receiver, depends upon the question whether the property is or is not in danger in the hands of the party who may at the time be in possession. As was said by the court in the case of the Orphans Asylum Society vs. M' Car- ter et al. in 1 Hopkins, 422, "a receiver is proper if the fund is in danger, and this principle reconciles the cases found in the books. There is no case in which the court appoints a re- ceiver merely because the measure can do no harm." In conformity with what seems to me the established rule upon this subject, that a receiver will not be appointed unless it appears that such a measure is required to preserve the pro- perty from danger of loss, the late Chancellor remarked in Hannah K. Chase's case, 1 Bland, 213, "but unless she [the complainant] has also shown that the rents and profits are in imminent danger, a receiver cannot be appointed." And in the case of Lloyd vs. Passingham, 16, Vesey, 59 70, Lord Eldon, speaking of the reluctance with which the court inter- feres by appointing a receiver, said, "the court must not only 72 HIGH COURT OF CHANCERY. be satisfied of the existence of the fraud, but it must be morally sure, that upon the hearing of the cause, the party would, upon the circumstances, be turned out of possession ; and not only that, but it must see some danger to the intermediate rents and profits." It seems to me, therefore, indispensably necessary, that when an application is addressed to the court, to appoint a receiver, either by the bill, or by petition subsequently filed, that a suffi- cient foundation must be laid, by stating the facts which will authorize the interference of the court in this form. Tomlinson vs. Ward, 2 Cown, 396. The bill in this case, after stating the title of the complain- ants, and showing their interest in the property, which it may be conceded would be sufficient to authorize the appointment of a receiver, if the property were alleged to be in danger, pro- ceeds to set forth the grounds upon which the application rests, which are, that after the death of Catharine Ann Walker, the tenant for life, the said Sater P. Walker wrongfully .took pos- session of the said property, and ever since has appropriated the rents and profits thereof to his own private purposes, and has always refused, though urgently requested so to do, to pay over the rents according to the express intention of the said deed of trust, so that the chief and only object of said deed is entirely defeated and annulled. But the bill does not state that Walker, the party alleged to be in the wrongful possession of the property and in the enjoyments of the rents and profits, is insolvent, or unable to account for the same, or that without the appointment of a receiver, these rents and profits are in danger of being lost to those who may ultimately appear to be entitled to them ; and the absence of any such averment, in my opinion, is, upon the principles which govern this court in applications like the present, fatal to the success of the appli- cation, which consequently cannot be allowed. [No appeal was taken from this order.] GLENN VS. BAKER. 73 JOHN GLENN, TRUSTEE OF BENJAMIN CHILDS vs. J- SEPTEMBER TERM, 1847. WILLIAM BAKER AND BEN- JAMIN CHILDS. [INSOLVENT LAWS UNDUE PREFERENCE RULES OF EVIDENCE.] To avoid a deed under the acts of 1812, ch. 77, and 1816, ch. 221, it is neces- sary to show, not only that an undue and improper preference was given by the debtor, but also, that this was done with a view or under an expectation of taking the benefit of the insolvent laws. Such intent may be established by facts and circumstances, as in other cases. The fact that a party, when he executed the deed, could not apply for the ben- efit of the insolvent laws, for want of the residence required, to bring him within their provisions, is a strong circumstance to show that such was not his view and expectation at that time. The facts of this case are distinguished from those of Dulaney vs. Hoffman, 7 Gill and Johns., 170. It is an established rule of evidence in this state, that the answer of one defend- ant, in chancery, is not evidence against the other defendants. The answer of one defendant, when responsive to the bill, is evidence against the plaintiff m favor of the other defendants. Where the rights of the insolvent are identically the same, whether the deci- sion passes one way or the other, he would be a competent witness for eith- er party. [In the year 1833, Benjamin Childs, one of the original de- fendants, (since deceased,) who had resided^in Pennsylvania, for several years, removed into this state, and engaged in mercantile business in Baltimore. On the fourth of December, of the same year, and but a few months afterwards, finding him- self in embarrassed circumstances, he executed to the defendant, Baker, a deed of all his estate of every description, intrust, in the first place to pay the necessary expenses of executing the trust and five per cent, commission on all moneys received by the trustee, in virtue thereof; secondly, to pay in full, certain specified debts ; thirdly, to pay in full, or rateably in case of a partial deficiency of the trust fund, such of the creditors of the grantor as should in a specified time assent to the terms of the deed, and release all demands against him to the day of its date ; fourthly, to the use of the other creditors of the grantor ; 7 74 HIGH COURT OF CHANCERY. and fifthly to pay the surplus to the grantor, his executors, ad- ministrators or assigns. At December session, 1833, Childs ap- plied to the legislature for a special act, which was passed on the 27th February, 1834, authorising the insolvent commissioners to extend to him the benefit of the insolvent laws without re- quiring the usual proof of a two years residence in the state. His application under this act was made on the 10th March fol- lowing, and the complainant was appointed his permanent trus- tee. Sundry creditors of Childs assented to the terms of the deed, and in consideration of the provisions made in it for the payment of their debts, released and discharge him therefrom. It appeared from the proof that the said Childs was insolvent when he removed into the state and continued so down to the time when the deed was executed, prior to which time there were suits and judgments against him. The bill was filed by the complainant to have this deed set aside as fraudulent under the insolvent laws, it having been made in contemplation of applying for their benefit. The answers denied that Childs at the time of executing said deed intended applying for the benefit of the insolvent laws, or that he knew himself to be insolvent, and the separate answer of Childs sta- ted his ignorance, at the time of executing the deed, of the pos- sibility of his obtaining a special act of the legislature in his favor. The Chancellor, after stating the facts of the case, referred to the cases of Heckley vs. Farmers and Merchants' Bank, 5 G.fyJ., 377, and Crawford^ Sellman vs. Taylor, 6 G. # J., 332, to show that the meaning of the acts of 1812, ch. 77, and 1816, ch. 221, making void any deed, &c., to a creditor, made by any person with a view, or under an expectation of being or becom- ing an insolvent debtor, and with an intent thereby to give an undue and improper preference to such creditor, was, that the party executing the deed, shall at the time, "intend to take the benefit of the insolvent laws." He said it was necessary to show, not only that an undue and improper preference was given by the debtor, but also that this was done "with a view or un- der an expectation of taking the benefit of the insolvent laws," GLENN VS. BAKER. 75 and as to whether this had been done in this case he said : "It is not contended in this case, nor could it be, that there is any direct evidence, that Childs at the date of the deed, intended to make application for the benefit of the insolvent laws ; but it is said, that such intention may be established by facts and circumstances as in other cases, and the case of Dulaney vs. Hoffman^ 7 Gill Sf Johns., 170, is referred to in support of the proposition. There can be no doubt that such is the rule, and the inquiry then is, whether the facts and circumstances of this case are sufficiently strong to make out the intent.] THE CHANCELLOR : Now, whether the answer of Childs is or is not evidence against the plaintiff, there can be no doubt that the burden of proof is upon him, and that he can get no decree invalidating this deed, unless he can make out by satisfactory evidence, that Childs, on the 4th December 1833, the date of its execution intended to take the benefit of the insolvent laws; that such was his view and expectation at that time. Now, the first difficulty in the way of the plaintiff, and it seems to me a formidable one, is, that Childs when he execu- ted the deed by which the alleged preference was given, could not apply for the benefit of the insolvent laws, for want of the residence required, to bring him within their provisions. He had then been living but a short time in Maryland, and many months must elapse, before the relief contemplated by those laws could be extended to him. How it may be asked can it be said that he executed the deed with a view, and under an expecta- tion of taking the benefit of laws, the provisions of which he was in no condition to enjoy, because of the indispensable pre- requisite of a two years residence which he did not possess, It is true, (though he denies it in his answer,) he may have known that special acts of insolvency were sometimes granted, and that laws were occasionally passed, dispensing with some of the conditions upon which the general system was admin- istered ; and he may have contemplated an application to the legislature to dispense in his case, with the qualification of resi- 76 HIGH COURT OF CHANCERY. dence ; but this seems to me to be a strained and unnatural view of the motives which probably influenced him at the time, and one which could not safely be adopted, unless supported by positive proof, or pregnant circumstances. This moreover is not the allegation of the bill, which avers, that the deed was made by Childs, "when he knew himself to be insolvent, and contemplated applying for the benefit of the insolvent laws of Maryland." Such an averment appears to me, to be inappli- cable to a party, to whom the law in its then state, did not ex- tend. Conceding that the evidence in this case does show, that Childs was in fact in insolvent circumstances at the date of the deed, and that he knew himself to be so, (though this is like- wise denied by his answer,) there is nevertheless not wanting evidence, independently of the fact, that he was not entitled at that time to apply for the benefit of the insolvent laws, going to repel the presumption that he contemplated such an alterna- tive. There is not such a resemblance between the circumstances of this case and the case of Dulaney vs. Hoffman, relied upon by the counsel for the plaintiff, as would make the judgment pronounced in the one, a safe precedent to be followed in the other. The points of difference between them, if not numer- ous, are strong and palpable and present abundant room for a different determination. In Dulaney vs. Hoffman, there ex- isted no impediment to an immediate application, by the parties making the obnoxious preference, for the benefit of the insol- vent laws, and in point of fact their application pressed rapidly upon the heels of the transfer. In this case, at the time of the transfer complained of, the party making it was in no condition to apply at all, nor did he make his application for more than three months afterwards. In that case there was no attempt whatever to compromise with or appease the unpreferred credi- tors, a circumstance of so much weight, as to be more than once mentioned by the Court of Appeals in delivering their opinion. In this, there was not only an effort to adjust their other debts, but several of the creditors who were not preferred, GLENN VS. BAKER. 77 actually released the petitioner upon the terms specified in the deed. In that case the debts due to the favored creditors had not then matured, and were at the time of the transfer wholly unprovided for ; whilst in this, the preferred parties held collat- erals to a larger nominal amount than the debts due them, and might therefore be regarded as preferred, even before the exe- cution of the deed. In that case, there was an actual transfer and delivery to one of the selected creditors, for the benefit of himself, and others similarly situated, of the entire stock in trade of the insolvents, with directions to sell the same, and to apply the money to the payment exclusively of those creditors, with- out any reference whatever to the rest ; although they knew, that many of them must necessarily go unsatisfied. Whilst in this, though a preference is given to one class, the deed pro- fesses to provide for others, and holds out inducements to them to accede to its provisions. These differences between these cases are, I think, suffi- ciently broad and distinct, to separate them by a well defined line, and to render a conclusion perfectly sound as to the one, altogether erroneous as to the other. The preceding observations have been made without refer- ence to the answer of Childs, and upon the hypothesis that his answer cannot be read as evidence against the complainant. If the answer can be read, then it is manifest, that the diffi- culties in the way of the plaintiff are greatly increased. The question, therefore, is, may it not be read by the defend- ant Baker, as evidence against the complainant ? It is the established rule in this state, that the answer of one defendant in chancery, is not evidence against the other de- fendants the Court of Appeals having so expressly decided, in opposition to the cases of Field vs. Holland, 6 Cranch, 8, and Osborn vs. The U. S. Bank, 9 Wheat., 738, in which under the circumstances of those cases, a different rule was settled. Jones vs. Hardesty, 10 Gill # Johns., 464. But that is not the question here. It is not an attempt to read the an- swer of a defendant against his co-defendant, but the proposi- tion is, may not one defendant read the answer of a co-defend- 7* 78 HIGH COU-RT OF CHANCERY. ant against the plaintiff, who, by his bill, called upon that de- fendant to respond upon oath to such questions as he thought fit to propound to him. It seems to be conceded, that there is no decision of our Court of Appeals which denies to a defend- ant this privilege, of reading the answer of his co-defendant against the plaintiff, the case of Gardiner fy Bowling vs. Har- dey fy Simms, 12 G. $ J., 380, expressly avoiding a decision of the question ; and it is thought, that the reasoning of the court in Jones vs. Hardesty, against the admissibility of the answer of one defendant as evidence against another, so far from leading to the conclusion, that it may not be read against the plaintiff, tends rather to establish the reverse. In the case of Crawford fy Sellman vs. Taylor, 6 G. fy J., 323, the answer of the insolvent, who was a defendant, was read, and consti- tutes a part of the proof relied upon by the court, as .showing that the transfer in that case was not made in contemplation of taking the benefit of the insolvent laws. The case of Mill vs. Gore, 20 Pick. Rep., 28, is express, that though the answer of one defendant is not evidence against the other, it is evidence against the plaintiff. And in the case of Field et al. vs. Holland et al., 6 Oranch 8, chief justice Marshall, in speaking for the court, decided, that the answer of a defendant when responsive to the bill, is evidence against the plaintiff in favor of the other defendants; and though the Court of Appeals of this state expressed their dissent from this decision, in so far as it affirmed that the answer of one defend- ant might be read against others claiming through him, no dis- sent was expressed from the proposition, that the answer would be evidence for a co-defendant against the plaintiff. The case of Morris vs. Nixon, 1 Howard, 119, 126, does not seem to me to decide the question one way or the other. In the case of Dunham vs. Gates et al., \ Hoffman, 185, the assistant vice chancellor does say, that the answer of one of the defend- ants could not be used on behalf of the others ; but as the bill was dismissed, notwithstanding this remark, there was no ne- cessity for a careful consideration of the question, and from the manner in which the observation was made, and the absence GLENN VS. BAKER. 79 of all authority in support of it, I am persuaded it was not very fully examined. The argument of the complainant's council, in opposition to the admissibility of this answer contends, that the defendant should not have the benefit of it as evidence, because he might have examined Childs as a witness a privilege which he in- sists the plaintiff had not, upon the ground, that his interest in the surplus of the estate, if any, in the hands of the trustee Glenn, disqualified him. Now, in the case of Hickley vs. The Farmers fy Merchants' Bank, 5 G. Of J., 377, the complainant, the trustee of an in- solvent debtor did examine the insolvent upon this very ques- tion, and the decision of the Court of Appeals turned entirely upon his evidence. But, independently of authority, is there, upon principle, any weight in the objection to the insolvent as a witness for his trustee, upon a bill filed by him, to set aside such a deed as the present? The objection is, that if the plaintiff succeeds, he, the witness, will be entitled to the sur- plus of the estate, after his debts are paid. But is not this the precise condition of things under the impeached deed to the defendant, Baker ? Does not that deed say, that after the pay- ment of debts, the surplus, if any, shall be paid over to the grantor, his executors, administrators or assigns, and is there not, therefore, an exact equipoise, rendering it perfectly indif- ferent to the insolvent, in point of interest, whether the decision passes one way or the other. This is not like the case of an action brought by the trustee of an insolvent debtor, against one of his debtors, in which the insolvent would not be a competent witness for the plaintiff without leasing his interest in the surplus, because his proof would go to swell a fund, in which he would, in a certain event, have a right to participate. But the question here is, simply, which of two trustees shall administer the fund, the rights of the insolvent being identically the same, let the result be what it may. Under such circum- stances, I think, there is such an equilibrium of interest, that the insolvent would be a competent witness for either party, and so 80 HIGH COURT OF CHANCERY. thinking, I am of opinion, that the complainant having thought fit to make him a defendant and examine him in that form, must be content to take his answer as evidence against him, so far as it is responsive to the allegations of the bill. On the ground, therefore, of the insufficiency of the proof, to establish a fraudulent intent on the part of the defendant, Childs, in the execution of this deed, the Chancellor passed a decree, dismissing the bill, but without cost. [No appeal was taken from this decree.] THOMAS T. WHEELER'S ) ESTATE $ SEPTEMBER TERM, 1847. [CHANCERY PRACTICE CONTRIBUTION AMONG JOINT OBLIGORS ASSIGNMENT OF JUDGMENT.] WHERE a case is set down for hearing on bill and answer, all the averments of the latter, whether responsive or not to the allegations of the bill, are taken to be true. Three joint obligors in a single bill, though jointly and severally liable to the creditor for the whole debt, are, as among themselves, each bound to contrib- ute one-third ; because each must be supposed to have received that propor- tion of the consideration, upon which the obligation was given. One of such obligors who has received from another a sum of money or other property, equal in value to the proportion of that other in the common bur- den, and released him from all liability on account thereof, must be supposed to have received a consideration equal to two-thirds of the debt, and must be charged with that proportion, in adjusting the equities between himself, and the remaining obligor. The third obligor, who has been compelled by the creditor to pay a sum ex- ceeding his one-third, will be allowed at once in equity, and without circuits, to go against the party thus supposed to have received two-thirds of the con- sideration of the debt for such excess. The obligor who has paid the judgment of the creditor, and taken an assign- ment thereof to himself, may use such judgment for his indemnity, so far as it clearly and certainly appears, that his co-debtor ought to contribute. [Thomas T. Wheeler, on the 19th March, 1844, executed to Richard J. Bowie, a conveyance of all his property, real, per- THOMAS T. WHEELER'S ESTATE. 81 sonal and mixed, in trust to sell for the benefit of his creditors. On the 1st February, 1847, the trustee, who had partly execut- ed the trust, filed his bill in this court, making John H. Hillea- ry, and others of the creditors, parties, for a sale of the property, and for the direction of the court as to the management of the trust. John H. Hilleary in his answer, set out his claims against Wheeler, amongst which was that hereafter referred to as No. 2. The cause was set down for hearing upon bill and answer, and a decree passed by consent, in conformity with the prayer of the bill, and directing an account by the trustee of the sales made by him previous to the filing of the bill, "all equities being reserved as to the creditors of the said Wheeler, entitled under the said deed of trust, for or on account of the proceed- ings of the trustee, previous thereto, nothing being herein in- tended to affirm the propriety thereof," and with a similar reser- vation of the equities of said creditors as to the sales to be made under the decree. The trustee thereupon proceeded to make farther sales, reported those made before the decree and brought considerable sums into court. The case came up on exceptions to the Auditor's report as to claim No. 2, in the statement of claims. This claim was founded upon the joint and several single bill of the said grantor, Thomas T. Wheeler, of Odel Wheeler and Thomas Hilleary, all of whom were admitted to be prin- cipals, for $1800, dated 17th March, 1825, and payable twelve months after date, with interest from date, upon which judg- ment was recovered at March term, 1829, of Montgomery Coun- ty Court against Thomas T. Wheeler and Thomas Hilleary, in the name of Thomas S. Wilson, the obligee, for the use of Jonathan T. Wilson ; which was revived at November term, 1843, against said Wheeler alone, in the name of the executors of the obligee, for the use of the said Jonathan T. Wilson, $570 being credited thereon, as of the 7th May, 1829, and against John H. Hilleary, as administrator of Thomas, and was afterwards paid by John H. Hilleary, as appears by his answer, on which it was assigned to him. No proceedings were insti- tuted against Odel Wheeler, the other co-obligor, and an agree- 82 HIGH COURT OF CHANCERY ment had been made by Thomas T. Wheeler with his repre- sentatives, dated 3d November, 1842, by which, for a valuable consideration, he released them from all liability on account thereof, and agreed to indemnify them for any loss by reason of the same, "provided always that the said Thomas T. Wheeler shall have full power and authority to defend any suit at law or in equity, which may be instituted against the representatives or heirs of the said Odel, or either of them, on account of the said single bill." Upon this agreement the Auditor gave Hilleary the benefit of the lien of the judgment, charging him with only one-third, and the proceeds of Wheeler's property with two-thirds. By his statement, there appeared to be due on the judgment after crediting all payments up to the time of the payment in full by Hilleary, the sum of $2329 52, to which was added so much as he had paid over and above his one-third, with in- terest thereon to the day of sale, making the sum of $2880 27, less than the whole amount of the judgment, principal and in- terest, without the credits on account of the payments made by Wheeler and Thomas Hilleary, deceased. It was intended by the complainant, that by this statement, Hilleary would receive, even on the hypothesis that Wheeler's estate was responsible for two-thirds, the sum of $428 14 more than he was entitled to. The original debt being $1800, with interest from the 17th March, 1825, Thomas Hilleary paid $570, on the 7th of May, 1829, the costs being then $17 97. On the 28th November, 1837, additional costs amounting to $5 31, having been in- curred, John H. Hilleary, the claimant, paid $600, and on the 2d April, 1836, Wheeler paid $300. Additional costs, amount- ing to $12 08, were afterwards incurred, and Wheeler paid 12th December, 1845, $250. The complainant excepted to the Auditor's report. 1st. Because compound interest was in effect allowed, and the estate of Wheeler was at the farthest only bound for two- thirds of the original debt and interest. 2d. Because the judgment was improperly allowed as a lien. 3d. Because Wheeler was only bound for one-third. THOMAS T. WHEELER'S ESTATE. 83 4th. Because there was no evidence in the cause, of the time or amount of payment made by Hilleary, on which he procured the assignment. It was contended by Hilleary's solicitor, that as his claim was set up in his answer, and the decree was passed on bill and answer, no further proof could be required of him; and on the other side it was asserted, that the reservation in the decree prevented that effect.] THE CHANCELLOR : I do not look upon it, the reservation, as at all affecting the rule, that when a case is set down for hearing on bill and answer, all the averments of the latter, whether responsive or not to the allegations of the bill, are to be taken for true. All the creditors of Wheeler not being parties to the bill, it seemed proper that there should be a reservation of their equities, not only with respect to the proceedings of the trustee, before he invoked the aid of this court, in the execution of his trust, but that the reservation should extend to what might be done sub- sequently thereto. This is my understanding of the scope of the reservation, and I think it would be carrying it beyond its legitimate extent, to construe it, so as to require proof of facts which according to the rules of pleading, and the practice of this court, would, but for the reservation, be considered admitted. It is apparent upon the face of the instrument itself, (the sin- gle bill,) "and it is admitted in writing, that the three parties were all principals in the single bill, and therefore it is to be intended, that they each receive one-third of the consideration upon which it was executed. And it likewise appears by the agreement between the representatives of Odel Wheeler and Thomas T. Wheeler, that the latter, for a valuable considera- tion paid him by the former, released and discharged them from all obligation to contribute to the payment of the debt, to the obligee, Wilson, and contracted to indemnify and save them harmless on account of the same. It is true, Thomas T. Wheel- er stipulates in the said agreement, that he shall have power 84 HIGH COURT OF CHANCERY. and authority to defend any suit at law or in equity, which may be instituted against the heirs or representatives of Odel Wheel- er on account of said single bill, but this stipulation is not in- consistent with, but is entirely compatible with the complete substitution of himself as the party liable, in the place of his co- obligor, Odel. As I understand this agreement, Thomas T. Wheeler by it assumed upon himself, for a valuable consideration, moving from the representatives of Odel to him, the payment of Odel's one- third of the single bill in question, which made him responsible for two-thirds. The stipulation, that he shall have power to defend the proceedings at law or in equity which may be insti- tuted against the representatives of Odel Wheeler, does not appear to me to militate against this view of the obligation im- posed upon him by contract. Having by his agreement with the representatives of Odel, undertaken to pay his, Odel's, part of the single bill, nothing was more natural or proper than that he should be authorized to defend any action which might be brought against those representatives on account thereof; and being so authorized, it is quite likely a failure on their part to give him notice of such action, might be fatal to their right to recover from him upon the contract, in the event of their being compelled to pay any thing on the single bill. But as the case presents itself to my mind, the question here is not, whether the representatives of Odel Wheeler could re- cover from Thomas T. Wheeler, if they were made to pay any part of the joint debt, without having given him an opportunity to defend the action ; but whether as between Thomas T. Wheeler and Thomas Hilleary, the former by receiving from Odel Wheeler a full and valuable consideration for that portion of the debt, which he, Odel, was bound to pay, Thomas T. Wheeler is not, with respect to Hilleary, substituted for Odel, and responsible for his one-third of the joint debt due upon the single bill. There can be no doubt, that originally each of these three joint obligors, though jointly and severally liable to Wilson, the creditor, for the whole debt, were, as among them- selves, each bound to contribute one-third, because each must THOMAS T. WHEELER'S ESTATE. 85 be supposed to have received that portion of the consideration upon which the obligation was given. But if either one of them receives from the other a consider- ation equal to the proportion of that other, of the common bur- den, he must take that proportion upon himself, and in the ad- justment of the equities between the remaining party and the obligor, who has enjoyed a consideration equal to two-thirds of the debt, the latter must be charged with that proportion. That appears to me precisely the relative position of these parties, Thomas T. Wheeler, Odel Wheeler and Thomas Hil- leary, each received from Wilson a consideration in money or property, equal to six hundred dollars, and executed to him their joint and several single bill for eighteen hundred dollars. As between themselves, therefore, each was liable to pay six hundred dollars. But one of them, Thomas T. Wheeler, re- ceived from another, Odel Wheeler, in money or property, or in something else of value, a sum equal to the six hundred dol- lars. Surely, therefore, he, Thomas T., should pay twelve hundred dollars, and Hilleary, the third co-obligor, who has been compelled by the creditor to pay a sum exceeding his one- third of the debt, should be allowed at once in equity, and with- out circuity, to go against him, Thomas T., for such excess. This view of the subject relieves the case, as it seems to me, of the question raised upon the argument, as to the obligation to give Thomas T. Wheeler notice, and an opportunity to de- fend a suit brought against Odel Wheeler. He has agreed to assume the payment of Odel's part of the debt, and may as well here, as anywhere else, show, if he can, that Odel is liable for less than a third, or not liable for any portion. No attempt has been made to do this, and upon the face of the instrument and by the terms of the agreement of the parties ; the obligors in the single bill were all principals. I am, therefore, of opinion, that Thomas T. Wheeler is lia- ble to contribute two-thirds ; and I am further of opinion, that the statement of the claim by the Auditor is correct. The creditor unquestionably was entitled to receive the whole amount of his debt, with interest, and the payments made him 8 86 HIGH COURT OF CHANCERY. from time to time, were properly applied in the first instance to the extinguishment of the interest due upon the whole capital, the excess of such payments only being applicable to the pay- ment of the capital itself. But the mode of stating the claim, contended for by the counsel of Thomas T. Wheeler, would defeat this incontestible right of the creditor ; for by splitting it up, and applying the payments to the satisfaction, not of the sum due for interest on the whole debt, but on that portion of it assumed to be due from the party making the payment, it is obvious, the creditor would not receive as much for principal and interest as he was clearly entitled to. It is not asserted, that the creditor has received more than he had a right to de- mand, and I therefore think it must follow, that Hilleary has a right to recover from his co-debtor, Thomas T. Wheeler, the excess which he Hilleary, has paid, beyond that proportion of the debt for which he was liable. The remaining question relates to the extent to which Hil- leary has a right to use the judgment, for his protection and indemnity. That he has a right to use it to some extent, is settled by authority. Sells vs. Jldmrs. ofHubbell,2Johns. Chan. Hep., 397 ; Scribner vs. Hickok, 4 ib., 530. The only sums credited upon the judgment at the time of its assignment to Hilleary, is the $570, paid by his intestate on the 7th May, 1829. The subsequent payments are not credited, and I can see no reason why the judgment may not be used for the protection of Hilleary, so far, in the language of Chancellor Kent, as it clearly and certainly appears that the other party ought to contribute. What difference can it make, so far as this question is con- cerned, whether the party paying more than his proportion of the debt, pays it from time to time in partial amounts or pays all at once ? If, to be sure, these partial payments had been credited upon the judgment, it might, pro tanto, be regarded as satisfied, and when the final payment came to be made, the party making it must take and use the judgment, only for what remained due upon it. But when the judgment stands open, I cannot see why a co-debtor paying more than his due propor- tion may not avail himself of the judgment, for his indemnity. BROWN VS. STEWART. 87 He is not to be deemed, as remarked by Chancellor Kent, in Scribner vs. Hickok, a purchaser for himself of the judgment, and to use it as if it stood in the character of a stranger to the parties, but having satisfied it, as one of the defendants, he is entitled only to indemnity or contribution as a co-defendant from the other defendants. My opinion, therefore, is, that if after deducting the sum which was credited upon the judgment, there remains as much due as is equal to the amount which Hilleary has a right, upon the principles which have been stated, to claim as contribution from Thomas T. Wheeler, that in that case Hilleary has a right to the use of the judgment for his indemnity, to the full amount of such claim. [No appeal wastaken from this decree.J HENRY H. BROWN ^ vs. C SEPTEMBER TERM, 1847. ROBERT STEWART ET AL.3 [INJUNCTION MORTGAGE.] IF a mortgagor, in possession, is committing waste, equity will restrain him by in- junction. In Maryland, unless there is some agreement of the parties to the contrary, the mortgagee is entitled to the possession of the property immediately upon the execution of the mortgage, without regard to whether there has been a for- feiture or not. But because the mortgagee may take possession of the property or recover it by an action of replevin, he is not, on this account, precluded from the right of having it protected in a court of equity. The case of a mortgage forms an exception to the general rule, that a party shall not be allowed to sue at law and in equity, for the same debt, and a mortgagee may pursue all his remedies at once, yet he is under no obligation to do so. Where a mortgagee files a bill for the sale of the mortgaged property for the satisfaction of his debt then due, and alleges that it being in the possession of the mortgagor, has been, or is about to be, wasted ; or, where it consists of personalty, is about to be removed beyond the reach of the creditor, a court of equity has and will exercise the power of preventing the threatened mis- chief, by injunction. 88 HIGH COURT OF CHANCERY. When a motion to dissolve an injunction is heard on bill and answer, so much of the bill as is not denied by the answer is taken for true, and if any one of its material allegations remains unanswered, the injunction will be contin- ued till the final hearing. When mortgaged property has been turned into money, the rights of the mort- gagee remain unaltered by the conversion, and he has a right to have the money applied to the payment of his claim. [The bill filed in this cause, stated, that on the 3d day of January, 1843, Robert Stewart of Anne Arundel county, exe- cuted a mortgage of certain real and personal property, the lat- ter consisting partly of slaves, to Henry H. Brown, the com- plainant, and Thomas M. Camden, to secure them in the sum of $1200, with interest from the 6th May, 1841, and also against any future liabilities, which they might incur in his behalf; that this debt having been reduced, to the sum of $424 88, on the 12th November, 1842, Stewart, on the 21st December, 1843, gave the complainant his single bill therefor, which, together with the statement ascertaining said balance, was filed with the bill of complaint ; that since the execution of the mortgage, one of the negroes conveyed by it, had died, and four had been sold out of the state, for about one thousand dollars, the whole or a part of which sum had been deposited in the Farmers Bank of Maryland by the defendant, to his own credit ; that he was about to sell other of the negroes and per- sonalty ; and that his title to the real property was a courtesy interest, nearly valueless, on account of his advanced age. The complainant alleged his ignorance of the extent to which Camden and himself had been indemnified as securities, as aforesaid, and concluded with a prayer for a discovery on the part of Camden and Stewart relative thereto.; for an injunction against the latter, and the Bank ; to restrain the one from sell- ing more of the negroes or other personalty, and the other from paying over the proceeds of the former sale to said Stewart's order ; and for a sale. Stewart in his answer, admitted the execution of the mort- gage, the correctness of the statement of his debt to the com- plainant, (with the exception of the credits x to be made on the BROWN VS. STEWART. 89 12th November, 1842,) the death of one of the negroes ; the sale of four, and the deposit to his own credit in the Farmers Bank of Maryland ; but denied an intention to sell more of the negroes ; the insufficiency of the residue of the property ; and his indebtedness to the complainanf. In the statement filed by the complainant, the defendant was credited as of the 12th November, 1842, with a commission of $200, for services rendered, which left a balance of $424 88, for which he gave his single bill as stated above and admitted in the answer, but the answer further stated, that the transac- tion was a fraud upon the defendant, who, relying upon the correctness of the balance stated by the complainant, had affix- ed his signature to the instrument without having read it, and denied the sufficiency of the last credit, stating in relation thereto, that on the 21st March, 1840, letters of administration were taken out by said defendant, together with the complain- ant, upon the estate of Thos. R. Cross, deceased, which is not yet fully administered ; that said Cross, in his lifetime, being largely indebted to him, and he being in like manner, indebted to P. McKenna & Co. the two former united in a single bill to the latter, dated 30th January, 1838, for $227 48, with the understanding, that it was to be paid by said Cross, who never- theless died without having done so, and at April term, 1840, judgments were recovered on this bill, one against said Stew- art, as surviving obligor, and another against him and the com- plainant, as administrators of said Cross. That the sum due on these judgments was paid by the defendant, with the under- standing between him and the complainant, that he should be allowed for it, against the estate of the deceased ; that although an order to that effect had been passed by the Orphans' Court, the allowance had not been made ; and, therefore, that this was now a good set-off against the complainant's claim. The answer further stated, that instead of an allowance of $200, for com- missions, on the 12th November, 1842, the proper allowance was $392 98, being half the commission allowed by the Or- phans' Court, to him and the complainant, as administrators as aforesaid. 8* 90 HIGH COURT OF CHANCERY. The propriety of the allowance of these two credits constitu- ted the main ground of the defence, made by the defendant, as their allowance would render the complainant indebted to him to a small amount. The complainant excepted to this answer, as not being re- sponsive to the allegations in the bill, as to the sum for which the slaves were sold, as to the alleged disposition of other por- tions of the mortgaged personalty, the deposit of the proceeds of sale in the said bank ; the continuance of a residue of the same on deposit there ; the intention of selling other portions of the mortgaged property besides the negroes ; and the courtesy inter- est. These exceptions having been argued, together with the motion to dissolve the injunctions, the Chancellor delivered the following opinion :] T H CHANCELLOR: With regard to the last of these credits, (the set-off claimed,) it is sufficient to say, that if the voucher upon which it is claimed, can hereafter be used as the evidence of a title to re- imbursement from any one, it can certainly not be set off against the claim of this complainant founded upon his mort- gage. If the defendant t ewart, has, in respect of this trans- action, a claim against any party, it is against the estate of Thomas R. Cross, upon which letters of administration were granted to him and the complainant. Surely, the complainant, Brown, cannot, out of his own estate, be made to pay the debt of a man upon whose estate he has administered, to his co-administrator, in a proceeding like the present. If he, the complainant, be liable exclusively for the payment of this debt, it is a liability in his representative character, and cannot be set off against a debt due him in his own right. With respect to the remaining credit, claimed by this defendant, indepen- dently of the other objections insisted upon in the argument, I deem the settlement and the sealed acknowledgment of the 21st December, 1843, as conclusive against it, in the present state of this case. If the defendant, Stewart, was entitled to this credit, he was so entitled prior to, and at the date of the BROWN VS. STEWART. 91 settlement referred to, and unless that settlement, manifested and sanctioned by his hand and seal, can be shown by proof to have been founded upon mistake, or procured by fraud, it must conclude the antecedent transactions between the parties, and more especially those transactions upon which the settlement professes to have acted. I think it, therefore, very clear, that so far as this defendant has attempted to remove the ground upon which this injunction rests, by attempting to show an extinguishment of the com- plainant's claim, he has not succeeded, but that the latter must, at least in this stage of the cause, be considered as having a ti- tle to sue upon the mortgage. The object of this bill, as we have seen, is not only to pro- cure a sale of the property mortgaged, for the payment of the claim of the complainant, but upon the averment of the sale of a portion thereof, and the apprehended disposition of the resi- due by the defendant, and the consequent diminution or de- struction of the security for the debt, the court was called upon to interpose its conservative power for the protection of the rights of the complainant. That a mortgagee, prior to the period when he may proceed to foreclose and sell the property mortgaged, may, by a bill in equity, with such averments as are contained in this bill, obtain an injunction as a preventive remedy against the apprehended danger, has been decided by the Court of Appeals. Clagett et al. vs. Salmon, 5 G. Sf J., 314. But that court has not decided, nor do I find it, so far as my examination has extended, ex- pressly decided anywhere, that the court will put forth its au- thority in this way after the debt has become due, and conse- quently at a period when the mortgagee has a right to ask for a foreclosure and sale of the property. I do not, however, find the contrary to be decided, and it seems to me the administration of justice would be defective if the power invoked by this bill is denied the court. If a mortgagor in possession is committing waste, equity will restrain him by injunction ; though in one case, Lord Thurlow appeared to question the doctrine, upon the notion that the 92 HIGH COURT OP CHANCERY. mortgagee was in fault, in permitting the mortgagor to continue in possession. Eden on Injunctions, 166 ; Robinson vs. Litton, 38 Atk. 210 ; Fanant vs. Lovel, ib., 723. It is true, that it is established in Maryland, that unless there is some agreement between the parties to the contrary, the mort- gagee is entitled to the possession of the property, immediately upon the execution of the mortgage, and this without regard to whether there is a forfeiture or not. Jamison vs. Bruce, 6 G. fy J., 72. And hence it follows, that though either before or after forfeiture at law, the mortgagee may take possession of the property, or recover it by an action of replevin, he is not on this account precluded from the right of having it protected in this court, until it can be made available by a decree for the pay- ment of the debt charged upon it. If it be urged, that there is no necessity for the interposition of the court in this case by injunction, because the debt being due, the mortgagor may possess himself of the property by re- plevin, the answer is, that the same right would exist, though the debt was not due, and in the latter case the Court of Appeals have expressly affirmed the power of this court to preserve the property by injunction. Though the case of a mortgage forms an exception to the gen- eral rule, that a party shall not be allowed to sue in law and in equity for the same debt, and a mortgagee may, without re- straint, sue upon all his remedies at once, (having nevertheless but one satisfaction,) yet he is under no obligation to do so, and it would certainly be falling short of the demands of justice, and the exigency of the case, if this court, when the remedy is sought exclusively here, has not the power in a proper case, to protect the subject of the controversy from destruction, while the suit is depending. 3 Powel on Mortgages, 966 and note 1 ; Jones vs. Conde, 6 Johns. Ck. Rep., 77. I am, therefore, of opinion, that when a mortgagee files a bill in equity for a sale of the mortgaged property, for the satisfac- tion of his debt, being then due, and alleges, that it being in possession of the mortgage i , has been, or is about to be wasted : or where it consists of personalty, is about to be removed be- BROWN VS. STEWART. 93 yond the reach of the creditor, thus impairing his security ; that in such a case this court has the power, by injunction, to prevent the threatened mischief, and preserve the pledge until it can be applied to the purpose, for which, by the contract of the parties, it was destined ; that such a power is indispensable to that complete and full justice which a court of equity is author- ised to administer, and should have the means of administering, in all cases within its jurisdiction, without the aid or co-opera- tion of other tribunals. But, although an injunction may be granted in such a case as is made by this bill, yet it is liable to be dissolved as in other cases, upon the coming in of the answer, if the equity upon which it is founded, is sworn away or denied, and it remains to be seen, whether the equity of this bill is so sworn away. It has already been remarked, that the attempt to show, that the complainant's claim has been extinguished, is unsuccessful, as the case now stands upon bill and answer, and, therefore, he must be regarded for the purpose of the present motion, as a mortgage creditor, and entitled to all the remedies which right- fully belong to that position. This relation by itself, however, would not have entitled him to an injunction in the first instance, nor would it now entitle him to a continuance of it. He must show, not only that he has a claim as mortgagee, but that with- out the prompt intervention of this court by injunction, he would, by the wrongful and fraudulent act of his debtor, be de- prived of his security. This was done by the bill, and after a careful examination of the answer, I am of opinion, that some of the material allegations of the former are neither admitted nor denied, and consequently the injunction must be continued. It is settled that when a motion to dissolve an injuction is heard on bill and answer, so much of the bill as is not denied by the answer, is taken for true, and that if any one of its ma- terial allegations remains unanswered, the injunction will be continued till the final hearing, because in such a case, the equity upon which the injunction issued is not sworn away. I am of opinion, that the complainant's second, third, fourth, fifth and sixth exceptions to the answer of Stewart are 94 HIGH COURT OF CHANCERY. well taken. The second, fifth and sixth relate to acts or inten- tions imputed to defendant impairing, or showing the inadequa- cy of the security, and they are not answered explicitly and frankly as they should be. The allegations in the bill, upon which the third, and fourth exceptions are founded, relate to the application and present po- sition of the money for which the mortgaged slaves were sold. It was certainly material to trace this money, and discover where it is deposited, as otherwise it could not be applied at the prop- er time, to the payment of the claim of the complainant, should such payment hereafter be decreed. The right of the com- plainant to have such application made, depends upon whether the money alleged to be in the bank, arose from the sales of the slaves, or other property included in the mortgage. The bill so alleges, but the answer instead of admitting or denying this allegation, by which the money in bank could be identi- fied with that which the defendant received from the sales of the slaves, which he confesses he sold, states that he applied the money to his, the defendant's own use. Now this identity of the money in bank, is an important fact, for upon it de- pends the right of the complainant, to have it appropriated specifically to the payment of his claim, the principle being, that when mortgaged property is turned into money, the mort- gagee, has a right to have it applied to the payment of his claim ; his rights remaining unaltered by the conversion of the property into money, Jistor vs. Miller, 2 Paige, 68. For these reasons, I am of opinion, that the injunction must be continued, and shall so order. [No appeal was taken from this order.] CULLISON VS. BOSSOM. 95 CULLISON AND WIPE ^ :.;. > SEPTEMBER TERM, 1847. JOHN BOSSOM ET AL. 3 [DEMURRER DISCOVERT AMENDMENT.] UPON a demurrer to a bill, because it sought to compel the defendants to a dis- closure of their titles, HELD That the right of a plaintiff in equity to the benefit of the defendant's oath, is limited to a discovery of such material facts as relate to the plaintiff 's case ; and does not extend to a discovery of the manner in which, or the evidence by means of which, the defendant's case is to be established. Where there is a privity shown to exist between the title of the plaintiff and defendant, that privity may give him the right to call for an exposure of the defendant's title ; but unless such connection is shown, he has no such right, whether the bill be for discovery only, or for discovery and relief. The title of the plaintiffs not appearing to be at all dependent upon, or con- nected with, that of the defendant, the demurrer was ruled good. Allowing a demurrer to a whole bill, in strictness, puts it out of court, and no subsequent proceedings can be taken in the cause ; yet, the court has some- times permitted an amendment of the bill to be made. [This case was brought before the court on a demurrer to the bill the arguments of the solicitors for the parties, having been submitted to the Chancellor in writing. The bill was filed by the grand-daughter of Daniel McCo- mesky, deceased, and her husband, against the defendants, stat- ing that the latter professed to claim a portion of the lands of the deceased, through one of his devisees, also deceased. After tracing the title of the female complainant as one of the heirs at law, as well to the deceased testator, as to his devisee, through whom the defendants claim, the bill prays that "the de- fendants may answer the premises as fully as if again thereto especially interrogated, and may state particularly by what title, or titles, or writings, they severally claim to be entitled to any part of said estate, and may produce all and every such writ- ings, or titles." The bill further prayed, that the lands might be sold and a distribution made of the proceeds ; and for further relief. Those of the defendants who did not disclaim all interest in 96 HIGH COURT OF CHANCERY. the cause, demurred, amongst other things, to this prayer of discovery ; on the ground, that the complainant had no right to compel the defendants to a disclosure of their titles.] THE CHANCELLOR: It seems to be the well established rule of the court, that the right of a plaintiff in equity to the benefit of the defendant's oath, is limited to a discovery of such material facts, as relate to the plaintiff's case, and does not extend to a discovery of the manner in which, or the evidence by means of which, the defendant's case is to be established, or to any discovery of the defendant's evidence. 1 Daniel's Prac., 645, 646. If, to be sure, there is a privity shown between the title of the plaintiff and defendant, that priority may give him the right to call for an exposure of the defendant's title ; but unless such connection with his own title is shown, he has no right to call for a discovery, or production of the title of his adversary ; and this, whether the bill be for discovery only, or for discovery and relief. Story's Eg. PL, sec. 572; Daniel's Prac., 647. The rule as laid down by Judge Story is, "that a party has no right, to any discovery, except of facts and deeds, and writ- ings necessary to his own title, or under which he claims ; for he is not at liberty to pry into the title of the adverse party." 2 Story's Equity, sec. 1490. Upon a^ examination of this bill, I am of opinion, that there is not that immediate connection and privity, if indeed there be any, between the titles of these plaintiffs and defendants, as war- rants an application for the production or discovery of the title of the latter. The title of the plaintiffs is stated distinctly, and does not appear to be at all dependent upon or connected with that of the adversary, and, therefore, it seems to be an attempt without necessity, to pry into the title of the latter, in opposi- tion to the fixed rule upon the subject. The bill does not al- lege that the plaintiff's title is at all complicated with, or at all dependent upon, that of the defendants ; or that the former will have any difficulty in establishing their right, without an ex- posure of the title of those from whom the discovery is sought ; WASHINGTON UNIVERSITY VS. GREEN. 97 and, therefore, I think the bill, so far as the discovery is con- cerned, cannot be maintained, and that the demurrer must be ruled good. In strictness, the allowing a demurrer to the whole bill, puts it out of court, and no subsequent proceeding can be taken in the cause ; yet there are cases in which the court has afterwards permitted an amendment of the bill to be made. Daniel's Prac., 669; ^Alexander's Prac., 58. This bill will, therefore, be retained, to give the plaintiffs an opportunity of amending it, if they think proper. It is, thereupon, this 12th day of November, in the year 1847, adjudged and ordered, that the demurrer to the discovery of the defendant's title, sought by this bill, be, and the same is, hereby, ruled good, and that the defendants recover from the plaintiffs their costs to be taxed by the Register ; but this bill is retained with liberty to amend, as the plaintiffs may be advised. [No appeal was taken from this order.] THE WASHINGTON UNIVER- ) SITY OF BALTIMORE ET AL. ( > SEPTEMBER TERM, 1847. vs. I EDWARD GREEN. [INJUNCTION.] AN injunction, unless issued after the decree, when it becomes a judicial pro- cess, can only be used for the purpose of prevention and protection, and not for the purpose of commanding the defendant to undo any thing he had pre- viously done. The bill alleges, that the buildings on the grounds in question, were used for the purpose of giving medical instruction, and as an infirmary for the sick, by the professors composing the medical faculty of the corporation, and prays that the defendant shall be restrained from so acting as to interfere with their possession and use for that purpose ; and that he be commanded to for- bear from the repetition of the acts which impeded the enjoyments of the rights and the discharge of the duties on the part of the professors. HELD That an injunction of this descriptuwTcannot be regarded as going beyond the 9 98 HIGH COURT OF CHANCERY. legitimate office of the process, or .as possessing the character of a judicial writ. Where the material allegations of the bill are denied by the answer, the motion to dissolve must prevail, unless the bill can be supported by testimony taken under the act of 1835, ch. 380, sec. 8. All averments of the bill, not denied by the answer, must, upon all questions relating to the injunction, be regarded as true. After the injunction was dissolved, the defendant filed* a petition, stating that the complainants, in pursuance of the injunction, had taken possession of the property, to which the defendant yielded, and prays that an order may be passed, restoring the possession to the defendant. HELD That if the defendant has surrendered a possession previously held by him, he he has done that which the court, by its injunction, did not command him to do, and for which he has no right to ask for redress at its hands, and that the petition should be dismissed. [The bill in this case was filed by the Washington University of Baltimore, and the surviving trustees under a deed of trust from said university, stating that said trustees and certain cestui que trusts under said deed, filed a bill in this court against the university and Edward Green, claiming a sale of the property conveyed by the deed, according to its provisions ; and stating that Green claimed the same as purchaser under an execution against the university, recovered long after the deed of trust was executed. That subsequent to the filing of said bill, Green in- stituted an ejectment suit in Baltimore County Court for the recovery of said property, making Holden B. Hill, steward of the buildings of the university, defendant. That as Hill was only the nominal defendant, the trustees, as they had a right to do, interposed to defend the suit, and employed a counsel for that purpose, who was the only one engaged for the defence. That at January term, 1847, of said court, judgment by con- fession was entered for the plaintiff, Green, with an agreement for a stay of execution till the determination of the suit in chan- cery. That the property consisted of large grounds and ex- tensive buildings, in Baltimore, used for medical instruction, and as an infirmary, and was so used when said judgment was rendered, and long before, under the direction of the faculty of said institution. That the suit in chancery had not been ter- minated, although complainants had tried to bring it to a close, when suddenly, on the 2d of August, 1847, Green in defiance WASHINGTON UNIVERSITY VS. GREEN. 99 of his agreement the foundation of the judgment violently entered said buildings and drove out the professors engaged in instruction, and in tending the sick ; and emboldened by the advice of counsel, he persisted in preventing them from enter- ing, in discharge of their duties, although there was there much valuable property belonging to them and others connected with the institution. The bill concluded with a prayer for an injunction, the na- ture and extent of which is set forth by the Chancellor in his opinion ; and for general relief. An injunction was immediately granted upon this bill, and afterwards the defendant filed his answer, stating, that it was true that a bill had been filed in chancery, as alleged in the present bill, and that the answers thereto had been filed, and the proceedings were then pending, although he had endeav- ored to bring the case to a final hearing. That he did institute an ejectment suit for said property as stated in the bill, but that the pendency of the chancery suit was no objection to its pros- ecution, or if it was, the defence should have been taken at law. That he purchased the property at a sheriff's sale, obtained a deed for it, and was put into possession by Hill, whom he suf- fered to remain on the property to take care of it and make such profits from it as circumstances would allow ; Hill ac- knowledging himself his tenant, and agreeing to surrender the possession when required. That in April, 1845, he demanded possession of Hill, which being refused, he brought said eject- ment and recovered judgment thereon ; and was on the 22d of July, 1847, peaceably put in possession, by Hill, of the said grounds and premises. That as Hill waived the agreement, which he had a right to do, his so taken possession was not in violation of the terms thereof. That he denied, and ever did, the right of the corporate authorities of the institution, or of the trustees, to interfere with him in the possession of the property, forasmuch as the former confessed the judgment, upon which the sale to him was made ; and as, by the terms of the deed, the latter had no right to interfere with, or control the institu- tion, even admitting the validity of the deed, (which he did HIGH COURT OF CHANCERY. ' ' ' not;) as dividends had never been declared by the corporate authorities, nor had any profits been earned. But that whilst maintaining "fijw^right to the premises, he denied obstructing the faculty or professors in tending the sick, they having been daily in attendance whilst he was in possession. That the resi- dent professor continued to perform his duties all the time, and the sick were provided with necessaries at his (Green's) expense. That, as to his forcible entry on the 2d of August, he only took such measures as are necessary to the preservation of property in large cities. That, in his answer, filed in the other suit against him, he had exposed the invalidity of the claim of the trustees, and the answer of the said university, filed in the same case, also, opposed and denied it ; although it might suit the succeeding faculty to deny the admissions of their predecessors, who were fully cognizant of the facts of the case, and to seek by union with the trustees, to benefit themselves, whilst they failed to keep down the current ex- penses of the institution, or to apply any thing to the repair of the property. That none of the members of the institution had sworn to the bill, and that the only one of them who had any interest in the concern refused to join in the suit. And that the title of the complainants, if any they had, was a legal one, and to be asserted at law, not in chancery. On the coming in of this answer, a motion was made to dis- solve the injunction, which was argued before the Chancellor, who delivered the following opinion :] THE CHANCELLOR : One of the grounds taken by the defendant against the con- tinuance of this injunction is, that it transcends the limits usu- ally assigned to this preventive process of the court. That the injunction in this case, instead of simply prohibiting an act to be done, injurious to the rights of the complainants, and leaving things in their then condition, passes beyond this boundary, and commands an act to be undone which had been consummated prior to the filing of the bill. Such, however, was not, nor is it now, my understanding of the extent to which WASHINGTON UNIVERSITY VS. GREEN. 101 this injunction has gone. The bill alleges, that the buildings erected upon the grounds in question had been used for the purpose of giving medical instruction, and as an infirmary for the sick, and were so used through the professors composing the medical faculty of the corporation, who must necessarily have possession, and free and uninterrupted ingress and egress therefrom ; and it prays that the defendant shall be restrained from so acting, as to interfere with their possession, and use for that purpose ; and that he be commanded to forbear from the repetition of acts which impeded the enjoyment of these rights, and the discharge of these duties on the part of the professors. It seems to me that an injunction of this descrip- tion cannot be regarded as going beyond the legitimate office of the process, or as possessing the character of a judicial writ, which can only issue after a decree ; but that, in the language of Judge Story, it is "preventive and protective merely, and not restorative." But conceding that the, injunction in this case does approach very nearly to commanding a thing to be undone, authorities are not wanting to justify it even if viewed in that aspect, as appears by the cases in which parties have been commanded by injunction not thereafter to continue to cause a stream to flow irregularly, by which the plaintiff's mill had been supplied, and the current of which had been impeded by breaches made or obstructions interposed by the defendant. In cases of this description, as it is obvious the injunction could only be obeyed by repairing the breaches, or removing the obstructions, the office of the writ would appear to have been carried further than could be sanctioned, viewing it merely as prohibitory and conservative. The cases in which the writ of injunction has been thus applied, are collected in Mur- dochs case, 2 Bland, 471 ; see also Eden on Injunctions, 331. But the injunction in this case is not put upon this gronnd, as I concur in the principle, that the process, unless issued after the decree, when it becomes judicial, can only be used for the purpose of prevention, and protection, and not for the 9* 102 HIGH COURT OF CHANCERY. purpose of commanding the defendant to undo any thing he had previously done. The injunction then being, as I think, properly issued, and for a purpose within the fair scope and object of the power of the court, to interpose for the protection of rights unjustifiably invaded, it remains to be considered, how far the grounds upon which it issued have been removed by the answer of the de- fendant, the rule being, that if the answer swears away or de- nies all the equity of the bill, the injunction must be dissolved. The equity of this bill consisted in the alleged violation by Green, of the agreement upon which the judgment in the eject- ment suit by him against Hill, was confessed, and in the im- puted violence with which he drove away, and continued to exclude the professors from the enjoyment of the privileges, and the discharge of the philanthropic and important duties with which they were charged. It appeared to me that unless the court interposed to prohibit such conduct, the defendant would not only be permitted to get a most unconscientious ad- vantage of a judgment, against the letter and spirit of the terms upon which it was confessed, but that the most grievous and irreparable injury would be inflicted upon others, by his lawless proceedings. The gravamen of the bill, was the violation of the agreement as charged, and I am of opinion, if the answer denies, plainly and positively, this averment, and further de- nies that the defendant has in any manner obstructed or inter- fered with the professors in the performance of their important duties, in imparting medical knowledge, and attending upon the sick, that upon the principle which governs this court upon motions to dissolve, the injunction cannot be maintained. Now the answer does deny that the defendant took posses- sion in violation of his agreement, or by the use of force and violence of any description, or that he has obstructed or inter- fered with the professors in their attendance upon the sick at the institution ; and asserts that during all the time that de- fendant was in possession thereof, they were in daily attend- ance upon the sick, who were constantly provided with the necessary and accustomed nourishment and medicines. WASHINGTON UNIVERSITY VS. GREEN. 103 Looking then to the bill and answer alone, upon the respon- sive character of which the fate of the injunction must depend ; and seeing that the material allegations of the former are de- nied by the answer, it would seem to follow, that the motion to dissolve must prevail, unless the bill could be supported by testimony taken according to the 8th section of the act of 1835, ch. 380. And this appears to have been the view taken at one time by the complainants themselves, who subsequently to the filing of the answer, applied for and obtained an order agreeably to the provisions of the act ; and perhaps it may not be unworthy of consideration, that their neglect or failure to take evidence, after obtaining authority to do so, leads to the inference that the denials of the answer were not capable of contradiction. Prior to the passage of this act of assembly, affidavits as a general rule could not be read in opposition to the answer, though a different practice obtained in one or two excepted cases. Eden on Injunctions, 326. . The attention of the court, upon this motion, is confined ex- clusively to the injunction ; which depends, in the absence of testimony under the act of assembly in reference to the allega- tions of the bill, upon the question, whether its averments, con- stituting the ground of the injunction, have been denied by the answer. It is deemed of course premature at this time, to form or ex- press any opinion upon the relative rights of the parties, as founded upon the deed of trust, and the judgment under which the defendant purchased. The proper time for that will come at a future period, when it will receive due consideration. The Chancellor upon full reflection, thinks the equity upon which this injunction rests has been sworn away by the answer, and consequently that it is his duty to pass an order dissolving it, which will accordingly be done. [After the dissolution of the injunction, a petition was filed by the defendant Green, the matter of which, and the grounds upon which it was resisted by the complainants, will appear from the following opinion delivered by the Chancellor :] 104 HIGH COURT OF CHANCERY. THE CHANCELLOR: It (the petition) alleges that the complainants in pursuance of the injunction, entered upon, and took possession of the prop- erty mentioned in the proceedings, to which the defendant yielded, not being willing to appear even as offering any op- position to the order of the court ; and it prays, (the injunction having been dissolved,) that an order may be passed restoring the defendant to the possession of the property, so that the par- ties may be placed in the positions they respectively occupied when it was granted. Upon the filing of this petition an order was passed, that the matter thereof should stand for hearing on the second of the present month, provided a copy was served on the opposite party. This has been done, and the complainants have put in an answer in which they contend that the whole effect of the injunction has been to restrain the defendant from those pro- ceedings, by which he interfered with the due exercise of the rights, privileges and duties which the faculty and professors of the university had been enjoying, and were required to be per- formed. It has been already stated, that the injunction in this case went no further and was designed to go no further than to pro- hibit Green, the defendant, from preventing the professors con- stituting the medical faculty of the corporation, from such use of the buildings and other property, as was necessary to enable them to discharge their duties. The bill alleged that his con- duct was such that these duties could no longer be performed, and that he founded his title thus to interfere, upon his judg- ment in the ejectment suit, in the face of his agreement that the execution of that judgment should be stayed until the de- termination of the then depending chancery cause, of Conkling and others vs. the Washington Medical University, and Green, in which the relative rights of all the parties would be decided. Green in his answer denied this statement, and averred that the professors of the university had not been interrupted by him in the performance of their duties, and that he had not taken possession of the property in violation of the agreement upon WASHINGTON UNIVERSITY VS. GREEN. 105 which the judgment was confessed. And upon the faith of these denials the injunction was dissolved. It would appear to be obvious from the answer of Green, that he meant to be understood as saying that his possession of the property, however held, was not incompatible with such use and enjoyment thereof by the professors as was indispen- sable to the fulfilment of their duties ; for he says, that during all the time he was in the possession, they continued in the dis- charge of their several duties. In this state of the case it is not very clearly perceived, what sort of possession it is to which the defendant asks to be restored. According to the theory of the answer, the possession of Green was perfectly consistent with the use of the buildings by the professors, and it was with that use alone that he was prohibited by the injunction from in- terfering. If he desires now a more exclusive possession, so as to interfere with, or prevent the professors from performing their duties, he asks for that, which if avowed in his answer to the bill, would have caused the injunction to be continued. It certainly cannot be tolerated, that the dissolution of an in- junction shall be procured by stating that the party who procures such dissolution has done nothing and means to do nothing in- jurious to the rights of others, and then after succeeding, that he shall be allowed to do the very acts which he had disclaimed having done, or intending to do. The bill in this case indulged in a strain of severe and highly colored animadversion upon the conduct of the defendant, but when this was denied by the answer, no attempt was made to prove it, though an order to take evidence passed at the instance of the complainant. This was significant, and entitled as I thought to some con- sideration upon the motion to dissolve. The answer stated you have unjustly assailed me I have been guilty of no violence, no misconduct of any sort ; nor have I, nor do I mean to interrupt you in performing your duties. Upon this the injunction was dissolved ; but after the dissolu- tion, an application is made for the restoration of rights which the injunction was never intended to take away, and the asser- 106 HIGH COURT OF CHANCERY. tion of which can scarcely be reconciled with the forbearance professed in the answer. The Chancellor is fully sensible of the inviolable force of contracts, and unless parties are entrapped in making them, or they are brought about by fraud, surprise, mistake, or accident, their obligations must be performed. The agreement upon which the judgment in the ejectment case was rendered, appears to me to be a valid and binding en- gagement. The parties made it, and they must stand by it. It is true the answer says, that Hill, the defendant in that action, waived it ; but the bill alleges, that this Hill was the mere ser- vant of the corporation, and but a nominal defendant, and that the cause was conducted by counsel employed by the trustees, and that it was in fact their suit the agreement being signed by their counsel, and the counsel of Green. This averment of the bill not being denied by the answer, must, upon all questions relating to the injunction, be regarded as true ; and surely if true, then a waiver by Hill of the agree- ment, cannot be allowed to prejudice the parties by whom it was made. If, as is intimated in the petition now under consideration, the defendant, Green, has gone further than was required by the injunction, and has not only forborne to interfere with the use and enjoyment of the property by the professors, but has actu- ally surrendered a possession previously held by him then he has done that which the court did not command him to do, and for which he has no right to ask for redress at its hands. It was a voluntary act on his part, and of the same character as the act of Hill, the nominal defendant in the ejectment, in waiv- ing, as alleged, the benefit of the agreement. The Chancellor has not fully considered, and therefore does not mean now to decide, how far this court has the power to order a restoration of possession of rights, supposing them to have been surrendered under circumstances like those attend- ing this case. No authority for the application has been pro- duced, and it is believed that none can be readily found. In the light in .which this application presents itself to me, HAMILTON VS. ANNAPOLIS RAIL ROAD CO. 1Q7 I am of opinion that I ought not to interfere in the manner asked for, and therefore the application is disallowed, and the petition will be dismissed. [No appeal was taken from either of the orders in this case.] JOHN HAMILTON ) vs. / THE ANNAPOLIS AND ELK RIDGE > DECEMBER TERM, 1847. RAIL ROAD COMPANY ET AL. > [RIGHT OF EMINENT DOMAIN FORFEITURE OF CHARTER VENDRO'S LIEN.] NOTHING can be clearer than that private property cannot be taken for public use, without making just compensation to the owner. The right of eminent domain gives to legislative authority the control of private property for public uses, subject to the condition, that a reasonable and just compensation shall be made to the owner. Any attempt to exact this power, without complying with the condition, would be at war with the great principles of natural justice, and in direct conflict with the constitution of the United States. The land in question, having been condemned for the use of the Annapolis and Elk Ridge Rail Road, under the act of 1826, ch. 123, sec. 15, and the inqui- sition returned to, and duly confined by, the proper county court, the propri- ety of the condemnation and use of the property, cannot be drawn in question in an accidental or collateral proceeding. A cause of a forfeiture of a charter of incorporation cannot be taken advantage of, collaterally or incidentally ; but it must be enforced by sdre/acias or quo warranto at the instance of the government, and until the government so in- terferes, the franchise continues. So long as the charter of a company continues in existence, their property can- not be taken from them, upon the allegation that it was acquired by an abuse of their chartered privileges. Whether the vendor's lien exists or not, in a case where the property of an in- dividual is taken for the public use in virtue of the right of eminent domain, is a question of no easy solution. [The bill filed in this cause, alleged, that on the 30th May, 1838, proceedings having been previously instituted by the An- napolis and Elk Ridge Rail Road Company, for condemning a 108 HIGH COURT OF CHANCERY. a portion of the complainant's land, required for the construction of their road, a jury convened for that purpose by the company, met and condemned certain land of the complainant for its use, (which the inquisition stated, was condemned as of an absolute estate in perpetuity,) and awarded to him the sum of $212, as damages therefor. That, on the 31st of August, of the same year, another portion of his land, was in like manner condemned, for which the further sum of $135 was awarded to him. That the said damages had never been paid, and no conveyance had been made. That the road had been constructed over only part of these lands, and the rest had been made the site of a public house, which the company had rented for profit, by rea- son of which misappropriation, it was contended, that their right to that portion of the land had been forfeited, and that it had therefore reverted to the complainant. The bill prayed that the company should be decreed to pay the money so due by them, and that in default thereof, it should be perpetually enjoined from passing over that portion of the road, that the equitable lien of the complainant for the purchase money be enforced, and the land be sold for its satisfaction, and that the part occupied by the public house, as above mentioned, be delivered to him, and the company be restrained by injunction, from disturbing him in the enjoyment of it. The answer of the company stated, that shortly after the damages were awarded to the complainant, the same had been tendered him, which he refused to take; and, that the money so tendered, had been for a long time kept ready, to be given him on application. That its property had been conveyed to trustees for the benefit of its creditors, and was then vested in James Iglehart, and William S. Green. That, by an act of assembly, passed at December session 1841, chap. 168, it was authorized to issue bonds, pay- able partly out of net income and profits, and that it had been, and was, willing to issue a bond or bonds, to the complainant for his debt, or if the court should consider the debt a lien on the property, and that such a course would be proper, it was willing to apply its revenues and profits to pay it. That the house built by it was useful as a depot, and that the complain- HAMILTON VS. ANNAPOLIS RAIL ROAD CO. 109 ant had cut down valuable trees near it, the value of which ought to be deducted from the amount due to him. After this answer was filed, the trustees were made parties by amend- ment of the bill, and in their answer took generally the ground taken by that of the company ; some testimony was taken, re- lating to the value of the public house, and the terms on which it was rented, the consideration of which was deemed un- necessary by the Chancellor, under the view which he took of the case :] THE CHANCELLOR: Nothing can be clearer, than that private property cannot be taken for public use, without making just compensation to the owner. The right of eminent domain gives to legislative- authority the control of private property, for public uses, but this power is subject to the condition, that a reasonable and just compensation shall be made to the owner, and any attempt to exert the power, without complying with the condition, would not only be at war with the great principles of natural justice, which lie at the foundation of the social compact, but would be in direct conflict with the constitution of the United States. It follows, therefore, irresistibly, that as the complain- ant has not received compensation for that portion of his pro- perty, which has, through the medium of this company, been taken from him for public use, that he is now entitled to com- pensation ; and this compensation is to be paid him, not in the bonds of the company, issued under the act of 1841, but in money. The bill takes the ground, and the argument of the complain- ant's solicitor urged the same view of the subject, that the land condemned by the inquisition of August, 1838, was not neces- sary for the use of the road, and that, therefore, as to that por- tion of the premises, the company should be ordered by the decree of this court to deliver the possession to the complain- ant. I cannot bring myself to think that such a decree would be at all justifiable. The 15th section of the act of 1826, chapter 123, which so far as the mode of proceeding in the 10 HO HIGH COURT OF CHANCERY. condemnation of property, necessary to the construction and repair of the road is concerned, is confessedly made a part of the charter of this company, directs that these inquisitions shall describe the property taken, or the bounds of the land condemned, &c., these inquisitions, thus describing the prop- erty, or the bounds of the land condemned, are directed by the same section, to be returned by the sheriff, to the clerk of the county, and by him to be filed, and unless sufficient cause to the contrary is shown, the court is directed to confirm the inquisi- tion at the next ensuing session. All this was done in the present case. The property con- demned was described in the inquisition, which was returned to the clerk of the proper county court, was by him filed, and no cause to the contrary having been shown, the inquisition was duly confirmed by the court, and recorded by the clerk, as directed by the statute. These proceedings took place in year 1838, from which time to the filing of this bill, in 1846, they have remained without objection from any quarter. It seems to me, impossible to contend successfully, that under these circumstances, and in this incidental collateral proceeding, the propriety of the condemnation, and use of this property, can be drawn in question. A cause of forfeiture of a charter of incorporation, cannot certainly be taken advantage of collaterally, or incidentally. It must be enforced by scire facias y or quo warranto, at the in- stance of the government, and until the government so interferes the franchise continues. Canal Company vs. Rail Road Company, 4 G. fy /., 1, and as the charter of the company cannot be forfeited, unless pro- ceedings for that purpose be instituted by the government, I am at a loss to conceive how their property can be taken from them as forfeited, so long as the charter remains in existence. By the condemnation of the property in question, and the confir- mation of that condemnation by the county court, it has been ascertained by the proper authority that such property was re- quired for the purposes of the company. And yet whilst that judgment stands, and the corporate franchises of the company, HAMILTON VS. ANNAPOLIS RAIL ROAD CO. m under which the condemnation was made, are in full force, it is proposed by a collateral proceeding to take from them their property, upon the allegation, that it was acquired by an abuse of their chartered privileges. My decided conviction is, that this cannot be done, and that the complainant, having failed to show cause against the condemnation at the proper time, is not now at liberty, to dispute its validity, or necessity. If by applying this property to a purpose not warranted by the charter, the company have exposed themselves to the pen- alty of a forfeiture, and to all the consequences which would ensue from such forfeiture, the complainant is not the party, nor is this the proceeding by which the question is to be tried. But as already observed, the complainant is clearly entitled to be paid the compensation awarded him by the jury, and I cannot think that his right to such payment can be in any way affected by the act of 1841, ch. 168, before referred to. But the complainant, besides praying for the payment of the sums awarded him by the jury, as damages for the coindemna- tion of this land, asks that his equitable lien as vendor, may be enforced, and that the land may be sold for the satisfaction thereof. How far the complainant may be entitled to the lien of a vendor to enforce payment of the purchase money, is a question not free from difficulty. He did not agree to sell the land, and the proceeding adopted by the company under the 15th section of the act of 1826, ch. 123, became necessary in consequence of the failure of the parties to agree. By that proceeding the land was taken from him without his consent, and of course there was no contract to sell. It was a con- demnation or dedication of so much of the property of an in- dividual for the public use, taken in virtue of the right of emi- nent domain; but upon the condition that a just compensation should be made to the owner. Whether, under these circum- stances, the equitable lien of the vendor exists, or not, is a question of no easy solution ; but looking to the language of the act, and indeed independently of any such language, it must be conceded, that the property cannot be taken from the complainant until the valuation placed upon it by the jury is HIGH COURT OF CHANCERY. paid or tendered. The answer alleges a tender, but there is no proof of it, and it cannot of course be assumed without proof. The complainant is not suing at law for the recovery of the land, but in equity for the payment of the money, upon the ground, that the payment cannot be enforced at law, in con- sequence of the insolvency of the company. He has forborne to institute these proceedings until the road is finished, and valuable and expensive improvements are made upon the prop- erty ; and I, therefore, am of opinion ; that in equity, he is entitled to no more than a decree for a payment of the sums awarded him by the jury, with interest from the period of the confirmation of the inquisitions by the court. A decree will be signed for that purpose, payable out of the revenues of the company, within some reasonable time, and in default thereof, the revenues will be sequestered until the claim is paid. The complainant is, also, I think, entitled to his costs. It may be further observed in reference to the prayer of the bill, that the complainant may be restored to a possession of a part of the land condemned, that if any such right exists, under the circumstances of this case, his remedy is by action of eject- ment, and not by bill in equity. CHARLES A. WATERS, ~\ vs. DECEMBER TERM, 1847. CHARLES HOWARD AND WIFE ET AL. ) [SPECIFIC PERFORMANCE ELECTION.] UPON a bill for the specific performance of a contract, the court must entertain no reasonable doubt of the existence of the contract, and be satisfied that it is one, which, looking to what is just and reasonable, ought to be enforced. The specific performance of contracts in equity, is not a matter of absolute right in the party, but of sound discretion in the court ; and unless the court is satisfied that the application is fair, just and reasonable in every respect, it will refuse to interfere, but leave the party to his remedy at law for compen- sation in damages. In contracts relating to personal property, unless it can be clearly shown, that adequate compensation cannot be given by an action at law, chancery will not. interfere. WATERS VS. HOWARD. 113 If the interest which a creditor takes by the will, is not co-extensive with, or of the same nature of, that to which he is entitled from the testator as his debtor, he will be entitled to both interests. The degree of intention necessary to raise a case of election must plainly ap- pear upon the face of the will, but the court is not to disregard what amounts to a moral certainty of the intention of the testator. Though evidence debars the will, will not be admitted to prove or disprove such intention, there is no valid objection to such evidence to show the state and circumstances of the property. A party cannot take a benefit under a will, and at the same time defeat its pro- visions. [This case originated in the equity side of Baltimore County Court, and was thence transferred to this court. The bill was filed by Charles A. Waters and Ann Rebecca, his wife, (since deceased,) for the specific performance of a contract, entered into by the late Charles Waters, (grandfather of the said Charles A.) previous to, and in consideration of the intermarriage of the latter with the said Ann Rebecca, to purchase for the complainants, on the consummation of the in- tended marriage, a farm, to be fully stocked ; to pay all the debts of the said Charles A., existing at the time of the marriage and to furnish them with adequate means of subsistence during the first year thereafter. The bill stated, that in part perform- ance thereof, the grandfather shortly after the marriage, purchased a farm in Baltimore county, containing about 189 acres, and put the complainants in possession, having partly stocked it, and was about to pay the debts of the said Charles A., amounting to about $2000, when he was prevented by a sickness which caused his death. The farm was only partly stocked and no provision had been made for the complainant's support during the year ensuing their marriage. Elizabeth A. Howard and Rebecca A. White, granddaughters of the deceased and sisters of Charles A. Waters, together with their husbands and infant children, and Freeborn G. Waters, the trustee of the deceased, were made parties. The answers admitted the purchase of the farm by the deceased, and the occupancy thereof by the com- plainant after his marriage, but denied all intention on the part of the deceased, to put it at his control and disposal or to give 10* 114 HIGH COURT OF CHANCERY. him a larger share of his estate than his other grandchildren, as he had clearly expressed his opinion to that effect. That by so doing, the object of the deceased, which was to afford to his " grandson and wife a competent support from the use of the farm, would have been defeated ; and that the death of the wife, which happened in January, 1847, determined the right to a con- veyance, if any existed. The promise to pay the debts above- mentioned, they insisted, was made upon condition of the said Charles A. reforming his habits, alleged to be extravagant, which had not been complied with ; that if any such agreement was made, it was satisfied by the provision (hereinafter des- cribed) in the will of the deceased, for his grandson and his wife and children ; that, said property was intended by the tes- tator to be disposed of by his will, and that the complainant by electing to take there under, could no longer claim the same, in- dependent of the will. The statute of frauds was also pleaded in bar of the relief prayed. By the testator's will, all the residue of his estate, after certain small legacies, was devised in trust to F. G. Waters, to hold the income, interest, rents and profits of one-third part of said residue, for the use of the complain ant during his life, such income, &c., to be paid to him from time to time as they might accrue ; and after his death to his children in fee, and failing children, to the other two grand- children of the testator, to whom the remaining two-thirds were in like manner devised. It appeared from agreements of coun- sel, that the property in dispute was purchased from Benjamin Moore, on the 17th of February, 1846 ; that the whole estate of the testator, including this property, was worth nearly $150,000, and the property in dispute worth about $9000. A number of letters were returned with the commission, and the depositions of some witnesses were taken. The letters were written by the testator to his grandson and to the lady whom he afterwards married, in which he -spoke of buying a farm and establishing them upon it, and in one of them, speaking of his grandson's debts, he said, "they mustbe paid." The ground taken in the bill was, that the alleged contract was made in consideration of the subsequent marriage, and was, therefore, for a valuable con- WATERS VS. HOWARD. 115 sideration. The existence of this contract was denied by the answers, which insisted, that the testator designed giving them the use only of the property ; this position being based upon the various acts of the testator, and his declarations, oral and written.] THE CHANCELLOR: This question can of course only be determined by a careful examination of the evidence, and after having read it with much attention, I find it, to say the least, very questionable, whether the elder Mr. Waters did mean to pass to the complainants, or to the surviving complainant, in any event, such a title to the property in controversy as is sought to be enforced by this bill. Looking to the whole evidence, written and oral, I am strong- ly inclined to the opinion, that the ground taken by the defence is the true one, and that the purchase of this farm, and the plac- ing the grandson upon it, was intended for the double purpose, of given him the means of earning a present support, and as an experiment, by which the grandfather hoped to wean him from his extravagant habits. Any other supposition would subject the grandfather to the imputation of having practiced upon his grandson and wife, the grossest imposition. If, as thecomplain- ants say, they were induced to marry upon the faith of the en- gagement of old Mr. Waters, fully disclosed, to give them the title to this farm, and to perform the other stipulations set up in the bill, and he, immediately after the marriage, took the title to himself, he was guilty of a degree of cruelty and deception towards them wholly inconsistent with that affection and regard for their welfare which appears upon the face of all his letters, and by the whole evidence. The marriage took place on the 4th of February, 1846, and the deed from Moore to the elder Mr. Waters was executed on the 17th of the same month and year. Now, can it readily be believed, that this old gentleman would have entrapped these young people into getting married by an agreement to make them the owners of this property, and then in thirteen days from that time shamefully violate his en- gagement by taking and keeping the title in himself? Such a HIGH COURT OF CHANCERY. supposition is irreconcilable with the nature of his feelings and relations towards them, and to be credited, must be strongly supported by evidence. Much stress has been laid by the complainant's counsel upon the case of Smith et al. vs. Gittings etal., decided by the Court of Appeals at December term, 1845. That case decides, what is believed to have been well settled before, that marriage is a valuable consideration, and that a promise made in consideration of marriage, cannot be revoked at the will of the party who made it. But the evidence in that case, as it appears to me, of the promise, was of a far more conclusive character, than in this. Indeed, in that case, there could be no doubt, looking to the declarations and acts of Mr. Dugan, both before, and subsequent to the marriage, that the property in question be- longed to his daughter Mrs. Smith, and her children, and there was not a single act or declaration inconsistent with that view of the case. In this case, as I have already observed, there is much evidence, leading to a different conclusion, and various considerations of prudence, calculated to deter the grandfather from placing this property at the disposal of his grandson. Now, this being a case in which the complainants call upon the court to interfere in their favor, by enforcing the specific ex- ecution of a contract, they must come before it with a much, stronger case, than if they were acting defensively, and merely resisting such an application made by the adverse party under the circumstances of this case, the court must entertain no rea- sonable doubt of the existence of the contract, and be satisfied that it is one, which looking to what is just and reasonable, ought to be enforced. 2 Story, Equity, sec. 769 ; Seymour vs. Delancey, 6 Johns. Ch. Rep., 222. But there are other grounds upon which, in my opinion, the relief prayed for in this case must be refused. It is establish- ed by the cases, and by writers of the highest distinction, that the specific execution of contracts' in equity is not a matter of absolute right in the party, but of sound discretion in the court, and that unless the court is satisfied, that the application to it for this extraordinary assistance, is fair, just and reasonable, in WATERS VS. HOWARD. 117 every respect, it will refuse to interfere, but leave the party to his remedy at law, for a compensation in damages. 2 Story, Equity* sees., 769, 770; Carberry vs. Tannehill, 1 Har. if Johns., 224; Seymour vs. Delancey, 2 Johns. Ch. Rep., 222. Now, what is the nature of the application in the present case, and how is the court to afford the redress which is asked of it? The promise charged in the bill, and established by the evi- dence if indeed any promise is shown was to the surviving complainant and his late wife, then Miss Somerville, and was unquestionably intended, if made at all, to provide for them, and their children, if any should be born, a support. But the wife is dead, and there was no issue of the marriage, and the sur- viving husband now claims to have this contract specifically enforced for his exclusive benefit, although he has received, in another form, and by the will of his grandfather, property to a much larger amount. The contract asserted in the bill, it will be observed, is not merely a contract to convey title to a cer- tain parcel of land, but embraces an engagement to stock it to pay the debts of the grandson and support him and his family, for the first year after his marriage. Now, this contract, if enforced at all, is, as is said in the cases, to be enforced, ex vigore, and with unmitigated severity. It must be carried into execution in all its parts, though a part of the consideration has unquestionably failed, by the death of the wife, childless ; as it is impossible to suppose, if the grandfather ever did make such a binding engagement as is contended for, that the wife and children were not in his contemplation, and constituted, in part at least, the motive for his promise. It seems to me eminently proper, that a case like this, should be sent to law, where, in the language of Chancellor Kent, in Seymour and Delancey, "relief can be afforded in damages, with a moderation agreeably to equity and good conscience, and where the claims and preten- sions of each party, can be duly attended to, and be admitted to govern the assessment" and in this case, there is a peculiar reason why the powers of the court should not be exerted in the form, in which it is applied to. The contract we have seen, is not confined to real estate, but extends to goods and chattels, 118 HIGH COURT OF CHANCERY. and the payment of debts, and it is certainly a general rule, that with regard to contracts respecting goods, and other things of a merely personal nature, this court will not decree specific per- formance, except in cases in which a court of law could not give adequate compensation in damages. Unless, therefore, in contracts relating to personal estate, it be clearly shown, that adequate compensation cannot be given by an action at law, chancery will not interfere. 2 Story, Equity, sees., 716, 717, 718. This court, then, looking to all the circumstances of this case, seeing that in the state of things which now exists, it would be impossible to frame a decree which would do justice as between these parties, being moreover convinced, that the leading motive which induced the grandfather to make the promise if he did make such promise can no longer operate, I am not disposed to carry this alleged contract into execution, but will leave the party to his remedy at law, where the jury can afford him the relief in damages, which they may, under all the circumstances, think him entitled to. If this court should decree the specific performance of this contract, and direct the title to this property to be conveyed to the complainant, so as to give him the dominion over it, I am persuaded, I should be doing that which his grandfather never intended, and for which, as I think, there is no sufficient justi- fication in the proof ; for not a single witness has spoken of the nature or quality of the title which the complainant was to re- ceive and if we are to judge from the will of his grandfather, dated but two months after the marriage, and the character of the interest which the complainant takes under it, there is the strongest reason for thinking, that the absolute transfer to him of the title to this property, would be most repugnant to the intentions of the grandfather, then or previously entertained. The Chancellor stated it as his opinion, looking to the nature and value of the property in dispute, compared with the devise to the complainant by the testator, that the contract, if establish- ed, could not be considered as satisfied by the subsequent de- vise ; and referred to Roper on Leg., 46, 48, to show that if WATERS VS. HOWARD. 119 the interest which the creditor takes by the will, is not ejusdem generis, not being co-extensive with, or of the same nature of that to which he is entitled from the testator, as his debtor, the legatee will be entitled to both interests. But although, in my opinion, the interest which this com- plainant takes under the will of his grandfather cannot be re- garded as a satisfaction of his claim founded upon the alleged contract, I yet think the will puts him to his election, and that he cannot claim under the will and under the contract also. There can be no doubt that the degree of intention, neces- sary to raising a case of election, must plainly appear upon the face of the will, but then the court is not to disregard what amounts to a moral certainty of the intention of the testator. McElfresh vs. Schley and Barr, 2 Gill, 181. And though evidence dehors the will, will not be admitted to prove, or disprove, such intention, there seems to be no valid objection to such evidence to show the state and circumstances of the property. Judd vs. Pratt, 13 ves., 174; 2 Roper on Leg- acies, 390. Now, can there be a doubt that the testator did intend to dis- pose of this property as his own. He took the deed to himself on the 17th of February, 1846, and on the 2d of April follow- ing, he made his will, by which he devised to the trustee, his whole estate of every kind and description. I throw out of riew his declaration to Mr. Poe, which has been excepted to, but I suppose the fact of his taking the deed to himself is evi- dence, to show the state arid circumstances of property. Now, is it not morally certain, that the testator intended to dispose of his will of this property, and is not that intention ap- parent upon the face of the will itself, especially when taken in connection with the state and circumstances of the property. He unquestionably had the legal title, and his intention, as it appears to me, might be as well disputed to dispose of any other part of his estate as this. There is another intention manifested upon the face of this will, which would be frustrated by the success of this attempt on the part of the complainant ; and that is to place the grand- 120 HIGH COURT OF CHANCERY. children on a footing of entire equality. It is perfectly clear, that the testator intended to give to each the same precise in- terest in his estate, in regard alike to quantity and quality, and to permit this arrangement to be disturbed, would be to defeat a cherished object of the testator. The rule as assented by the Court of Appeals in the case of McElfresh vs. Schley and Barr, is, "that a man shall not take a benefit under a will, and at the same time defeat the provi- sions of the instrument," &c., and, as according to my view of this case, the complainant is now attempting, by this bill, to violate this rule, I should on this ground, if none other existed, refuse him relief. [The decree in this case was affirmed on appeal.] JAMES OWINGS, vs. WILLIAM BALDWIN AND GEORGE WHEELER. DECEMBER TERM, 1847. [PART PERFORMAKCE SPECIFIC EXECUTION.] THERE can be no doubt, that if a party has succeeded in proving a contract, and in showing that it has been in part performed, he is entitled to have it specifically executed. This right is founded, not upon the notion that part performance is a compli- ance with the statute of frauds, but upon the ground, that it takes the case entirely out of the statute. In order to take a case out of the statute, on the ground of part performance, the plaintiff must make out, by clear and satisfactory proof, the existence of the contract, as laid in the bill, and the act of part performance must be of the identical contract set up by him. It is not enough that the act is evidence of some agreement : but it must be un- equivocal and satisfactory evidence of the particular agreement charged in the bill. Where delivery of possession is relied upon, it is indispensable that such deliv- ery to, and taking possession by, the defendant, is referrable to the contract alleged in the bill, and not to a distinct or different title. OWINGS VS. BALDWIN AND WHEELER. 121 [The bill in this case alleged that in the spring of 1845, the defendants agreed to purchase of the complainant, certain lands in Howard district, on which there were erected a cotton factory and other improvements, for the sum of $20,000, of which $5000, were to be paid in cash on the delivery of pos- session, fixed for 1st June, 1845, $1666 66|, in twelve months thereafter, with interest on the unpaid balance, and the residue in equal instalments of 5, 10, and 15 years, with interest on the balances unpaid ; privilege being given to pay the whole before if desired. No written agreement was alleged to have been made by the parties, but a memorandum was filed with the bill, said to have been drawn up by the complainant, and acknowledged by the defendants to be a true statement of the terms agreed upon. The bill stated, that possession had been delivered on the 1st June, 1845, under the agreement ; charged the defendants with a refusal to comply with the terms of sale ; and prayed for a specific performance. The joint answer of the defendants, denied their acceptance of the terms contained in the complainant's exhibit, and a paper was filed therewith differing in some respects from that of the complainant, but agreeing as to the price and times of payment, which the defendants said had been prepared by them, and which the complainant had requested them i.? keep, as a correct statement of the offer made by him. The answer stated that the defendants were at first willing to accept this offer, but difficulties presenting themselves, as to the complainant's title, and wishing to avoid loss of time, they agreed to take possession of the premises at once, and pay to the complainant a rent of $900, until he should be able to give them a clear undisputed title thereto ; but they expressly denied that this arrangement was made in pursuance of the original agreement. This position was sustained by the testimony of H. N. Gam- brill, and Neilson Poe, the former of whom said, "after the title was ascertained, or thought to be defective, and before they (the defendants) entered into possession, Mr. Owings, (the plaintiff) agreed that they should take possession of the property, and pay a rent at the rate of $900 a year, I believe, 11 122 HIGH COURT OF CHANCERY. until the right was rendered perfect, which, it was then believed, would be six weeks from the time they took posses- sion, according to Mr. Owings' promise." And in -another place : "all parties were apprised of the alleged defect in the title, and possession was given under the provisional arrange- ment for a tenancy." The latter, who had conducted the negotiations for the defendants, said : "the object of this arrangement was, to secure to them, (the defendants,) the right to withdraw from the property, without being hampered by it as purchasers, in case the title could not be perfected in a rea- sonable time." He also said, that in consequence of complain- ant's failure to dispel the cloud which enveloped the title, the defendants, prior to February, 1846, requested him to notify the complainant of their intention to quit, which he did. No evidence was adduced by the complainant to prove the accept- ance by the defendants of the terms of his alleged proposal, or to show, that their entry into possession was done in pur- suance of this arrangement, if proved, or in part performance thereof:] THE CHANCELLOR : This, therefore, is a bill, to enforce the specific performance of a parol agreement in relation to lands ; and the complainant rests his right to a decree upon the ground of a part perform- ance of the agreement ; and there can be no doubt that if he has succeeded in proving an agreement ; and in showing it to have been in part performed, that he is entitled to have it specifically executed. Moale vs. Buchanan et al. 11 G. 'Sf J., 314. This right is founded not upon the notion, that part perform- ance is a compliance with the statute of frauds; but upon the ground, that such part performance, takes the case entirely out of the statute. The part performance relied upon in this case, is the delivery of possession, and it is indispensable that such delivery to, and taking possession by the defendant, is referrible to the contract alleged in the bill, and not to a distinct, or dif- ferent title, ib. 323. OWINGS VS. BALDWIN AND WHEELER. 123 And, it is not only necessary to take a case out of the stat- ute, that the acts done should be clear, and definite, and referri- ble exclusively to the contract sought to be enforced, but the contract should also be established, by competent proofs, to be clear, definite, and unequivocal in all its terras. If, says Mr. Justice Story, "the terms are uncertain, or ambiguous, or not made out by satisfactory proofs, a specific performance will not (as indeed upon principle it should not) be decreed." For, as observed by the same judge, "one of the most important objects of the statute, was, to prevent the introduction of loose and indeterminate proofs, of what ought to be, solemn con- tracts." 2 Story's Equity, sec. 764. It was said by Chancellor Kent, in the case of Phillips vs. Thompson, 1 Johns. Ch. Rep., 131, that, to entitle a party to take a case out of the statute, on the ground of part perform- ance of the contract, he must make out by clear and satisfac- tory proof, the existence of the contract as laid in the bill, and the act of part performance, must be of the identical contract set up by him. It is not enough, that the act is evidence of some agreement, but it must be unequivocal and satisfactory evidence of the particular agreement charged in the bill. The act must be such as the party would not have done, unless on account of that very agreement, and with a direct view to its performance. There must be no equivocation and uncertainty in the case. In the subsequent case of Parkhurst vs. Van Cortlandt, same volume, page 284, the Chancellor remarked, that the doctrine of Phillips vs. Thompson, was undoubtedly the sound doctrine, though there may be occasionally a case, or dictum, which seems to impair it, and that the tendency of the latter cases, is to prefer giving the party compensation in damages, instead of a specific performance. In this case, the bill alleges, that the possession was given, and taken, in part execution of the agreement ; but the answer explicitly denies this, and states, that the possession so deliver- ed, and received, is to be referred to an entirely different agree- ment. The question, therefore, is, has the complainant sue- 124 HIGH COURT OF CHANCERY. ceeded in proving, by clear and satisfactory evidence, not only the existence of the contract, as laid in his bill, but has he shown a part performance of that identical agreement ? It would seem to be clear in this case, that the contract of sale about which these parties were negotiating, was not intended to rest in parol. It was designed to have been reduced to writing, as is shown by the two papers exhibited with the bill and answer ; and it is not easy to understand, if the terms were all adjusted, and no impediment existed to the complete consummation of the contract, why it was not in fact reduced to writing. The -Chancellor after alluding to the denial by the defend- ants, as above stated, of their alleged acceptance of the terms of the agreement as reduced to writing, by the complainant, and to the above account of the transaction, as given by them, said : now, unless this is true, or unless some difficulty existed to the consummation of the agreement, it is not easy to imagine a plausible reason, for the failure of the parties to put their con- tract in the form which the statute requires. An'd apart from the inference thus arising against the completion of the con- tract, he said he thought there was a want of such clear evi- dence of its terms, and of the act of part performance, as would alone justify the court in decreeing a specific execution. The contract to be proved, said he, must be the identical contract charged in the bill, and this must be the same with the one partly performed ; and as Chancellor Kent says, there must be no equivocation or uncertainty in the case ; the plaintiff cannot get the relief which he asks for, unless he has clearly established the contract as charged, and also a part per- formance of the same contract. The bill in this case, charges a particular agreement, the terms of which were reduced to writing, and though not signed by, were, as alleged, exhibited to, and approved by the defendants. And it also charges a part performance of this agreement. The answer positively denies both the agreement and the act of part performance, and exhibits another paper, varying in some respects from the paper filed by the complain- OWINGS VS. BALDWIN AND WHEELER. 125 ant, which they say, correctly sets forth the terms upon which they were willing to purchase, when the title could be rendered unexceptionable. Now, if a contract of purchase, was in fact made, it is impossible to determine from the evidence, what the terms were ? Did the parties agree upon the terms of the pa- per exhibited by the plaintiff, or by the defendants ? Is there in truth, a single witness, who undertakes to prove all the terras of the alleged contract ? Some of them certainly do speak of particular terms, but upon a careful examination of the depositions, I do not find a single witness who professes to know all the terms, and stipulations of the agreement ; and, especially, there is no witness who has undertaken to prove the identical agreement charged in the bill. There can be no doubt, that, the plaintiff has succeeded in proving some agree- ment ; and indeed, the answer admits, that some agreement was made. But this, Chancellor Kent says, is not sufficient ; the particular agreement charged must be proved, as must the part performance of the same agreement, or the statute will be a bar. And the plaintiff, has not only, as I think, failed in proving the agreement laid in his bill, but he has also failed in his proof of the act of part performance. The bill alleges, that possession was delivered by plaintiff, and received by the defendants, according to the form and effect of the agreement, as charged. This averment is likewise flatly denied, and the possession which the defendants admit they took, is referred to a totally different agreement. The burden of proof in regard to the alleged act of part performance of the contract, as well as of its alleged existence, is of course upon the plaintiff, and the weight of the burden is most essentially in- creased by the positive denials of the answer, in direct response to the bill. Has the plaintiff been sucessful in proving such an act of part performance of the contract, as he has stated in his bill ? An act,*in the language of Lord Hardwicke, "as could be done with no other view, or design, than to perform the agree- ment;" and "with a direct view to its performance?" I think not. There is not a single witness who speaks of the terms upon 11* 126 HIGH COURT OF CHANCERY. which the possession, (the act of performance relied upon,) was taken, or who can, or does, undertake to say, that it was taken in part performance of the agreement, which the plaintiff has charged in his bill. The answer, therefore, is uncontra- dicted upon this point by the evidence. The Chancellor then referred to the extracts, from the testi- mony of H. N. Gambrill, arid Neilson Poe, inserted above, to show that the possession was neither delivered, or received, in part performance of this contract ; and in relation thereto, said : It seems to me, therefore, perfectly obvious, that the act relied upon here as a part performance of the contract charged in the bill, is not an act "unequivocally referring to, and resulting from that agreement," but is an act which it is apparent from the evidence, must be referred to a different agreement, and consequently it will not take the case out of the statute of frauds. The Chancellor said, that insomuch as the plaintiff had not, as he thought, succeeded in proving the contract stated in his bill ; or an act, in part performance of that particular contract ; he deemed it unnecessary to consider the question, whether the title was such an one as would be forced upon a purchaser. With regard to the rent, which by the statement in the answer the defendants were to have paid, he said, the complainant was not even entitled to a decree to that extent, first, because he makes no such claim in his bill and secondly, because he has adequate remedy at law in an action for use and occupa- tion. [This case was affirmed on appeal.] DOUB VS. BARNES. 127 JOHN DOUB f DECEMBER TERM, 1847. ABRAHAM BARNES ET AL [EQUITY WAIVER OF JUDGMENT LIENS EVIDENCE MULTIFARIOUSNESS USURY PRACTICE.] THE defendants conveyed, by deed, a large amount of real and personal prop- erty, to trustees, in trust, to sell the same, and out of the proceeds to pay the claims of their creditors, without priority or preference, except as the same might exist by law. The trustees, in execution of their trust, sold parcels thereof to the complainant and others. At the time this deed was executed, there were unsatisfied judgments, to a large amount, against the grantors, upon some of which, writs of scire facias were issued, and fiats rendered against the original defendants in the judgments, and the terretewnts, the purchasers from the trustees, and upon these fiats writs of fieri facias were issued and laid upon the lands purchased by the complainant. Upon a bill to restrain proceedings upon these executions, it was HELD That if the judgment creditors assented to the deed of trust, and by their con- duct induced the complainant and others to become the purchasers of the land bound by their judgments, and to believe that they would look to the trustees for the .payment of their claims, and not to their judgment liens, such conduct would furnish a valid equitable defence. To allow the judgment creditors, after such a course of conduct, to enforce their judgments against the purchasers, would be to permit them to perpe- trate a fraud upon the latter. Upon such a state of facts, the purchasers would not be bound to see to the application of the purchase money. A defence, founded on such circumstances, can only be rendered available in a court of equity, on the ground of fraud. An injunction can only be dissolved by positive contradictory averments in the / answer ; and, an answer founded upon hearsay is not sufficient to remove the! complainant's equity, though resting upon information derived from others, \ it denies the facts out of which that equity arose. Upon motion to dissolve, credit can only be given to the answer, in so far as it / speaks of responsive matters, within the personal knowledge of the defend-' ant, and unless, so speaking, the equity of the bill is sworn away, the injun tion cannot be dissolved. Although an answer, founded upon hearsay, is not to be treated as an answer' resting upon personal knowledge, it is sufficient to put the complainant uponV the proof of the averments of his bill. An attorney either in law or in fact, would not have the power to bind his priii- " cipal by an agreement to surrender his lien upon the land, and to look ex- clusively to the trustees, without an express authority for that purpose. Where a party executing a deed made' a formal proposition to his creditors, in writing, which, some accepting, the trust was created, and upon a dividend being made, a creditor received from the trustees an equal share with the (> 1 128 HIGH COURT OF CHANCERY. rest such creditor must be considered as affirming the deed, and, of course* bound by it. But where a deed, in which all legal priorities were preserved, was executed, without any proposition made to creditors, or any previous consultation or agreement with them, a creditor, by receiving money from the trustees in part payment of his judgment, does not thereby render the provisions of the deed binding upon him, nor waive the lien of his judgment. A party who has assigned a judgment, without recourse, except as to his right to assign and transfer the same, is a competent witness for the assignee, in a suit to enforce the judgment ; the warranty extending only to the right to make the assignment. Where an original and amended bill merely unite two cases of complaint grow- ing out of the same transaction, affecting ^he same question of right, being the right of the complainant to relief against the judgment of the defendant, they cannot be regarded as obnoxious to the objection of multifariousness. A party who has paid a judgment, founded on a usurious debt, may ask to be relieved as to the amount paid beyond what was legally due and recoverable ; and this may be done without paying or offering to pay any thing, because the application for relief is predicated upon the averment, that too much has been already paid. A purchaser from the mortgagor may avail himself of the defence of usury, to defeat the action of the assignee of the mortgagee. If the assignors, in this case, might require the defendant to repay the excess which he may have received over hisYlebt and legal interest, the assignee, the complainant, who claims under and through them, may do so likewise. [On the llth of October, 1839, Abraham Barnes, being in- debted in various sums of money, and Melchior B. Mason and John Thompson Mason, being bound with him for a portion of his debts, they conveyed, by deed of that date, a large amount of real and personal estate to William Price and David G. Yost, in trust, out of the proceeds and avails thereof, to dis- charge the claims of their creditors, without priority or prefer- ence, except as the same might exist by law. The trustees, in execution of their trust, proceeded to sell parcels of said trust estate to divers persons, and among others to Doub, the com- plainant, to whom they sold, on the 25th of March, 1840, a portion of the estate of John Thompson Mason, conveyed to them as aforesaid, for a sum exceeding $12,000, and on the 21st of October, 1843, another portion of the same for upwards of $900. At the time the deed of trust was executed, there was a large amount of unsatisfied judgments against Barnes individually ? DOUB VS. BARNES. 129 and also against him and the Masons collectively ; and in the year 1844, a number of them being still unpaid, writs of scire facias^ were issued upon them, against the original defendants and the terretenants, and at March term, 1845, of Washington County Court, fiats were entered upon them. A number of these judgments were subsequently entered for the use of Mar- garet A. Mason, with whose separate trust estate they had been purchased, by her husband and trustee, John Thompson Mason, and upon ihejiats thus rendered, and marked for her use, writs of fieri facias were issued to March term, 1846, of Washington County Court, and laid upon the land purchased by Doub, as above mentioned, from said Price and Yost. The principal object of this bill was to prohibit proceedings on these executions, and an injunction for that purpose was granted by the late Chancellor on the day the bill was filed. This injunction was afterwards upon hearing, dissolved, and on an appeal taken, the order of dissolution was, at the June term, 1846, of the Court of Appeals, affirmed as to Lynch and Craft, two of the judgment creditors, but reversed as to John Thompson Mason and wife, and the cause was remanded to this court for further proceedings. An order reinstating it having been passed, and proof taken, the cause was argued by coun- sel and submitted to the Chancellor, for his decision. The other facts in this case, as elicited by the pleadings and substantiated by the evidence, their effect upon the merits of the questions raised, and what those questions were, will ap- pear from the opinion of the Chancellor, who, after stating the nature of the case, proceeded as follows :] THE CHANCELLOR : The Court of Appeals in their opinion upon the question be- fore them, make a statement of the equity of the complainant's bill, and the judgment of this court upon the matters now to be decided, must turn upon the conformity of the proof with the facts set forth in the bill, upon the existence of which, in the view of the appellate court, the complainant's right to relief depends. 130 HIGH COURT OP CHANCERY. Such must certainly be the case with regard to all the ques- tions settled upon the former appeal. The facts alleged, then, which constitute the complainant's equity, are, 1st, That after the judgments were rendered against Barnes and the two Masons, they executed a conveyance to the trustees, Yost and Price, on the llth of October, 1839, of all their real estate in Washington county, and a large personal estate, in trust, to pay their debts according to their legal priority the said trustees being the attorneys of the judgment creditors. 2d, That the existence of said deed was made known to said judgment creditors shortly after its execution, and that they acquiesced in the assumption by the trustees of control over the property conveyed, and suspended all proceedings upon their judgments. 3d, That by acts indicative of their intention to look for payment of their claims to the proceeds of sales which should be made by the trustees, they gave credit to them, and enabled them to make more advantageous sales for the cred- itors than could otherwise be effected. 4th, That the com- plainant was persuaded to make payment, from a belief, well founded in the conduct of the creditors, that they would look to the trustees, and only to the trustees, for payment of their claims out of the proceeds of the sales to be made by them. The court, after thus stating the equity of the bill, proceed to show what sort of a case the plaintiff must prove, to entitle him to relief; and in doing so, say that, "if the judgment creditors assented to the deed of trust, and by their conduct induced the complainant, and others, to become the purchasers of the land bound by their judgments, and to believe that they would look to the trustees for the payment of their claims, and not to the liens created by their judgments, that such conduct would furnish a valid equitable defence. To allow the judgment creditors, after such a course of conduct to enforce their judgments against the purchasers, would be to permit them to perpetrate a fraud upon the purchasers. The obvious consequence of such a procedure on the part of the judgment creditors, would be to lull the pur- chasers into a false security, and to induce them to believe that a title would follow the payment of the purchase money. Upon DOUB VS. BARNES. 131 the state of facts alleged, it would not be necessary for the pur- chasers to see to the application of the purchase money ; credit being given to the trustees, and they being known to be alone looked to for the payment of the judgments by the proceeds of sale." And the court go on to say, that a defence, founded upon the circumstances stated, could only be made available in a court of equity upon the ground of fraud. [Passing over the judgments of Lynch and Craft the Court of Appeals having decided in their favor the Chancellor con- tinued:] The attention of the court is now confined to the judgments which have been assigned to, and marked for the use of Mar- garet A. Mason, short copies of which are to be found in the complainant's exhibit C, filed with his bill ; and the question is, whether these judgment creditors, the parties who assigned to her, did assent to the deed of trust to Price and Yost, and by their conduct induce the complainant and others to become purchasers of the lands bound by the judgments, and to believe that they would look to the trustees for the payment of their claims, and not to the liens created by them ? In other words, that these judgment creditors, knowing and assenting to the terras of the deed, were willing to abandon wholly their liens on the lands conveyed by it, and to look ex- clusively to the trustees ; and by their conduct, indicative of such willingness, the complainant and others were induced to purchase. This, the Court of Appeals say, would constitute an equita- ble defence against the judgments ; as to permit them to bA enforced under such circumstances would be to tolerate the per- | petration of a fraud against the purchasers. Upon the bill which made this case, the complainant displayed an equity which entitled him to an injunction, which could only be dis- solved by positive contradictory averments in the answer ; and as the answer of John Thompson Mason was founded upon hearsay, and not personal knowledge, it was not regarded as sufficient to remove the complainant's equity ; though, resting upon information derived from others, it contained denials of 132 HIGH COURT OF CHANCERY. the facts out of which the equity arose. Upon the motion to dissolve, credit could only be given to the answer in so far as it spoke of responsive matters, within the personal knowledge of the defendant ; and unless so speaking, the equity of the bill was sworn away, the injunction could not be dissolved. But the case is now before this court for final hearing, upon bill, answer and evidence ; and, although an answer founded upon hearsay, though denying the complainant's equity, is not to be treated as an answer resting upon personal knowledge, it is certainly sufficient to put the complainant upon the proof of the averments of his bill. And the question, therefore, is, has he succeeded in establishing by evidence those averments, upon which his title to the aid of this court depends. With respect to the judgment at the suit of William McKim, it is admitted by the solicitor of the complainant, that he has made no defence, and therefore as to that, the injunction must be dissolved. And with regard to the judgment at suit of Brooks and Hotch- kiss, the only attempt to make out an equity against it, is the production of a receipt signed by D. G. Yost as their attorney, to the trustees for $200, in part payment of the judgment, on the 8th of July, 1840. This receipt of a part of the money from the trustees, and the delay and forbearance to enforce payment of the residue, is thought to afford a sufficient foundation for interfering, as against these parties, all those circumstances which, in the opinion of the Court of Appeals, would make it fraudulent to allow them now to proceed to enforce their liens against the land. I am not prepared to concur in this reason- ing, and therefore as to this judgment, also, the injunction must be dissolved. The argument before me was principally directed against the Judgments at suit of John Trimble and John W. Brown, which appear to have been assigned, in the first place, to the Bank of Baltimore, and afterwards by the bank to Mrs. Mason, and the judgments at suit of Henry Tiffany, and William Tiffany and others ; which were by them also assigned to her. With reference to the judgments at suit of Trimble and DOUB VS. BARNES. 133 Brown, which passed to Mrs. Mason, through the Bank of Baltimore, much reliance is placed by the complainant's solic- itor, in his effort to show that to let them loose against the land purchased by him, would be to enable the holder of them to perpetrate a fraud upon a correspondence between John M. Gordon of Baltimore, and Yost, one of the trustees he, Yost, being also the attorney of some of the judgment cred- itors. Mr. Gordon was not an officer of the bank, but a practicing lawyer in the city of Baltimore, though not an attorney of Washington County C ourt, in which the judgments were ren- dered. The correspondence between him and Mr. Yost covers a period from the fall of 1840 to 1844, and after a careful read- ing of it, and an attentive consideration of the argument of the complainant's counsel, founded upon it, I am unable to deduce from it the conclusion, without which the assignee cannot be denied the benefit of her judgments. Mr. Gordon, it will be observed, was not an officer of the bank. He was its attorney, either at law, or in fact, and in neither capacity can it be successfully maintained, he would have the power to bind his principal by an agreement to sur- render its lien upon the land, and look exclusively to the trus- tees, without an authority for that purpose. The opinion of the Court of Appeals in this case, with reference to the judgments of Lynch and Craft, is conclusive upon this ques- tion. That Mr. Gordon was not authorized to agree to the pro- visions of this deed, and did not in fact so agree ; nay, that he never saw it, nor was requested to give his consent to it as the attorney of, or on behalf of the bank ; and that he always look- ed to the payment of the judgments in the order of their priority, and as liens on the property ; is expressly stated by him in answer to the first cross interrogatory on the part of the defendant. An answer which the Chancellor thinks not at all inconsistent with the \vhole scope and tenor of the correspond- ence, and quite in harmony with the answer of the same witness to the complainant's second interrogatory in chief. 12 134 HIGH COURT OF CHANCERY. It is, therefore, thought, if this case was before a jury upon all the evidence, the inference that Gordon, with the authority of the bank, assented to the provisions of this deed, and agreed to give up the liens of the judgments, and look alone to the trustees for the payment of the money, could not be made. Neither can it be said, I think, that there was anything in the conduct of the bank, or of Mr. Gordon, in this correspond- ence, even assuming, in opposition to his evidence, that every letter from him was written under special directions from the former, which could have induced the complainant and others to become purchasers of the land, and to believe that recourse would only be had to the trustees for the payment of the money ; the liens created by the judgment being altogether abandoned. So far as the complainant himself is concerned, the principal purchase made by him was anterior to the commencement of the correspondence, and only a little more than five months from the date of the deed. With respect to that purchase, therefore, it seems impossible to say that he was influenced by the correspondence. And with regard to the last purchase, in October, 1843, there is no evidence that he ever saw the cor- respondence. Indeed, a portion of it, and some of the letters now mainly relied upon by the complainant, bear date after the purchase was made. Besides, as with regard to some of the judgment creditors, Lynch and Craft, and McKim, for exam- ple it is not pretended that anything was said or done by them to induce the complainant and others to purchase, or to lull them into a false security, there is no very good reason to believe that the purchasers looked to the conduct of the judg- ment creditors at all ; but, that they were governed by their confidence in the integrity and legal capacity of the trustees, duly to fulfil the trusts confided to them by the deed. If the purchasers, not relying upon this confidence, but adopting the precaution of ascertaining the assent of the judgment creditors to the provisions of the deed, and their willingness to abandon their liens, would not buy without such assent, it is not very probable that the objection would have been removed unless DOUB VS. BARNES. 135 all the creditors would come into the arrangement. And the circumstance that a portion of the creditors did not so assent, is evidence that the purchasers bought upon their faith in the ability of the trustees to assure them good titles, without the assent of the judgment creditors. For it is not to be sup- posed, if they required the assent of some, that they would have been satisfied with anything short of the assent of all ; and the assent of all they certainly did not procure. With re- gard especially to the complainant, there is, independently of inferential reasoning, strong grounds for supposing that his confidence in Mr. Yost, one of the trustees, induced him to rely exclusively upon his, Yost's, judgment, in regard to the title ; and that he was not acting upon impressions founded upon the acts of the judgment creditors. It has been already remarked, that the principal purchase made by the complainant was only a few months after the date of the deed, and, therefore, with respect to that purchase, no inference in support of it can be made from delay, or from sus- pension of proceedings on the part of the creditors ; though it is expressly stated by the Court of Appeals, that the rights of the creditors would not be prejudiced by such suspension, if they always looked to their judgments, and not to the deed of trust, for satisfaction ; and the evidence of Mr. Gordon is ex- plicit, that the bank never was asked to agree to the provisions of the deed, nor never gave him authority to do so, and that he always looked to the payment of the judgments in the order of their priority, and as liens on the property. I am, therefore, of opinion, that with regard to the judg- ments to which Mrs. Mason has acquired title from the Bank of Baltimore, the complainant has not succeeded in establish- ing the facts which, according to the opinion of the Court of Appeals, would entitle him to relief against them by injunc- tion. The next inquiry relates to the judgments at suit of Henry Tiffany, and William Tiffany and others, which were also as- signed to Mrs. Mason. It appears, that on the 8th of July, 1840, receipts were given 136 HIGH COURT OF CHANCERY. by Mr. Yost, who was the attorney of these creditors, for sums of money stated therein to have been received by him from the trustees in part payment of these judgments. And these pay- ments, it is said, have the effect of rendering the provisions of the deed of trust binding upon the creditors. The defendants, Mason and his wife, have excepted to the admissibility of these receipts, and it is by no means clear, that the exception is not well taken. But, assuming them to be competent evidence, upon what principle is it that they shall have the effect of de- priving the creditors of the lien of their judgments ? It does not appear in the first place, that the money thus receipted for by Yost, ever reached the hands of his clients, and nearly five years afterwards, vfhenjiats were rendered on writs of scire facias upon these judgments, no credit was asked, or given for these payments. And, in the next place, if the money was paid over by Yost to his clients, there is certainly no evidence to show that they knew that it arose from the proceeds of sales made by the trustees under the deed, which was only executed the Oc- tober preceding the payment. The case of Moale vs. Buchanan et al., 11 Gill fy Johns., 314, is relied upon to show, that a cred- itor who accepts a payment from trustees, must be considered a party to the deed under which they act, and of course bound by it. But that case is totally unlike the present. There, the party executing the deed made a formal proposition to his cred- itors in writing, which some of them accepting, the trust was created, and upon a dividend being made by the trustees, the creditor in question received an equal share with the rest. And upon this ground the Court of Appeals said he must be con- sidered as affirming the deed, and the contract upon which it was executed. But here the deed to Price and Yost was ex- ecuted without any proposition whatever being made to the creditors, or any previous consultation or agreement with them ; and by which all legal priorities were preserved ; and the trus- tees, consequently, in the discharge of their duty, were bound to extinguish the liens as they accrued. No dividends, therefore, have been or ought to have been struck among the creditors, but the claim of each paid according to its date. If, therefore, DOUB VS. BARNES. 137 the Messrs. Tiffany received the money in question from Yost, and knew that it was received by him from the trustees, they would have had a right to regard it as a payment growing out of their relative position as judgment creditors, and not on ac- count of any advantage secured to them by the deed. Their receipt, therefore, of this money, if they did receive it, with knowledge of the source from whence it came, (of which how- ever there is no evidence,) could not render it unconscientious in them now to insist upon the enforcement of their judgments, as the Court of Appeals say, would have been the case, if the creditor in the case of Moale and Buchanan had been per- mitted to proceed upon his judgment, after receiving dividends under the trust. I do not, therefore, think that an equity can be made out against these judgments, upon the footing of the receipts of Mr. Yost, either taken by themselves, or together, with the let- ters of the 27th of April, and 9th of June, 1843. Looking to the dates as well as the terms of those letters, I find it impos- sible to infer from them, those circumstances which the Court of Appeals have said must exist, to deprive the creditors of the rights secured them by their judgments. But, independently of all this, the Messrs. Tiffany have been examined as witnesses, and each declared that they did not mean, and never did agree, to accept the provisions of the deed, and surrender their liens as judgment creditors. It is true, they have been excepted to as incompetent wit- nesses, but looking to the terms of their assignment to Mrs. Mason, I cannot very clearly see what qualifying interest they have in the event of the present controversy. The assignment is without recourse to them, except as to their rights to assign and transfer the judgments. Their right to assign the judgments is one thing, but the rights which the assignee may assert under it is another ; and, therefore, it by no means follows, that the assignors would be responsible to the assignee if it should turn out, that any thing had been done by the former, prior to the assignment, which de- 12* 138 HIGH COURT OF CHANCERY. stroyed the lien of the judgment, and restricted the remedy of the holder of it to a claim upon the trustees. Surely the right to assign the judgment, for which right alone the assignors were to be responsible, could not be impaired by their agreement (if they made one) to be bound by the deed. The only breach of the contract on the part of the assignors, would be the want of a title to assign, and as it seems to me, no responsibility can attach to them because of any act of theirs by which the remedies for the enforcement of the judg- ment may be curtailed. Before they could be held liable upon this assignment, it must be shown that they had no title to make the assignment itself, and not that the judgment has been shorn of some of its attri- butes by any agreement made by the assignors. The authority to assign is one thing, but the legal effect and operation of the judgment, when assigned, is another and en- tirely different thing. It might, or might not, continue a lien upon the lands embraced in the deeds, but the waiver of the lien, if it has been waived, does not touch the right of the as- signors to make the assignment, to which right alone can the warranty be understood as extending ; the language of the as- signment being, "without recourse to me, except as to my right to assign and transfer said judgment." If this be so, the Messrs. Tiffany are competent witnesses ; and looking to their proof, there does not appear to be any ground upon which an equity against these judgments can be raised. But, as has been already remarked, even if the depositions of these witnesses are excluded, I do not think the complain- ant has succeeded in the attempt to deprive the holder of these judgments of the lien created by them, by establishing those facts which, according to the opinion of the Court of Appeals, are required to be shown for that purpose, and, therefore, as to them, also, the injunction must be dissolved. Having thus disposed of the case, so far as the injunction is concerned, it next becomes necessary to consider the questions in controversy between the complainant, and the defendant John Hanson Thomas. DOUB VS. BARNES. 139 Mr. Thomas was made a defendant to the original bill, as one of the purchasers of a portion of the land from the trustees, for which it was alleged he paid no money, the same being al- lowed to remain in his hands, under an impression that the trust fund, exclusive of the purchase made by Thomas, would be sufficient to discharge all the judgments of elder date than the one which had been recovered by Thomas himself against Barnes and the Masons, in 1839 ; and that, consequently, the consideration of the land purchased by Thomas would be prop- erly applicable to the payment of the judgment held by him. The bill alleged, however, that this impression was so far ground- less that the judgments on which executions had been issued and been levied on the land, purchased by the complainant of the trustees, were elder in date than the judgment recovered by Thomas, and that, therefore, equity required that Thomas should be made to pay the purchase money due from him, before the complainant should be called on a second time to pay for the land which he had purchased ; and prayed relief accordingly. After the answer of Thomas to this bill was filed, the com- plainant asked and obtained leave to file an amended bill, in. which he alleged that the judgment recovered by Thomas was founded on a usurious contract, the nature of which is set forth in the bill ; insisting, that if the judgment by reason of the usury is not to be regarded as absolutely void, it should only- stand as a security for the sum actually and fairly due ; and then prays for a discovery, and such relief as the case may re- quire. The defendant Thomas demurred to this bill, 1st upon the ground, that it made no case which entitled the complainant to a discovery from, and relief against the defendant. 2nd, That the two bills, original and supplemental, contained multi- farious matters, not proper to be blended in the same suit. 3rd, That the complainant has not tendered, or offered to pay, the amount actually due the defendant, with interest thereon. 4th, That the complainant has shown no title to seek a discovery, or obtain relief. And 5th, That if the defendant is answer- able to any one touching the matters in the bill, the complainant is not the party to .whom he is so answerable. 140 HIGH COURT OF CHANCERY. * It would appear from a paper dated the 23rd of February, 1844, and filed with the answer of Thomas to the original bill, that he knew of the existence of judgments of elder date than his own, and that a deficiency of the trust estate was a possible, not to say probable, contingency; and it is, therefore, very ques- tionable, whether he can be permitted, in concert with the trus- tees, to secure such an application of the trust estate to the payment of his own debt, as shall disappoint or prejudice prior incumbrancers. But, whether this be so or not, there seems on the part of the complainant, who paid his money to the trustees, an equity superior to that of Thomas, who took land in satisfaction of a junior, when elder liens remained outstand- ing. If this arrangement between Thomas and the trustees is to stand to the prejudice of Doub, the complainant, that is, if Thomas shall keep all he has received, and the judgment cred- itors are thrown upon the land purchased by the complainant, then he will be compelled to pay for his land a second time, while Thomas will not have paid once for his ; because, upon the hypothesis, that the trust fund would have been exhausted in paying judgments prior in date to his, the judgment held by him was of no value. I do not think the objection upon the ground of multifarious- ness is well taken. The original bill sought relief against Thomas upon the ground, that the jndgment, in part satisfaction of which he re- ceived the land from the trustees, was younger than those for which the complainant's land was about to be sold ; and there- fore, equity required that he (Thomas) should be made to pay, before the complainant should be compelled to pay for his land a second time. That bill was founded upon the idea that this defendant had, by arrangement with the trustees, secured to himself an advan- tage against which equity would relieve, upon the application of a party prejudiced. The amended bill proceeds upon the supposition, that the same judgment (in respect of which the inequitable advantage charged in the original bill, is said to have been secured) is tainted with usury, and upon that ground prays for relief against it. DOUB VS. BARNES. 141 With respect to this transaction, then, bet ween the defendant, Thomas, and the trustees, two grounds of complaint are urged that is, the transaction is impeached upon two grounds one of which, conceding the judgment to be valid, insists that funds have been applied to its satisfaction which were applica- ble to the payment of elder liens. Whilst the other calls in question the validity of the judgment itself, because the debt, to secure which it was rendered, is founded upon a usurious contract. The bills, therefore, merely unite two causes of com- plaint growing out of the same transaction, affecting the same question of right ; being the right of the complainant to relief against the judgment of the defendant. Such a bill I do not regard as obnoxious to the objection of multifariousness. Story's Eg. PL, 233, section 284. The next ground of demurrer is, that the complainant does not by his bill, tender, or offer to pay, the amount of the debt actually loaned, with the interest thereon. But, in this case the allegation is, that the defendant has already received more than the amount of his claim, with in- terest ; and that at all events, without a discovery from him it is impossible to determine what the actual amount of his debt is ; and, therefore, to say that the complainant shall not have a discovery as to the usury, without paying, or offering to pay, the principal debt and legal interest, is to deny relief altogether. In the case of Jordan vs. Trumbo, 6 Gill fy Johns., 106, the Court of Appeals say, that a party who has paid a judgment founded on a usurious debt, may asked to be relieved, "as to the amount paid, beyond what was legally due and recover- able," and of course this may be done without paying, or offer- ing to pay any thing, because the application for relief is predi- cated upon the averment, that too much has been already paid. The next objection is, that if the defendant is answerable to any one touching the matters contained in the amended bill, he is not answerable to the complainant. This objection, it is presumed, proceeds upon the ground, that Barnes and the Masons alone could ask to be relieved against this claim, as founded upon a usurious consideration. 142 HIGH COURT OF CHANCERY. The complainant is the assignee of these parties, and the question is, whether, occupying that position, he may not set up usury against the judgment of Thomas, the payment of whose claim has operated, or is likely to operate, to his preju- dice. In the case of D' Wolf vs. Johnson, 10 Wheat., 369, the Su- preme Court was supposed to have decided, that the purchaser of an equity of redemption could not show usury in the mort- gage, to defeat a foreclosure ; but the case of Lloyd vs. Scott, 4 Peters, 205, shows that the point was not involved in D'Wolf vs. Johnson, and the case reported in Peters proves that a pur- chaser from the mortgagor may avail himself of the defence of usury, to defeat the action of the assignee of the mortgagee. The right of the alienee of the mortgagor to avail himself of the defence of usury, is maintained by the Court of Appeals in Trumbo vs. Blizzard, 6 Gill fy Johns., 18, and I am not able to perceive why, if Barnes and the Masons might require this defendant to repay the excess which he may have received over his debt and legal interest, the complainant who claims under and through them, may not do so likewise. Acting upon this impression, the demurrer of the defendant, Thomas, will be overruled, and he will be required to put in a full answer to the bill, within some reasonable time to be fixed by the order of the court. Daniel's Ch. Pr., 674, 675. The only remaining question is one of contribution among the several vendees of the lands embraced in the deed of trust. The Court of Appeals have said, that judgment against the terretenants gives the plaintiff at law a right to sell as much of the land as may be necessary to satisfy his claim, and if any one is injured he may resort to a court of equity to compel all who stood in equali jure to contribute ; but that the plaintiff at law is not bound to suspend his execution until the question of contribution shall be settled. The statements and prayers of this bill are, I think, sufficient to found a decree upon for contribution, as among these ven- dees ; and they will, therefore, be required to contribute in pro- portion to the value of the land conveyed to each respectively. KIDDALL VS. TRIMBLE. 143 Upon reading the terms and trusts of the deed, the whole property conveyed, irrespective of the particular grantor in whom the title may have previously been, appears to have been intended to constitute one common fund, for the satisfaction of all the debts designed to be secured ; and I am, therefore, of opinion, that the contribution among the vendees must be sim- ply, "in proportion to the value of the land conveyed to each respectively, without regard to the original source of the title," that is, to whether it was the property of Abraham Barnes, or either of the Masons, and that the value must be ascertained from the proofs now in the cause, and such further proofs as may be hereafter introduced by the parties. There must also be a decree for an account against the sur- viving trustee, (William Price ; D. G. Yost having died before the bill was filed in the cause.) [So much of this decree as relates to John H. Thomas was affirmed on appeal. The Court of Appeals differed from the Chancellor on the question of contribution, and upon the appeal by Doub, the decree was, in part, affirmed, and the cause re- manded.] ELIZA M. KIDDALL vs. WILLIAM TRIMBLE, SUR- }> DECEMBER TERM, 1847. VIVING EXECUTOR OF JANE JACOB. [DOWER MESNE PROFITS JURISDICTION LIMITATIONS.] THERE can be no doubt, that when the husband died seized, a court of law has full power to compensate the widow in damages for the detention of her dower. But a court of equity, alone, has power to give the widow damages for the de- tention of her dower as against the alienee of the husband. The jurisdiction of courts of equity, in cases of dower, is concurrent with that of courts of law ; and if the legal title to dower be admitted or settled, equity will proceed to the assignment of the dower, and will also compensate the widow in damages for its detention. 144 HIGH COURT OF CHANCERY. If the widow die without demanding her dower, the executor cannot recover the rents and profits : the cases having only gone to the extent of entertain- ing a bill for the profits, where the widow dies, pending her bill for dower. Whilst the suit for rents and profits was depending in a court of law, the plain- tiff voluntarily aliened the legal estate out of which the profits sprung, and the direction of the court to the jury being generally, "that the plaintiff was not entitled to recover," it was HELD That the court may have been of opinion, that, as the damages, which are given for the detention of the dower, are regarded as consequential or accessory, they could not be separately demanded. Had the action at law been for the dower itself, instead of being for the rents and profits of the land withheld from the widow, her alienation pending that suit, would have been an effectual bar to her recovery. The proper form of action by which these profits, as damages, may be recov- ered, is an action of trespass, as mesne profits are sued for, after a recovery in ejectment. The plaintiff having sued for these rents and profits at law, and having failed to recover them there, the question as to them must be regarded as res adju- dicata. They cannot form the subject of a new litigation the judgment at law having foreclosed the plaintiff. The title to the land itself must be first vindicated, before a claim for the fruits can be admitted, and a bill for the rents and profits would be premature, un- til the dower itself is recovered. The statute of limitations does not apply to the wife's remedy, by action, for her dower, though it does not follow, that lapse of time may not operate as a bar to a bill for an account. [William Jacob, of the city of Baltimore, being seized and possessed of certain real estate in said city, departed this life on the fifteenth day of July, in the year 1804, leaving his wife Jane Jacob surviving him ; who took possession of said real estate, under the mistaken impression that she had a life estate therein, and continued to hold the same until her death, which occurred on the 19th July, 1837. He had issue by his said wife, a daughter, named Mary, who died before him, and who, in her lifetime had intermarried with a certain Thorndick Chase, by whom she had issue three children, William, Anne and Maria, all of whom were living at the death of their grandfather. William intermarried with the complainant in the year 1807, and died in 1809, leaving issue a daughter named Maria, who died in infancy ; and his widow, the complainant, afterwards married John Kiddall who also died. Maria Chase married Samuel Handy, and died before her brother William, without KIDDALL VS. TRIMBLE. 146 issue, whereby he became entitled to one-half of his grand- father's estate. Anna Chase, since deceased, married James Belt, and had issue, a daughter, named Jane I. Belt, who mar- ried George H. De la Roche, and to whom the complainant, in the year 1839, sold all her dower interest in the lands to which her deceased husband, William Chase, had been entitled. Jane Jacob left a will, by which William Trimble was appointed her executor ; in whose hands, after paying all her debts, there re- mained the sum of $4,655 90. In the year 1838, the com- plainant instituted in Baltimore County Court, an action on the case against William Trimble, surviving executor of Jane Jacob, for one-third of the rents and profits of the estate, to which her husband was entitled, from his death, to the death of said Jane Jacob ; to which non assumpsit was pleaded, and upon which judgment was rendered against the plaintiff, in the year 1841. She then brought suit in this court upon the same cause of action, against the same defendant ; who set up by way of defence, the said judgment ; 'the sale to J ne I. De la Roche ; the absence of any demand of dower, except by the suit in Baltimore County Court; and the plea of limitations. The case having been argued before the Chancellor, he de- livered the following opinion :] THE CHANCELLOR : The bill in this case, then, is, to recover a proportion of the rents and profits of certain real estate, in which the complain- ant claimed dower, upon the allegation that her late husband, William I. Chase, died seized thereof. And there can be no doubt, assuming such to be the case, that a court of law was competent to give her damages for the detention of her dower. The statute of Merton, when the husband dies seized, giving the wife damages equal to the value of the dower, from the time of the death of the husband. 4 Kent Com., 65; Park on Dower, 302. It was supposed at one time, and indeed the impression was strengthened by what fell from the Court of Appeals, in the case of Steiger y s administrator vs. Hillen, 5 G. # /., 133, that 13 146 HIGH COURT OF CHANCERY. a widow could recover at law damages for the detention of her dower against the alienee of her husband, though in such a case, the recovery would not go back to the death of the hus- band, but only to the demand and refusal. But in the subse- quent case of Bellman vs. Bowen, 8 G. Sf J. 50, upon a more full consideration of the subject, and review of the authorities, the same court came to the conclusion, that a Court of Equity alone was competent to give the widow damages for the deten- tion of her dower, as against the alienee of the husband. It is, however, unquestionable, that when the husband died seized, a court of law has full power to compensate the widow in dam- ages for the detention of her dower. In truth, it was question- ed at one time, whether courts of equity could entertain general jurisdiction in cases of dower, to give full relief in those cases where there appeared to be no obstacle to the legal remedy, though upon a thorough examination of the subject, the juris- diction of chancery is fully established, both as to the assign- ment of dower, and the damages. The jurisdiction is concur- rent with courts of law, and if the legal title to dower be ad- mitted, or settled, equity will proceed to the assignment of the dower, and will also compensate the widow in damages for its detention. 1 Story Eq. sec., 624 ; 4 Kent Com., 71, 72. The Baltimore County Court, then, having, upon the state- ment of this bill that the husband died seized, at least a con- current jurisdiction with this court, it becomes a grave ques- tion, how far, after having sued in that court to recover dam- ages for the detention of her dower, the plaintiff, failing there, can be permitted to come here and ask the same relief. The record in this case does not show upon what ground the County Court decided against the plaintiff, the instruction of the court to the jury being general, "that the plaintiff was not entitled to recover ;" and it is argued by the complainant's council in this case, that this instruction must have been founded upon a want of jurisdiction in the court of law over the subject of the suit. This, however, by no means follows. At all events, in the absence of the reasons of the court for the instruction against KIDDALL VS. TRIMBLE. 147 the plaintiff, it would not be difficult to imagine other grounds than the want of jurisdiction. We have seen, that whilst that suit was depending, to wit, on the 8th of April, 1839, the plaintiff sold and conveyed to another, her dower interest in the lands in question ; and although it may be true, as argued by the solicitor of the complainant, that this deed transferred merely her interest in the land, and not her right to the antece- dent rents and profits, it is yet possible that it may have been thought that a transfer of the legal estate out of which the profits arose, carried with it, or extinguished the claim to the profits themselves. It seems to be settled, that if the widow die without demanding her dower, the executor cannot recover the rents and profits ; the cases having only gone to the extent of entertaining a bill for the profits where the widow dies, pending her bill for dower. Under such circumstances, the Court of Appeals say, in the case of Steiger vs. Hillen, the representatives of the widow may, in equity, be allowed the rents and profits, with this exception, "where the legal estate, out of which the profits are to spring, is gone, the claim to such profits falls with it," unless under particular circumstances such as are adverted to in that case. Now, in this case, whilst the suit was depending in Balti- more County Court, for these rents and profits, there was a vol- untary alienation of the legal estate out of which the profits sprung that is, the principal was parted with, and it may be, that the court thought, the principal being gone, the incident the profits fell with it. The damages which are given for the detention of the dower, are regarded as consequential or acces- sory, and the County Court may have been of opinion, that they could not be separately demanded. Cases can certainly be found in which it has been decided, that the claim for mesne profits cannot be supported, when the property, in respect of which they were claimed, had been parted with. It is very cer- tain, that if the action in the County Court, instead of being for the rents and profits of the land withheld from the widow, had been for the dower itself, her deed of the 8th of April, 1839, would have been an effectual bar to her recovery ; and 148 HIGH COURT OF CHANCERY. hence the County Court may have concluded, that as the plaintiff's title to recover the land from which the profits were derived, had been extinguished, by her own voluntary act, the consequential, or accessorial right to the profits necessarily fell also. The judgment of the County Court, against the plaintiff's right to recover, may have been placed upon another ground wholly distinct from the question of jurisdiction. The action, as has been stated, was for money had and received to the plaintiff's use, and not trespass for the mesne profits. Now, it may be, that the court thought the form of the remedy had been misconceived. The statute of Merton gives these profits as damages, and they are to be recovered by action of trespass, as such profits are sued for, after a recovery in ejectment. The County Court may then have been of opinion that the action was misconceived, and, for that reason, have instructed the jury adversely to the plaintiff, and not, as has been suggested, for want of jurisdiction. Stockett vs. Watkins, 2 Gill fy Johns., 326. Now, if this was the case, and the plaintiff failed in her action at law, because she had mistaken the form of the remedy, and not because the tribunal to which she appealed was incom- petent to relieve her in a different form, it can scarcely be offer- ed as an answer, when the effect of that judgment (being the judgment, in the case supposed, of a court of competent juris- diction) is pressed as a reason why the defendant should not be impleaded again in a different court, for the same cause. For these reasons, I am strongly inclined to the opinion, that as the plaintiff sued for these rents and profits at law, and fail- ed to recover them there, the question as to them, must, in the language of the Court of Appeals in Sellman vs. Bowen, be regarded as res adjudicata, "that they cannot form the subject of a new litigation, the judgment which has already passed, having foreclosed the plaintiff." There is besides another objection, which strikes me as of great force. This bill was filed on the 2d of November, 1841, and is to recover the rents and profits of land, her title to which, the complainant, on the 8th of April, 1839, transferred by her KIDDALL VS. TRIMBLE. 149 deed to another. There certainly seems much difficulty in main- taining, that even in a court of equity, and independently of the previous unsuccessful proceeding at law, a party can, after transferring his right to the principal, recover the accessory. In the case of Norton vs. Tucker, 1 Atk., 525, it was decided, that a bill for an account of the rents and profits was improper and premature, until the possession of the property was recov- ered, and that the proceeding in equity was the same as at law, where trespass would not lie for mesne profits, till possession was recovered by ejectment. Now, if this is the rule, and a bill for the rents and profits would be premature, until the dower itself was recovered, assuming the plaintiff not to have parted with her title thereto, it is not easily seen how her condition is improved by the circumstance of her having deprived herself of the capacity to recover it. If the title to the principal thing must be successfully asserted, before the incident can be claim- ed, it is immaterial whether the failure to do the former is the result of neglect, or of some act by which the party is preclud- ed from setting up the demand. It is enough that an indis- pensable preliminary act has not been performed. In this case it will be found, that the answer of the defendant does not admit the seisin of the husband at his death, and, per- haps, if that were a question, it might be necessary to send it to a court of law for determination. But an action could not now be maintained in a court of law for that purpose, because the com- plainant, by her deed, has unquestionably stripped herself of all title to dower in the land ; and, therefore, it follows, that under this bill, which does not claim dower, but only rents and pro- tils, the court must decide upon the right of the complainant to dower. There is a manifest propriety in the principle which requires that the title to the land itself shall be first vindicated, before a claim for the fruits can be admitted ; as otherwise, in a pro- ceeding which involves nothing more than the claim for the accessory, the court would find itself engaged in determining upon the right to the principal. Surely, if the title to principal and accessory are not decided at the same time, but are pre- 13* 150 HIGH COURT OF CHANCERY. sented separately, the adjudication upon the former should pre- cede the latter, as otherwise, after a decision in favor of a claim for the accessory, the title of the party to the principal might be successfully disputed. There has, in this case, been no judgment establishing the complainant's claim to dower in these lands, and her title is certainly not admitted. Now, suppose the court upon this bill, should decree an account of rents and profits, and the grantee in the deed from the complainant should be defeated in the assertion of the title thereby conveyed ; it is obvious, not only that there would be conflicting judgments, but that injustice would be done to the one party or the other ; which could readily have been avoided by requiring the dower title to the first established. The late Chancellor, in the case of Chase vs. Manhardt, 1 Bland, 333, decided, that if a creditor in any manner receives only the principal of his debt, so as not to relinquish his claim to the interest then due, he may afterwards recover the interest as if it were a part of the principal ; and this decision appears to be warranted by the case of Snowden vs. Thomas, 4 H. fy 7., 335. But the receipt of the principal debt without an intention or agreement to surrender the interest, is widely different from an assignment or transfer of the principal, though such transfer may not have been designed to carry with it the interest which had accrued at the time. My impression is, it would be diffi- cult to find a case in which a party, after an assignment of the principal debt, though he may have intended to reserve his right to the interest accrued at the time, has succeeded in recovering the interest; and the difficulty, I am persuaded, would be quite as great, to establish by authority the right to recover the rents and profits of land, before the title to the land itself was made out, or after the questionable title had been parted with. I am, therefore, of opinion, upon this ground, that the com- plainant cannot have the relief which she seeks by her bill. No opinion is expressed upon the defence founded upon the lapse of time, and limitations. The statute of limitations does not apply to the wife's reme- dy by action for her dower, though it does not follow that lapse GRAIN VS. BARNES AND FERGUSSON. 151 of time may not operate as a bar to a bill for an account ; and, perhaps, if it were necessary in this case to examine into the circumstances which are relied upon as an excuse for the delay, they would not be found sufficient to account for it. [The decree in this case was affirmed by the Court of Ap- peals.] PETER W. GRAIN ET AL. ^ vs. > DECEMBER TERM, 1847. BARNES AND FERGUSSON. 5 [GUARDIAN AND WARD JURISDICTION PRACTICE PROOF OF PAYMENT.] A PROCEEDING by the representatives of a ward against the executors of a guardian, to recover a legacy bequeathed to the ward, and which the guar- dian had received from the executors of the testator who made the bequest, is clearly within the jurisdiction of a court of equity. The relation of guardian and ward, and the rights and obligations which grow out of it, are peculiarly within the jurisdiction of a court of equity, and its power to afford a remedy for a breach of the trust cannot be questioned, un- less it has been taken away by some express statutory enactment. Every guardian, however, appointed, is responsible in equity for his conduct, and may be removed for misbehavior. Where the Court of Chancery has original jurisdiction, it is not deprived of it because the courts of law, by statutory enactment, may have power over the same subject, when the enactments giving them authority contain no provi- sions depriving this court of its ancient jurisdiction. It is too late to urge the objection of misjoinder of plaintiffs, when the case is ready for decision upon the merits, when there is no demurrer, and the an- swer takes no such defence. Courts of equity are not subject to those strict technical rules, which in other courts are sometimes found in the way and difficult to surmount. The rem- edies here are moulded so as to reach the real merits of the controversy, and justice will not be suffered to be entangled in a web of technicalities. The omission of the prayer for the specific relief, is no reason why, under the general prayer, the complainants may not have such relief, as the case al- leged and proved may entitle them to. The only limitation upon the power of the court to grant relief under the gen- eral prayer, is, that it must be agreeable to the case made by the bill, and not different from or inconsistent with it. 152 HIGH COURT OF CHANCERY. As evidence of payment of a legacy due to a ward, the defendants relied upon a memorandum in the hand writing of C., the husband of the ward, by which he charged himself with "amount of B's draft of $500." (B. being the guar- dian.) The draft was not produced, and there was no proof of its payment, or on what account it was drawn. They further claimed a credit of $1500, being the amount of a check by B. on the Bank of Baltimore, payable to C. or bearer, which was paid by the bank, but to whom the money was paid, did not appear. HELD That this evidence of payment was wholly inconclusive and unsatisfactory, and that it would be a departure from the rules established for the ascertain- ment of truth, to give it the effect for which the defendants insist. Courts of justice are not at liberty to indulge in wild, irrational conjectures, or licentious speculations, but must act upon fixed and settled rules. And it is far better that individuals should occasionally suffer, than that principles, which time and experience have shown to be essential to the ascertainment of truth, should be broken down or disregarded. Where no time is fixed by the will for the payment of a legacy, it will bear interest from the expiration of one year after the death of the testator. [By the last will and testament of Samuel Bond, dated 8th July, 1818, Mary Clarissa Bond Barnes, was bequeathed a leg- acy of $3000, and also one-fourth of his slaves. John Barnes, her father, and surviving executor of the deceased, passed his first and final account on the 14th April, 1830, showing a bal- ance of $38,338 16 in his hands for distribution amongst the par- ties entitled. As guardian to his daughter, he was awarded by the Orphan's Court a proportion of the slaves, estimated at $2337 50, and the pecuniary legacy of $3000. Mary C, B. Barnes, intermarried with William P. Compton, in the year, 1825, and died in the year 1834, leaving her husband, and an infant son, Barnes Compton, surviving her, of whom the for- mer died in 1837. At his death, John Barnes became guardian of the infant, and bonded as such. Said Barnes died also, in the year 1844, and by his will appointed the defendants, Rich- ard Barnes, and Robert Fergusson, his executors. Letters of administration on the estate of Mary C. B. Compton were sub- sequently granted to Peter W. Grain, and Henry G. S. Key, who in their representative capacity, and as the next friend, of said Barnes Compton, sued the executors of John Barnes for the pecuniary legacy which they allege to be still due; admitting the receipt by Compton and wife, of her share of the negroes. GRAIN VS. BARNES AND FERGUSSON. 153 The defence made by the answer was, payment in whole, or in part, and sundry objections to the form of the bill, were urged, at the hearing. In evidence of payment, the defendants rely partly upon a paper filed, containing a memorandum in Comp- ton's hand writing, by which he charges himself with "amount of Barnes' draft $500," which draft was not produced nor was any proof offered of its payment, or to show upon what account it was drawn. Another credit of $1500, was also claimed by the defendants, the character of which will appear in the Chancellor's opinion. The first point noticed by the Chancellor, was the alleged want of jurisdiction in the court to decree a payment of the legacy, the courts of law being fully competent to give relief, in reference to which, he said :] THE CHANCELLOR: Considering this as the will of the administrators of Mrs. Compton, and that the right to recover, if it exists at all, is in them, it is a proceeding, the representatives of a ward, against the executors of a guardian, to recover a legacy which had been bequeathed the ward, and which the guardian in that ca- pacity had received from the executors of the testator, by whom the bequest was made. It is a bill, then, in equity, by a ward against her guardian that is by a cestuique trust, against the trustee. The relation of guardian and ward constituting, as Mr. Justice Story says, the most important and delicate of trusts, and as this relation and the rights and obligations which grow out of it, are pecu- liarly within the jurisdiction of this court, its power to afford a remedy for a breach of the trust cannot be denied, unless it can be clearly shown to have been taken away by some express stat- utory enactment. In the matter of Andrews, 1 Johns. Chan. Rep., 99, Chan- cellor Kent says, that every guardian, however appointed, is re- sponsible in equity for his conduct, and may be removed for misbehavior, and that a testamentary, or statute guardian, is as much under the superintendance of the Court of Chancery as the guardian in socage. 154 HIGH COURT OF CHANCERY. The jurisdiction of the courts of equity to superintend the administration or assets, and to secure the payment of what may be left, after the discharge of debts, &c., either to legatees or distributees, seems to be as firmly established ; for, notwith- standing the act of parliament which gives to the spiritual court, in England, authority to decree a distribution of the residue, it has been held that as the act does not contain negative words, the jurisdiction of the Court of Chancery was not taken away. 1 Story Eq.j sec. 542. And in the case of Drury vs. Conner. 1 H. if G., 220, the right of a ward to proceed in equity against his guardian, is treated as a right, not open to controversy. In this case, it is urged, that there is no necessity for an account, because the amount claimed is specific and liquidated, and that the remedy at law might be prosecuted upon the bond of the guardian, without difficulty or embarrassment. It will be remembered, however, that though the amount claimed by the bill is liquida- ted, an account of the assets may be necessary, there being noth- ing at this time in the case to show them to be sufficient. But the jurisdiction of the court is not put upon this ground, but up- on the ground that this is one of those cases, in which this court having original jurisdiction, is not deprived of it, because the courts of law by statutory enactment may have power over the same subject ; the enactments giving them au- thority, containing no provisions depriving this court of its ancient jurisdiction. Indeed, the remedy in this court is so much more complete, and the power of the court of law, in many cases involving the administration of assets, so entirely inadequate, that it would be matter of serious regret, if the conferring of jurisdiction upon the latter, should have the ef- fect of ousting the former. The next objection urged to a decree upon this bill is, that the complainants are improperly joined ; and it is contended that this is an objection which may be taken at the hearing, though there is no demurrer, and the answer takes no such de- fence. There may be cases in which an objection of this descrip- GRAIN VS. BARNES AND FERGUSSON. 155 tion will be allowed at the hearing, though not raised upon the pleading, but certainly the general rule is, that it comes too late, if deferred to the hearing of the cause. Watertonvs. Cow- en, 4 Paige, 510; 1 Daniel's Ch., Prac., 350. Mr. Justice Story says, in cases of misjoinder of plaintiffs, the objection ought to be taken by demurrer ; for if not so taken, and the court proceeds to a hearing upon the merits, it will be disre- garded, at least if it does not materially affect the propriety of the decree. Story's Equity Plead., sees. 540, 544. In the case before the court, it is not seen how the misjoinder of the parties can affect the propriety of the decree. There is no conflict between them, the beneficial interest being admitted by the bill to be in Barnes Compton, the minor, and the administrator of his mother having only become such and united in the suit, that a full indemnity might be given the defendants, upon the payment of the legacy. The case of Rhodes vs. Wharbutton, 6 Sim. resp., 617, is express to show, that such an association of parties as com- plainants, is not even faulty upon demurrer. Courts of equity are not, in the dispensation of justice, sub- ject to those strict technical rules, which in other courts are sometimes found in the way, and so difficult to surmount. The remedies here are moulded, so as to reach, if practicable, the real merits of the controversy, and justice will not be suffered to be entangled in a web of technicalities. If such a decree can be put upon the record as will meet the substantial justice of the case, it will be done. The Court of Appeals of this state, in the case of McCormick vs. Gibbon, 3 Gill fy Johnson, 12, shows, conclusively, that a defence like the present, cannot at all events be brought forward for the first time at this stage of the proceedings, when if presented at an earlier period the objection could have been removed by an amendment of the bill. In the case referred to, the court say, a decree may give relief to both complainants, or separate and distinct relief to each. As to one, the bill may be dismissed, whilst full relief is granted to the other. And that the same principle applies to the defendants, is also stated in the same case, the relief being 156 HIGH COURT OF CHANCERY. joint, or several, as may be required to meet the justice of the controversy, as disclosed by the evidence. Upon this objection, then, I am clearly of opinion, that even if it could have been successfully urged, it is too late now, when the case is ready for decision upon the merits. The next objection of the defendants to the passing of a de- cree upon this bill, is, that the relief brought by it, is improp- erly prayed, there being no special prayer. The prayer is, that the plaintiffs may have such relief as equity may require, and this, it is said, is insufficient, standing by itself, unaccompanied by any special prayer. The object of all pleading is, to give to parties notice of the ground of claim, and defence, or upon which demands are as- serted or resisted, and when this is done, the object of the rules of pleading is attained. Now, there can be no doubt that the defendants in this case had notice by the bill, of the relief which was sought against them. They know that the object of the complainants was to make them pay this legacy ; and they defend themselves against the demand, by stating, in their answer, that it had been wholly or partially paid. They cannot, therefore, complain that they have been taken by surprise, when the relief, sought under the general prayer of this bill in the identical relief against which the answer sets up the defence. Upon principle, therefore, it would seem very obvious, that after having presented this issue, and gone to trial upon it, up- on the evidence, the defendants should not now be permitted to say that the bill is defective in this respect. But, independently of principle, it seems very clear upon au- thority, that the objection cannot be sustained. The only lim- itation upon the power of the court to grant relief under the the general prayer is, that it must be agreeable to the case made by the bill, and not different from, or inconsistent with it. Cham- bers vs. Chalmers, 6 H. fy /., 29. In Bentley vs. Cowman, 6 G. fy /., 152, the Court of Ap- peals say, that the extent and character of the relief which may be granted under the general prayer, depends upon the facts GRAIN VS. BARNES AND FERGUSSON. 157 charged in the bill. And in the case of Gibson vs. McCormictc, 10 Gill 4r Johns., 108, the same tribunal affirms the rule to be unquestionable, that if a complainant cannot obtain the specific relief for which he prays, he may obtain any relief consistent therewith, warranted by the allegations of his bill, provided it contains a prayer for general relief. If then the court may upon a bill containing a specific prayer for relief refuse that specific relief, and under the general prayer, grant such relief as may be warranted by the case made by the bill, and as may not be inconsistent with the special prayer, no reason can be perceived, why in the absence of any special prayer, the court shall not be at liberty to give the complainant such redress as the case made by his bill may entitle him to. In Story's Equity Pleadings, sec. 41, it is stated, that as a general rule, the general prayer alone is sufficient, though there are exceptions ; such for example as the remedy by injunction, which, for special reasons, will never be granted, unless express- ly asked for, not only in the prayer for relief, but in the prayer of process. And in the case of Cook vs. Martyn, 2 Jltk., 3, Lord Hardwicke said, the general prayer, standing by itself, was quite sufficient. In Grimes vs. French, ibid., 141, it was de- cided by the same Chancellor, "that though you pray general relief by your bill, you may at the bar pray particular relief, that is agreeable to the case made by the bill ; but you cannot pray a particular relief which is entirely different from the case." The same question was brought before the Vice-Chancellor, Sir John Leach, in. the case of Wilkinson vs. Beall et al., 4 Madd. Resp., 408, who observed, "that if a party prays a par- ticular relief, to which he is not entitled, he may nevertheless under the prayer for general relief, have such relief as he is en- titled to upon the case alleged and proved ; and that he could not be in a worse situation, because he had not prayed a par- ticular relief, to which he was not entitled." I am, therefore, of opinion, that the omission in this bill of the particular prayer, is no reason why, under the general prayer, the complainants may not have such relief, as the case alleged, and proved may entitle them to. VOL. I 14 158 HIGH COURT OF CHANCERY. The questions of form being disposed of, it remains briefly to consider the case upon its merits, as disclosed by the evi- dence. The issue presented by the pleading is, payment, or non pay- ment, and the onus of that issue is upon the defendants. Their answer, from the nature of the case, is not evidence, because they cannot have, and do not, indeed, pretend to have, any personal knowledge upon the subject, and speak only of their impressions founded upon circumstances, which it is presumed are laid before the court in the testimony. It appears from a book indorsed "accounts of John Barnes, surviving executor of Samuel Bond," filed by the defendants, that John Barnes did, as guardian to Mary C. B. Barnes, his daughter, receive her proportion of the negroes, and the pecu- niary legacy of three thousand dollars bequeathed her by the testator, Samuel Bond, and the defendants, therefore, as the executors of the said Barnes must be decreed to pay that leg- acy, unless they have succeeded in proving payment of it in whole or in part. [The Chancellor, after alluding to the draft for $500, men- tioned above, said :] It is possible, certainly, that it may have been a draft by Compton on Barnes, and that the latter may have accepted and paid in part discharge of the legacy ; but looking to the paper itself, and in the absence of the draft, which, if paid, ought to have been in the possession of Barnes, it seems to me, it would be a departure from those rules which have been established for the ascertainment of truth, to give it the effect for which the defendants insist. The defendants also claim a credit for the sum of fifteen hun- dred dollars, being the amount of a check by John Barnes, on the Bank of Baltimore, dated the 25th of October, 1831, drawn payable to William P. Compton, or bearer, and which appears, by the evidence, to have been paid by the bank on the day fol- lowing. It also appears, by the evidence of the bank officer, GRAIN VS. BARNES AND FERGUSSON. 159 that the check for the precise balance standing to the credit of Mrs. Barnes, but to whom the money was paid, does not ap- pear, and it is very certain, that the check authorized any bearer to receive it, it being, in effect, payable to bearer. Now, in this state of the case, can this court undertake to say, that this sum of fifteen hundred dollars was paid by Barnes to Compton, on account of the legacy bequeathed by Bond to Mary C. B. Barnes ? It has been said by high authority, that courts of justice are not at liberty to indulge in wild irrational conjectures, or licen- tious speculation. They must act upon fixed and settled rules, or the rights of persons and property, for the preservation of which they are instituted, will be exposed to painful uncertain- ty, or involved in inextricable confusion. It is true, that a rigid adherance to those rules may sometimes work injustice in par- ticular cases, but it is far better that individuals should occa- sionally suffer, than that principles, which time and experience have shown to be essential to the ascertainment of truth, shall be broken down, or disregarded. It is certainly possible, that these two sums of five hundred and fifteen hundred dollars, may have been paid on account of this legacy, and if so, the estate of Mr. Barnes is injured by the refusal of the court tr allow credit for them? But who is to blame for it? Surely himself in neglecting those ordinary precautions which are usually observed in the transaction of business. He took no receipts. He passed no account as guardian claiming credits. He made no entry in his books, or any memorandum among his papers (so far as the proof shows) of any such payments. The written evidence re- lied upon, together with the parol proof of Mr. Stone, is wholly inconclusive and unsatisfactory ; and I, therefore, feel it to be my duty not to give it the weight attached to it. The court, therefore, will sign an order, referring this case to the Auditor, with directions to state an account, in which the defendants, as the executors of the late John Barnes, will be charged with the pecuniary legacy bequeathed by the late Samuel Bond to Mary C. B. Barnes, afterwards Mary C. B. 160 HIGH COURT OF CHANCERY. Corapton, with interest from the expiration of one year after the death of the testator, in conformity with the general rule upon the subject of interest when no time of payment is named by the will, the said sum, with the interest to be paid to the com- plainants, Grain and Key, as the administrators of the said Mary C. B. Compton. The Auditor will be also directed to take an account of the assets of the estate of the said John Barnes, in the hands of his executors, from the pleadings and proofs now in the cause, and such further proofs as may be laid before him by a day to be limited in the order, for the purpose of ascertaining whether there shall be any abatement of said legacy, on account of a deficiency of assets. He will also state an account between the administrators of the said Mary C. B. Compton, and the minors of Barnes to the end, that such final disposition may be made of the case as the rights of the parties may render expedient and proper. [This order was affirmed on appeal.] JOHN McTAVISH AND EMILY McTAVISH, EXECUTRIX OF CHARLES CARROLL, OF CAR- , _ ROLLTON, vs. WILLIAM CARROLL. [APPLICATION or PAYMENTS.] THE general rule upon the subject of appropriation of payments, gives to the debtor, in the first place, the right to make the application, and then upon his omitting so to do, to the creditor. If a party is indebted on mortgage and simple contract, and making a payment, neglects to apply it, the law will apply it to the mortgage or bond, as most beneficial to the debtor ; and such is the undoubted rule where no particular application is made by either party. Payments made generally, are applied in extinguishment of debts bearing in- terest, where there were others due the same creditor, not carrying interest. If a party is indebted on several accounts and makes a payment, he may apply it to either ; if he does not, the creditor may do so, and if neither does, the law will appropriate it, according to the justice of the case. McTAVISH VS. CARROLL. 161 [In this case certain land was sold under a decree of the court to satisfy a mortgage debt ; and a surplus remaining in court, after its payment in full, petitions were filed by various parties, claiming to be entitled to have their debts paid out of the residue of the fund. The question decided in the case, the facts of which are fully stated by the Chancellor in his opinion, relates to the doctrine of the appropriation of payments :] THE CHANCELLOR : The question now submitted for decision has reference to the distribution of the fund raised by the sale of the property, under the decree of the 22d of September, 1835. It appears, by the proceedings, that the late Charles Carroll of Carrollton, in the years 1829 and 1830, loaned to the de- fendant, William Carroll, the sum of $3500, to secure the re- payment of which, the latter assigned to the former a land office certificate, for a tract of land called "Canal and Rail Road," containing upwards of ten thousand acres ; and that, to secure the repayment of a further loan of $500, made on the 20th of October, 1830, the defendant assigned to the said Carroll of Carrollton, similar certificates of four tracts, called "Water Lot," "Villiers," "Webster," and "Take All." Upon the certificate for the tract called "Canal and Rail Road," a patent was obtained by the complainant's testator on the llth of March, 1830. Agreements were signed by the said testator, dated respec- tively, on the 12th of January, 1830, and the 22d of April, 1831, showing the assignments to have been made by way of security merely, and constituting them in effect, mortgages, and they were so treated in the bill and decree, which was passed for the sale of the property. The trustee appointed for the purpose, made sale of the several parcels of land in the lump, on the 8th of July, 1846, for the gross sum of $6950, and the sale has been duly ratified and confirmed by the court ; and the question is, how shall the 14* HIGH COURT OF CHANCERY. net proceeds of this sale, be apportioned among the parties who have preferred claims to it ? Since the decree, various claimants have presented them- selves, insisting upon their right to participate in, or have ap- propriated to their use, portions, or the whole of the surplus of these sales, after paying the mortgage debt of the complain- ants. On the 10th of May, 1839, Carroll, the mortgagor, convey- ed to Richard Caton, for the sum of $1250, two portions of the tract called "Canal and Rail Road," designated as lots number- ed 15 and 16, and containing, the one 273 acres, and the other 342 ; and the grantee in this deed being dead, Josias Penning- ton, as his administrator, and his heirs at law, filed their peti- tion on the 4th of February, 1847, praying that a portion of said proceeds of sale may be paid to them. On the 17th of June, 1842, two other parts of the same tract were conveyed by way of mortgage, by the same William Car- roll, to George Neilson, administrator of James Neilson, to secure the sum of $2000. These portions contain together the quantity of 374 acres. And on the 18th of July, 1843, the same party conveyed to Jacob Snively, one individual moiety, of all those several tracts in trust for the payment, rateably, of certain of the creditors of the grantor. And these two parties, Neilson and Snively, are also claimants of portions of the fund raised by the sales. In addition to these, J. J. Speed, by his petition, filed on the 18th instant, insists upon his right to have a part of the money paid to him upon the grounds set forth in his petition. By an account filed by the complainants on the 31st Decem- ber, 1846, there appears to have been other transactions than the mortgage between Charles Carroll of Carrollton and the de- fendant, in respect of which the defendant became indebted to him in other sums of money than those secured in that way ; and the same account shows that the defendant made payments from time to time of various sums of money, without any application being made by either party of such payments, towards the satisfaction of either of the debts. McTAVISH VS. CARROLL. 163 In the account marked A, stated by the auditor, these sums thus unappropriated by either the debtor or the creditor, are applied to the satisfaction in part of the mortgage debt, which the Auditor supposes, for the reason given by him, to be the proper application. By this account, there remains an unap- propraited balance of $2480 56, after paying the complainant's claim ; one moiety of which is assigned to Jacob Snively, and the other to the defendant. In account B, stated according to the views of the complain- ants, the residue is reduced to $1489 93, which is assigned to the same parties in like proportions. Exceptions have been filed to these accounts by the parties interested ; the one side, insisting upon the propriety of the application of the payments in the one account, and others in the other. The Chancellor thinks, that the appropriation of the pay- ments made by the Auditor in the account A, is the proper one, that is, to the payment of the mortgage debt, as ,being most beneficial to the debtor. The general rule upon the subject of the appropriation of payments, is laid down by the Court of Appeals, in the case of Mitchell vs. Hall, 4 Gill fy Johns., 301, giving the right to the debtor, in the first place to make the application, and then upon his omitting so to do, to the creditor. In this case, however, there was no appropriation of these payments made by either party, and the question is,, how, in the absence of such appropriation, will the law apply them ? It was said by the general court, in the case of Gwinn vs. Whittaker, 1 Harr. fy Johns., 754, that if a party is indebted on mortgage and simple contract, and making a payment, ne- glect to apply it, the law will apply it to the mortgage or bond, as most beneficial to the debtor. And in the case of Dorsey vs. Gassaway, 2 H. fy J., 402, 412, the same court said, that such was the undoubted rule, where no particular application, by either party was made. There was an appeal in this last case, and the judgment of the general court was affirmed by the appellate court. 164 HIGH COURT OF CHANCERY. The rule that payments made generally, will be applied in a way most beneficial to the debtor, is further illustrated by the cases in which such payments have been applied in extinguish- ment of debts, bearing interest, where there were others due the same creditor not carrying interest. Hayward vs. JLomax, 1 Vern., 24. In this case, it is true, that it is not very important to the debtor, whether the payments are applied to the debts secured by the mortgage, or to those which are not so secured, as the surplus in either case will be insufficient to pay the other claims against him. It is, however, of some importance to the other creditors, as the surplus applicable to the payment of their claims, will be diminished or enlarged, as the one, or other rule is adopted. The rule, as laid down in some of the cases is, that if a party is indebted on several accounts, and makes a payment, he may apply it to either, if he does not, the creditor may do so ; and if neither does, the law will appropriate it according to the jus- tice of the case. United States vs. Kirkpatrick, 9 Wheat., 720 ; Cremer vs. Higinson, 1 Mason, 323. And it seems to the Chancellor, that the justice of the case, in view of the in- terests of third persons, as well as a proper regard to the rights of the debtor, requires that the payments should be ap- plied to the satisfaction of the mortgage debt, and an order will be passed for that parpose. The case is not now in a condition to enable the court to make a final disposition of the surplus among the various con- tending creditors. It would seem that the surplus should be assigned to those creditors according to the date of their re- spective liens, but the difficulty arises from the fact, that the different deeds and mortgages are for parcels of the premises mortgaged to Carroll of Carrollton, and the whole being sold in a lump, it is not easy to say how much of the purchase money should be awarded to the several parties. The case will, how- ever, be sent to the Auditor, with directions, as far as practica- ble, to appropriate the surplus, after paying the mortgage debt of the complainant, to the satisfaction of the claims of the oth- McTAVISH VS. CARROLL. 165 er creditors ; due regard being had to the dates of the instru- ments under which they respectively claim, and the extent of property conveyed to each of them severally. The Chancellor is also of opinion, that the sum which may be awarded to the parties mentioned in the petition of Josias Pennington, administrator of Richard Caton, and others, should be awarded to the heirs at law of said Caton, and not to his administrator. [After this decision, further testimony was taken, relative to the value of the parcels of land respectively mortgaged to Neil- son, and sold to Caton, as compared with the value of the whole tract covered by the prior mortgage to Charles Carroll of Carrollton. The parts conveyed to Caton contained togeth- er six hundred and fifteen acres, and those mortgaged to Neil- son contained three hundred and seventy-four acres of land. As the mortgage debt of Carroll of Carrollton was a lien upon the whole tract, and Caton and Neilson had liens upon portions of it only, the question was, whether the lien of the former should be thrown upon the whole fund, and the two latter con- fined in their claims to so much of the residue as was propor- tionate to the value of the portions covered by their liens, com- pared with the value of the whole tract ? or, whether the mort- gage debt of said Carroll of Carrollton should be thrown, in the first place, upon so much only of the whole tract as was not embraced in these two subsequent deeds, and if that was not sufficient, then upon these two portions of the whole tract ; and thus leave the whole surplus to be applied proportionately to the claim of Caton and that of Neilson ? Such of the facts as are necessary to explain the case, and not given in the previous report, are stated by the Chancellor in his opinion.] THE CHANCELLOR: This case standing ready for further directions on exceptions to the report of the Auditor, and having been submitted during the sittings of the term, by the solicitor of George Neilson, ad- 166 HIGH COURT OF CHANCERY. ministrator of James Neilson, deceased, a creditor and mort- gagee of a portion of the property in the proceedings mentioned, is now, according to the rule, laid before the Chancellor for de- cision, upon notes, in writing, by the solicitors of the parties. After reading the notes, and examining and considering the proceedings in the cause, I have come to the conclusion, that the mortgage debt of the complainants, it being the oldest in- cumbrance, must be first paid; but, that this shall be done so as to inflict as little injury as possible upon those whose claims stand posterior to it in date, and that to accomplish this end, it was proper to adopt the course pursued by the Auditor, as stated in his report of the 13th of November last. That is, that the mortgage debt of the complainants should be so cast upon the mortgaged property, as without injury to the prior in- cumbrance, should leave the residue of the net proceeds of sale to satisfy junior incumbrances and subsequent deeds in the or- der of their priority. I am, therefore, of opinion, that as the mortgage to Neilson and the deed to Richard Caton are anterior in point of time to the instruments under which Joseph J. Speed and Jacob Snive- ly claim, they must be preferred to them ; and, as by the de- cree of the 30th of October last, so much of the proceeds of the sales as Richard Caton should appear to be entitled to, were directed to be applied to the payment of his debts, such appli- cation must now be made. The only question in the case, which remains, and which seems to present any difficulty, respects the portions of the fund to be applied to the payment of the mortgage of Neilson, and to the creditors of Caton. The property embraced in the mortgage to Neilson, and in the sale to Caton, consisting of lots numbered 15, 16, 226 and 145, constitute in their area but a small portion of the entire tract sold, and the difficulty results from the fact, that the en- tire tract was sold in one mass at so much per acre, so that nothing appears upon the face of the proceedings by which we can determine the value of these particular lots, relatively to the residue of the whole tract. McTAVISH VS. CARROLL. 167 It is objected by the counsel of one of the parties interested adversely to Neilson, that if the latter thought the lots mort- gaged to him possessed any peculiar value, he should have re- quired them to be sold separately, and not having done so, he cannot now insist upon receiving more of the proceeds of sale than is attributable to the quantity of land contained in his mortgage. But the answer to this, which I consider sufficient, is, that neither Neilson nor Caton were parties to the cause under which the property was sold ; and, that the sale was made under a mortgage prior in date and paramount in title to the deed un- der which they claimed. This objection then being, as I think, untenable, the ques- tion resolves itself into one of fact, and that, of course, depends upon the evidence taken in relation to it. In the Auditor's report of November last, in speaking of the evidence of the defendant, William Carroll, and that of James H. Stimpson, the only witnesses who had then been examined upon this point, he remarked, that their testimony was so completely at variance as to be altogether irreconcilable ; and, he submitted the propriety of authorizing the parties to take further proof to remove the difficulty. An order was subsequently passed for that purpose, and upon reading the depositions taken under this last order, and considering it together with the proof previous- ly on file, I am very decidedly of opinion, that the lots in ques- tion, numbered 15, 16, 145 and 229, were worth, at least, as much as all the rest of the property comprehended in these pro- ceedings ; and, therefore, after the full satisfaction of the mort- gage to the late Charles Carroll of Carrollton, the surplus pro- ceeds ot sale must be applied, in proper proportions, to the pay- ment of the mortgage to Neilson, and to the creditors of Rich- ard Caton. Wherefore, it is ordered, this 28th of January, 1850, that this case be, and the same is hereby, referred to the Auditor, with directions to state an account accordingly. Exceptions of the parties at variance with this order are overruled. [No appeal was taken from either of the orders in this case.] 168 HIGH COURT OF CHANCERY. JOHN H. DUVALL ET AL. ^ vs. DECEMBER TERM, 1847. JOHN COALE. ) [FRAUD.] A PARTY who attempts to protect himself from the consequencesirf an engage- ment into which he has entered, upon the plea, that he has been imposed upon, must make out the imposition by proof. / Fraud is not to be presumed, and though it may not be necessary to prove it by direct and positive testimony, yet, the circumstances upon which the pre- sumption of its existence is to be founded, should lead plainly and directly, and by strong implication, to that conclusion. Deliberate settlements and solemn instruments are not to be impeached and overthrown by light and trivial circumstances, which, at most, furnish a foundation for ingenious minds to speculate upon, and to weave plausible theories of unfairness in the transaction with which they are associated. [John Coale, of Howard district, having been indebted to Beale Duvall, in the sum of $1187 55, executed to him a bill of sale of certain personal property, dated 27th November, 1824, to secure its payment. According to the allegations of the bill, the debt was, on the 8th of January, 1834, reduced to the sum of $742 29 ; and on the 28th of October, following, Coale mortgaged certain real estate in Howard district, to .Du- vall, to secure the payment of the balance, in three annual in- stallments, with interest ; the last installment being due on the 28th October, 1837. The bill also stated, that said Duvall, had been long since dead, and that John H. Duvall and William B. Duvall, two of the complainants, were his administrators ; that Coale had made but two small payments on the mortgage, one of $65, on the 27th September, 1841, and the other of $214 49, on the 21st February, 1842 ; the balance, with inter- est, being still due ; and that the mortgage was afterwards as- signed by said administrators, for a valuable and bona fide con- sideration, to Thomas John Bowie, the other complainant. The defendant, Coale, admitted in his answer, that he had signed the mortgage in question ; but, stated that he knew nothing of its contents, save as they were afforded him by Duvall, who pro- 170 HIGH COURT DUVALL. 171 minds to speculate upon, and irs j think> to have been quite familiar witl UpQn examiningt he mortgage, ties. There is, besides, anotl ls payable by i nsta ii rae nts, and calculated to rebut the presump e paid at the st i pu i ated period, contemplated by Beale Duvall. fc> and not on the entire debt> The settlement m which the d when ^ set tl em ent was made mitted, was made on the 8th of lole debt> and app i ying no part gage only charged to be fraudt the reduction of the principal, settlement, was not executed ur wag firgt paid) was against the upwards of nine months a f terw s eous During all this interval the si his wag the resuh of inadve r. tion by any person whom the d, eration of the prov i s i ons O f the that office for him, Duvall havin. of irapa i ring t h e invalidity of 170 HIGH COURT OP CHANCERY. minds to speculate upon, and to weave plausible theories of unfairness in the transaction with which they are associated. . It is true, it is shown in this case, that the defendant cannot / read manuscript, and that, therefore, he could not have him- f self have examined and understood the settlement of January, 5 1834, which was the basis of the mortgage of the following [ October ; but, then it is in evidence, that that settlement Uvas made in the presence of the defendant, who could both ead and write, and who seems, from his proof, to have been juite familiar with his business. Looking to that settlement, and comparing it with the other papers produced by the defendant, and seeing that to a great extent its fairness is corroborated by those papers ; and in view also of the vague and indefinite character of the parol evidence relied upon to show that the defendant was not allowed all the credits to which he is said to have been entitled, I do not con- sider myself warranted in saying, that fraud was practiced in that settlement. But supposing the circumstances of suspicion were more pregnant, than they present themselves to my mind, there are other facts appearing in the case, which would go far to repel the presumption of fraud. The settlement does not appear to have been made in private, with no persons present but the parties themselves, but, as is shown by the proof, in the presence of a witness, who could both read and write, and who seems from his own declarations to have been quite familiar with the dealings between the par- ties. There is, besides, another circumstance, which is well calculated to rebut the presumption that any thing unfair was contemplated by Beale Duvall. The settlement in which the fraud is said to have been com- mitted, was made on the 8th of January, 1834, and the mort- gage only charged to be fraudulent, because founded upon that settlement, was not executed until the 28th October following, upwards of nine months afterwards. During all this interval the settlement was open to examina- tion by any person whom the defendant might ask to perform that office for him, Duvall having given him a copy of it in his COALE VS. DUVALL. 171 own hand-writing, which appears -from the evidence to have been well known to the defendant's witness, who was also present when it was made. It seems difficult to suppose that a party designing to per- petrate a fraud upon one who could not read, would have placed in his hands the ready means of detection and exposure, which are here exhibited. Surely this willingness of Duvall, thus manifested that the settlement should undergo revision and ex- amination, goes far to relieve the transaction from the appear- ance of suspicion which, I think upon insufficient grounds, the defendant's counsel has attempted to throw around it. I do not, therefore, think that the mortgage can be pro- nounced fraudulent, and therefore void ; nor upon collating the settlement with the receipts produced by the defendant, and in view likewise of the parol proof, can my mind be brought to the conclusion, that the defendant is entitled to any additional credits. There is, however, in my opinion, one correction to be made of the settlement of January, 1834, and that is, in regard to the mode in which the interest was calculated on the debt secured by the mortgage of the 27th November, 1824. According to the settlement, the interest was charged upon the entire debt, and the several payments applied, first, to pay the interest thus charged, and then to the extinguishment of the principal. This mode of stating the account was, I think, wrong, and must be corrected. Upon examining the mortgage, it will be found that the debt was payable by installments, and that each installment was to be paid at the stipulated period, with interest on that installment, and not on the entire debt, and, therefore, the mode adopted when the settlement was made of charging interest on the whole debt, and applying no part of the respective payments to the reduction of the principal, until the interest on the whole was first paid, was against the terms of the contract, and erroneous. But as I am fully satisfied, this was the result of inadver- tence or of ignorance of the operation of the provisions of the deed, it cannot have the effect of impairing the invalidity of 172 HIGH COURT OF CHANCERY. the last mortgage, except to the amount to which the erroneous modes of calculation may have swelled the sum secured by it. I do not think the last exception taken by the defendant to the statement of the auditor can be maintained. The entire mortgaged premises, and the sum intended to be secured by the mortgage are assigned, and as between the mortgagor and the assignee, I am not aware of any principle which will enable the former to make such an objection to the payment of the en- tire debt. It is, thereupon, ordered, this 24th day of January, 1848, that this case be, and the same is hereby again referred to the Audi- tor, with directions to state another account for the purpose of ascertaining the amount due upon the mortgage in the proceed- ings mentioned, from the defendant to the late Beale Duvall, executed on the 28th of October, 1834, in which account such corrections shall be made of the settlement, marked exhibit No. 2, as shall make it conform to the views herein expressed, and the amount to appearing to be due with interest thereon from the date of the settlement, to the date of the mortgage, shall be taken as the sum secured by the latter, and the basis of the ac- count now to be stated. All exceptions at variance with this order are overruled. [No appeal was taken from this order.] JAMES MALCOM, PERMANENT TRUSTEE OF HENRY KEENE } DECEMBER TERM, 1847. WASHINGTON HALL, JR. [DEED op TRUST FOR BENEFIT OF CREDITORS PREFERENCE INSOLVENT SYSTEM.] IT has been settled by the highest authority in this state, that a debtor in failing circumstances, may prefer one creditor to another, by a transfer of his prop- erty made in good faith , and that, in similar circumstances, a transfer by a debtor of his whole estate to trustees, for the equal benefit of his creditors, is free from objection. MALCOM VS. HALL. 173 Yet, if such payment or transfer be made with a view, or under an expectation, of taking the benefit of the insolvent laws, and with an intent thereby to give an undue and improper preference to such creditor, then, such payment and ' transfer are void under the provisions of our insolvent system. The distinctions recognised in England between voluntary and involuntary trans- fers, are applicable to our insolvent system, and to avoid such transfers, for fraud upon that system, they must be shown to be voluntary, as well as made with a view and under an expectation of taking the benefit of the in- solvent laws. The act of 1834, ch. 293, effected two alterations in the system, so far as the city and county of Baltimore are concerned. 1st, It invalidated the trans- fer, whether made upon request or not. 2d, No such transfer could be made in favor of one creditor to the prejudice of the rest, if the debtor making it shall have had no reasonable expectation of being exempted from liability or execution for, or on account of, his debts, without applying for the benefit of the insolvent laws. Yet, under this act, there must be found, in the transfer or assignment, an in- tention to prefer one creditor over another ; or, notwithstanding, the party had no reasonable expectation of escaping a recourse to the insolvent laws for relief, the transfer or assignment will stand, and as the deed in this case made no such preference, it was held valid. [This case was commenced on the equity side of Baltimore County Court, and removed to this court. The bill stated, that on the 30th April, 1847, Henry Keene, of Baltimore city, being in insolvent circumstances, and in con- templation of applying for the benefit of the insolvent laws, as- signed, by deed of that date, all his property, of every descrip- tion, to the defendant, to be by him applied to the payment of the insolvent's debts ; first deducting therefrom a commission of eight per cent, for himself, and his expenses. That, on the 7th of May, following, Keene applied for, and obtained, the benefit of the insolvent laws, and the complainant was duly ap- pointed his permanent trustee. And, that the defendant has refused to deliver said property to the complainant, though re- quested so to do. The bill prayed, that a decree might be passed, setting aside the deed of assignment, as fraudulent, and requiring the property to be delivered to the complainant. The answer of Hall, denied that the deed was made in contem- plation of applying for the benefit of the insolvent laws, said application only having been made in consequence of a refusal 15* 174 HIGH COURT OF CHANCERY. of the complainant, as solicitor of one of his creditors, to dis- pense with special bail in an action against him. The defend- ant also denied, that the assignment was fraudulent and void, within the meaning of the insolvent laws ; and stated, that im- mediately after the execution thereof, he had called upon the creditors of the insolvent to inform them of it, and that they had assented thereto, and directed him to proceed in the execu- tion of the trust reposed in him by it. A replication was put in to this answer, and certain papers and an agreement were filed to show the assignment to Hall, the application of Keene, for the benefit of the insolvent laws, and the appointment of the trustee. The case was subsequently removed to this court, and argued before the Chancellor, who, at this term delivered the following opinion :] THE CHANC ELLOR: It has been settled by the highest authority in this state, that a debtor in failing circumstances may prefer one creditor to an- other, by a transfer of his property, made in good faith ; and that in similar circumstances, a transfer by a debtor of his whole estate to trustees, for the equal benefit of his creditors, is free from objection. State of Maryland vs. Bank of Maryland, 6 G. #/., 205. Although, however, a debtor may prefer one of his creditors, to the exclusion of the rest, either by payment, or a bonafide transfer of his property, according to the provisions of the com- mon law, yet, in this state, if such payment or transfer, is made with a view, or under an expectation of being or becom- ing an insolvent debtor which words are construed to mean, with a view or under an expectation of taking the benefit of the insolvent law and with an intent thereby to give an undue and improper preference to such creditor, then such payment and transfer are obnoxious to the provisions of our insolvent system, and void, the acts of 1812, ch. 77, sec. 1, and 1816, ch. 221, sec. 6, (this latter act relating to the city and county of Baltimore,) declaring such to be the law of this state. The MALCOM VS. HALL. 175 construction referred to, has been put upon those acts by the Court of Appeals, as appears by the case of Hickley vs. Farmers and Merchants Bank, 5 G. fy /., 377, and other cases. It has been decided, that the distinctions, which have been recognised in England, between voluntary and involuntary transfers, are applicable to our insolvent system, and that, con- sequently, when a transfer by a debtor to his creditor is sought to be avoided as a fraud upon the system, it must be shown, not only that the transfer was made with a view, and under an expectation of taking the benefit of the insolvent law, but that it was likewise voluntary. And that a transfer could not be considered voluntary, which was made to a man demanding payment. Crawfords and Sellman vs. Taylor, 6 G. f /., 323. Such was the state of the law in Maryland, when the act of 1834, chap. 293, was passed, being a supplement to the insolv- ent laws, relating to the city and county of Baltimore, the first section of which provides, "that all conveyances, assign- ments, sales, deliveries, payments, conversions, or dispositions of property or estate, real, personal or mixed, debts, rights, or claims, or confessions of judgment, that shall be made, or caused, or allowed to be made, whether upon request or other- wise, by any applicant, to or in favor, or with a view to the advantage or security of, and with intent to prefer any creditor or creditors, security or securities of such applicant, when such applicant shall have had no reasonable expectation of being exempted from liability, or execution for, or on account of his debts, without applying for the benefit of the insolvent laws as aforesaid, shall be deemed within the meaning and effect of the sixth section of the act to which this is a supplement, to have been made with a view or under an expectation on the part of the applicant, of being or becoming an insolvent debtor, and with intent thereby to give an undue and improper prefer- ence. This act of the legislature was passed shortly after the de- cision of the Court of Appeals, in the case of Crawfords and Sell- man vs. Taylor, and it is by no means a violent supposition, 176 HIGH COURT OF CHANCERY. that one of the objects of it, was to bring involuntary transfers of property, by a debtor to his creditor, which the Court of Appeals had declared to be without, within the provisions of our insolvent system, as applicable to the city and county of Baltimore. This law effected two alterations in the system, so far as the city and county of Baltimore are concerned. In the first place, it invalidated the transfer whetner made upon request or not, and thus in future rendered the decision in the case of Crawfords and Sellman vs. Taylor ineffectual within the limits of the city and county of Baltimore. And in the next, no such transfer could be made in favor of one creditor to the prejudice of the rest, if the debtor making it shall have had no reasonable expecta- tion of being exempted from liability or execution for or on ac- count of his debts, without applying for the benefit of the insolvent laws. Thus dispensing with one of the prerequisites to the successful impeachment of such a preference that it should have been made with a view, or under an expectation of taking the benefit of the insolvent laws. Substituting the reasonable expectation of such an alternative, for the direct purpose of taking the benefit of the insolvent laws. But still, under the act of 1834, the transfer or assignment of the debtor cannot be successfully assailed, unless it appears that it was made "with a view to the advantage or security of, and with intent to prefer any creditor or creditors, security or securities." There must, under this act, as it seems to me, be found in the transfer or assignment, an intention to prefer one creditor or security over another, or notwithstanding the party may have had no reasonable expectation of escaping a recourse to the insolvent laws for relief, the transfer or assignment will stand. [The Chancellor then proceeded to state the facts of the case, and after alluding to the answer of the defendant, he continues :] Now, although this answer, as it does not speak of matters within the personal knowledge of the respondent, is not entitled MALCOM VS. HALL. 177 to the full weight of an answer in chancery under other circum- stnnces, it is, nevertheless, quite sufficient to put the complain- ant upon the proof of the allegations of his bill, and it is for him to show, that when the grantor executed this deed, he had no reasonable expectation of being exempted from liability, or execution for or on account of his debts, without applying for the benefit of the insolvent laws. It is true, as was decided by the Court of Appeals in the case of Dulany vs. Hoffman, 7 G. Sf ./., 170, the intent, in cases of this description, may be established by facts and circumstances, as in other cases, and that proximity between the date of the assignment, and the application for the benefit of the law, is a circumstance worthy of consideration in connection with the other facts and circumstances in the case. But the other facts and circumstances of this case are so essentially different from those which are found in the case referred to, that it is impos- sible to suppose the court would have come to the same conclu- sion in this, as in that. Here, the creditors are all put on a foot- ing of entire equality ; there, a preference was given, unsolicit- ed, to a few favored creditors, at the expense of the rest, with- out any attempt whatever to conciliate or adjust their claims against them. It was with reference to one party thus volun- tarily preferring one creditor to the other, that the Court of Ap- peals say, he could have had no reasonable expectation of being exempted from liability, on account of debts due the injured creditors, except by an application for the benefit of the insolv- ent laws. If, therefore, the decision of this case depended upon the ex- istence of such expectations that is, if the existence of such an expectation on the part of the grantor in this deed would render it invalid, I would still be unwilling to set it aside ; be- cause, looking to the provisions of the deed, and seeing their justice, and the good reason which the grantor may reasonably have entertained, that his creditors would acquiesce in it, I should have been strongly inclined to think, that he did expect exemption from their claims against him, without having re- course to the insolvent laws for relief. But as I have already |78 HIGH COURT OF CHANCERY. stated, according to my construction of the act of 1834, even such an expectation on the part of the grantor, would not viti- ate the deed, unless it likewise preferred one creditor to the others, and as this deed makes no such preference, I am of opinion, the complainant cannot have relief against it, and that his bill must be dismissed. [No appeal was taken from this decree.] PEARSON CLARK ^ vs. v DECEMBER TERM, 1847. LEVERING ET AL. 3 [MORTGAGE ASSIGNMENT OF MORTGAGE DEBT.] A BILL of sale, though absolute in its terms, is, in equity, considered as a mort- gage wherever the object is to secure the payment of a debt, and not to trans- fer the title absolutely to the party to whom the conveyance is made. Whoever may be the holder of the debt intended to be secured by the mortgage, will be considered, in equity, as the owner of the mortgage itself. The debt and the mortgage are so inseparably united, the one being, in truth, appurtenant to the other, that a separate and independent alienation of them cannot be made. [In February, 1846, Pearson Clark, the complainant, pur- chased of William Applegarth, a schooner, called the "Emily Ann," for the sura of $2100, and gave in payment, an old ves- sel valued at $500, and three drafts in favor of the vendor, drawn by said Clark, and accepted by the firm of Whittington & Snyder for his accommodation. To indemnify the said firm against any loss by reason of their acceptances, the schooner was conveyed to them by a bill of sale from Apple- garth, with the understanding that they were to convey it to Clark, on payment of the draft by him. Clark failed to make any payments on these drafts, other than a small one of about a hundred dollars ; and the residue of the first two, except $350 was paid by the acceptors. For this balance of $350, CLARK VS. LEVERING. 179 a new acceptance was given by said Whittington & Snyder, of a draft of John W. Fowler in favor of Clark, and by him en- dorsed to the firm of B. Deford & Co. Whittington & Snyder afterwards failed in business ; and Frederick A. Levering and John C. Bridges having become their assignees, claimed to hold the schooner exclusively for the benefit of the general creditors of their insolvents, and advertised it for sale. The complain- ant filed his bill against them for an injunction, and prayed that the vessel might be sold under the direction of the court ; and the proceeds, after payment of the purchase money, assign- ed to him. A sale was subsequently made by agreement, and the case referred to the Auditor, who applied the proceeds, (after deducting the costs) proportionally, to the payment of the unsatisfied draft held by Applegarth ; of the one held by Deford & Co. ; and of the claim of the defendants on account of the payments made by their insolvents, (the proceeds being insufficient to pay them all in full,) Applegarth, and Deford & Webb, excepted to this account, because their claims were not allowed in full, instead of being placed on an equality with those of the defendants. Proof was offered at the same time to show that the draft held by Deford & Webb, constituted one of the claims against the schooner Emily Ann. The Auditor having stated another account dated 3d December, 1847, un- der the instructions of the complainant's solicitor, allowing said claims in full, the case came before the Chancellor, on the question of its ratification.] THE CHANCELLOR: There can be no doubt, that the bill of sale, though absolute in its terms, is in this court to be considered as a mortgage ; the object being to secure the payment of a debt, and not to transfer the title absolutely to the parties to whom the convey- ance was made. Hicks vs. Hicks, 5 G. fy /., 75 ; Dougherty vs. McColgan, 6 ibid., 275. And it seems to me there can be as little doubt, that the debt intended to be secured, was that due the vendor of the vessel, and for which the bills were given ; and that the holders 180 HIGH COURT OF CHANCERY. of those bills must consequently, in a court of equity, be regard- ed as the mortgagees. The principle settled by the authorities appears to be this : that whoever may be the holder of the debt intended to be secured by the mortgage, will be considered in equity as the owner of the mortgage itself; that the debt can- not reside in one person, and the pledge in another ; the former (the debt) being the principal, and the latter the accessory; and that, consequently, in whatsoever hands the debt is found, in the same hands will the mortgage also be found ; that the debt and the mortgage are so inseparably united, the one being in truth appurtenant to the other, that a separate and independent alienation of them cannot be made. Jackson vs. Blodget, 5 Cowan, 202 ; Green vs. Hart, 1 Johns. Rep., 580 ; Jackson vs. Hart, 3 Johns' 1 Cases, 322 ; Pratt vs. Vanwick's ex'rs, 6 G. $ J., 495. It has been decided in Massachusetts, that where a negotia- ble note secured by mortgage, was negotiated without assign- ment of the mortgage, notwithstanding such separation of the note from the mortgage, the latter remained in force, and the mortgagee became a trustee for the holder of the note. Crane vs. March, 4 Pick., 131. But, it is said that Whittington & Snyder having accepted these bills solely for the accommodation of the complainant, and having made payments on account of them out of their own moneys, justice requires that they should at least be put on a footing of equality with the holders of the bills, and be paid rateably with them, out of the proceeds of sales, those pro- ceeds being insufficient to pay the whole sum. The effect of this would be, to put the general creditors of Whittington & Snyder, represented by their assignees, upon an equal footing with the holders of the bills. But, why should this be so ? It is true, these parties did ac- cept these bills for the accommodation of the complainant, Clark ; but it is equally true, they did mean to put themselves, and did put themselves, between the holders of the bills and loss. In truth, with reference to the holders of these bills, Whittington & Snyder as the acceptors became the principal CLARK VS. LEVERING. debtors, holding in their hands as security for the debt, and their indemnity, the mortgage upon the vessel. With what propriety, then, can they or their assignees, repre- senting their general creditors, say that the holders of these bills, for whose security the arrangement was made, shall participate with them in the loss resulting from a sale of the vessel for less than the amount which the complainant stipulated to pay for her. Though Whittington & Snyder were to be indemnified for their risk in accepting the bills, they certainly were to in- demnify the holders of them ; and one of the instruments of in- demnity was the mortgage upon the vessel, executed to them by the vendor Applegarth. Suppose Whittington & Snyder had made no payment on the bills, but had other claims against the drawer ; and the contest was between their assignees, representing their general creditors, and the holders ; could there be a doubt in that case, that the proceeds of the sales would be awarded to the holders of the bills ? But why so ? why simply and exclusively because the mortgage to Whittington & Snyder was for their benefit, as the holders of the claims intended to be secured by it. But if the court in the case supposed, would award the proceeds to the parties holding the bills, in preference to the general credi- tors of Whittington & Snyder, why shall they not have the same preference, notwithstanding the partial payment made by those persons ? They are, it is true, in respect of such partial payment, creditors of the fund ; but their claim upon it, or to be indemnified out of it, is subordinate to the claim of the hold- ers of the bills, and must give way until they are satisfied in full. Such being my opinion, I shall pass an order ratifying the account of the Auditor, of the 3d instant, which is stated upon this view of the relative rights of the parties. . [No appeal was taken from this order.] VOL. i 16 182 HIGH COURT OF CHANCERY. CHRISTOPHER LITTLE ^ vs. > DECEMBER TERM, 1847. JOHN R. PRICE ET AL. ) [EFFECT OF AN INJUNCTION ON PROCEEDINGS AT LAW LIMITATIONS.] THE object of an injunction to stay proceedings at law, either before or after judgment, is to prevent the party against whom it issues, from availing him- self of an unfair advantage, resulting from accident, mistake, fraud, or other- wise, and which would, therefore, be against conscience. If such unfair advantage has been already obtained, by proceeding to judgment, the court will in like manner control the judgment, and restore the party to his original rights. This can only be done by depriving his adversary of every advantage, which the judgment thus improperly obtained, gives him, and cannot be limited merely, to restraining him from proceeding upon it at law. Hence, an injunction commanding and enjoining the complainant, to cease from all proceedings on his judgment recovered at law, was held to operate to restrain him from proceeding in equity. It is well settled by the Maryland decisions, that chancery will never interfere with judgments at law, where the party's own default, or neglect, has made an application to the latter tribunal necessary. The running of the act of limitations is suspended by an injunction [The facts in this case are fully stated in the Chancellor's opinion.] THE CHANCELLOR: This is a creditor's bill filed against the devisees and others, representing, or supposed to represent, the real and personal estate of Hyland Price, deceased, and prays for a sale of the real estate left by him, upon an allegation of the insufficiency of the personalty. The bill was filed on the 21st of August, 1846, and alleges, that in the year 1822, the complainant obtained a judgment of condemnation against the said Price, upon an attachment which he had sued out on a judgment in his favor against one George Davidson, rendered in 1819 that he had subsequently issued a scire facias on the said judgment of condemnation, and ob- tained a fiat executio at April term, 1829, of the Cecil County Court, with a stay of execution until January, 1830 that the LITTLE VS. PRICE. 183 complainant would have proceeded to execute his judgment at law, but was restrained by an injunction granted by this court, upon a bill filed by Price, the defendant^ which was not dis- solved until the conclusion of the March term, 1846 that Price having died, leaving a will sufficient to pass real estate, and his personal estate in the hands of his executors being insuf- ficient to pay his debts, a sale of the real, in the hands of his devisees, is prayed for. The answer of such of the defendants as are of age, to this bill, insists, that the judgment of the condemnation against Hy- land Price in 1822, was the result of an agreement between him and the complainant, by which it was stipulated that payment thereof would not be enforced unless such payment would ope- rate as a discharge of a bond which Price, the defendant, had given to one Philemon C. Blake, for his interest in certain real estate, upon which the said Davidson alleged he had a mort- gage that Davidson had in fact no claim to the mortgage in his individual capacity ; the same, if in his possession at all, being held by him as administrator of his father James David- son, to whom it had been given by Blake that the bond which Hyland Price had given Blake, had passed into the hands of other parties, by whom, under the circumstances stated in the answer, a decree by the court was obtained for the payment thereof; and the answer begs leave, at the trial of this case, to refer to the proceedings in the injunction cause, and also the cause in which the said decree was passed. The injunction bill by Hyland Price, was filed on the 14th of January, 1830. He died in the year 1842, and his execu- tors having become parties, the answer of Little was filed on the 10th of December, 1845, and a motion then made by him to dissolve the injunction, which was accordingly dissolved by the Chancellor's order of the 27th of April, 1846 ; and on the= 5th of June following, the complainants in that cause prayed an appeal to the Court of Appeals, where it is still depending. The prayer of this bill thus filed by Price, is for an injunc- tion to be directed to the said Little, commanding and enjoin- ing him to cease from all proceedings on the judgment afore- 184 HIGH COURT OF CHANCERY. said, and for general relief, and the order of the Chancellor was in conformity with the prayer. Under these circumstances the cause, originating upon this creditor's bill, is brought on for hearing, and the solicitors of the parties have been heard. The complainant, Little, founds his right to>a decree for the sale of the real estate of Hyland Price exclusively upon the judgment of condemnation of 1822, and the fiat executio of 1829. Upon these, and upon the alleged insufficiency of the personal estate, he insists that he is entitled to a decree for the sale of the realty. He denies emphatically the right of the de- fendants to look behind these judgments, by which he main- tains that Hyland Price, and all who represent him, are con- cluded. It is not the purpose of the court, at this time, to intimate any opinion upon the merits of this case, or to express in any way the conclusions to which the Chancellor may come, upon full consideration of the circumstances under which those judg- ments were rendered ; because, according to the view which I now take, it would be premature at this time to pass a decree in this cause. The counsel for the complainant argued that the injunction granted upon the bill filed by Price in 1830, and which was not dissolved until 1846, and upon which an appeal is now depend- ing in the Court of Appeals, did not operate to restrain this complainant, Little, from proceeding in equity, and, that the whole effect of the prohibition was to prevent proceedings at law upon the judgment. This, however, is not the view which I take of the subject, and as the bill in this case was not filed until after the dissolution of the injunction, though Price died in 1842, it may be inferred it was not the view at one time taken by the complainant himself, as it is difficult to assign a rea- son for the delay in filing the bill until after the dissolution of the injunction, unless it was thought that its continuance was a legal or equitable impediment to such a proceeding. But, independently of any inference to be drawn from the con- duct of the complainant, and in the absence of any direct au- LITTLE VS. PRICE. 185 thority upon the question, it seems very clear, that the effect of the injunction must be much more extensive than is conced- ed to it by the complainant's solicitor. The object of an injunction to stay proceedings at law, either A before or after judgment, is to prevent the party against whom \ it issues, from availing himself of an unfair advantage, resulting from accident, mistake, fraud, or otherwise, and which would therefore, be against conscience. In such cases the court will interfere, and restrain him from using the advantage which he has improperly gained and, as Mr. Justice Story says, "if any such unfair advantage has been already obtained, by proceed- ing to judgment, the court will in like manner control the judg- ment, and restore the injured party to his original rights." The judgment, then, is not only to be controlled, but the party against whom it was unfairly obtained is to be restored to his original rights, which can only be done by depriving his adver- sary of every advantage which the judgment thus improperly obtained gives him, and cannot be limited merely to restraining him from proceeding upon it at law. 2 Story's Equity, sees. 885, 886, 887. Besides, it would, indeed, be singular, if a court of equity should interfere by injunction, to prevent a party from obtain- ing at law, the fruits of a judgment unconscientiously obtained, and sjbould at the same time permit that same party, by a pro- ceeding in equity, to get the benefit of the condemned judg- ment. Suppose, for example, in this case, the Court of Chan- cery upon the injunction bill, or the Court of Appeals upon ap- peal to that tribunal, should ultimately decide that the judg- ment obtained by Little against Price was obtained under cir- cumstances which would render it inequitable in him to enforce, and upon that ground, should decree a perpetual injunction ; would it not be strange, if the same court upon the application of the plaintiff in the judgment, to give him the advantage of it, should so decree. The court would be in one breath say- ing, this judgment was unfairly obtained, and its extraordinary power would be exerted to prevent the court in which it was rendered from enforcing it, and in the next, that the party who 16* 186 HIGH COURT OF CHANCERY. comes here for relief, upon the footing of that very judgment, has shown himself entitled to equitable relief. It seems to me impossible that a doctrine fraught with such consequences, can be maintained ; and, therefore, to avoid inconsistent and antagonistic decrees in relation to the same matter, I am of opinion that this case cannot now be decided. It has been said, that the court cannot, as this case stands, look at the proceedings in the injunction case ; but seeing that both the bill and the answer refer to them the former for the purpose of accounting for the failure of the plaintiff to execute his judgment at law, and the latter praying that the defendant may be allowed to refer to them at the trial of this cause it seems to me that I cannot shut my eyes to their existence ; and upon looking at those proceedings, and seeing that a decree may be passed by the Court of Appeals, upon the appeal, which might render a decree in favor of the complainant in this case unavailable, I cannot think it would be proper now to proceed to a final decree. [The order of the Chancellor of the 27th of April, 1846, dis- solving the injunction, having been affirmed by the Court of Appeals at June term, 1848, and the difficulty suggested in his foregoing remarks consequently removed, the Chancellor, in his opinion of the 28th July, 1848, said :] An effort has been made to impeach the judgment of the com- plainant, but, I think, without success. Though the judgment of condemnation of 1825 was by de- fault, that of fiat executio of 1829 was by confession, and I am unable to see anything in the circumstances, as shown by the proceedings in this case, or in the case referred to in it, which should induce a court of equity to refuse to give effect to it. The reluctance with which courts of equity interfere with judgments at law is conspicuous in the adjudged cases, and it is believed to be well settled by the Maryland decisions, that chancery never will so interfere, where the parties own default, or neglect, has made an application to the latter tribunal neces- JONES VS. HANCOCK. 187 sary. Carr vs. Gott, 6 Gill & Johns., 312 ; Fowler vs. Lee, 10 ibid., 358. I do not think there is anything in the delay in bringing the case growing out of the bill filed by Price in 1830, to a close, which should now cause this court to treat the judgment as an invalid security, as it is quite obvious that Price might himself have long since brought that case to an end. I think the executors of the deceased are properly before the court as such, and that there is evidence of the sufficiency of the personal estate. The running of the act of limitations was suspended by the injunction from 1840 to 1846, and therefore the plea of the stat- ute is no defence. My impression, therefore, is, that here is a valid unsatisfied judgment, and that the personal estate of the deceased debtor is insufficient to pay him ; and not seeing in the objection urged by the defendant's counsel any reason why the court should not pass a decree for the sale of the real estate left by the debtor, a decree will be signed accordingly. But, for the sake of con- venience, and to avoid conflict and confusion, this case will be consolidated with the case upon the mortgage referred to in the proceedings. [No appeal was taken from this decree.] SAMUEL JONES, JR. vs. ^- DECEMBER TERM, 1847. ROBERT B. HANCOCK ET AL. [MECHANICS' UEN.] THE law relating to the lien of mechanics and others upon buildings, only pre- fers such lien te every other lien or incumbrance, which attached upon the building, subsequent to the commencement of the same. If there be liens on the property, prior to the commencement of the building upon which the work is done, or for which the materials are found, the lien for work and materials must be postponed to such prior incumbrance. 188 HIGH COURT OF CHANCERY. The act of 1845, ch. 287, sec. 4, gives no right to a party to enforce this lien upon the proceeds of sales of machinery Though a party having a lien on a building for work and materials, may come intoacourt of law or equity for his shareofthe proceeds ofasale, made under its authority, no such right is given when such proceeds arise from the sale of machinery. [This case was argued on exceptions to the Auditor's report, filed on the 13th July, 1847. The claims of the exceptants under the lien law of 1838, chap.' 205, and the various supple- ments thereto, especially those of 1845, chapters 176 and 289, having been rejected by the Auditor, the question brought before the court was, how far this law with its supplements ap- plied to the case of the exceptants. The facts of the case are sufficiently disclosed in the opinion of the Chancellor:] THE CHANCELLOR : The exceptions to the report of the Auditor, were submitted to the Chancellor for his decision by an agreement of the parties, filed on the 8th of the present month, (December, 1847.) In pursuance of that agreement, the papers were laid before me on the 13th, and on the 14th upon an examination of the acts of assembly, I came to the conclusion, that the claims of Wells & Miller, and Edward G. Dorsey, excepting creditors, could not be supported as liens, upon the proceeds of the sale made by the trustee in this case, and ratified the Auditor's report, by which they were excluded. After this decision was made, though on the same day, written arguments in behalf of these parties, were received by the register, who deemed it his duty, again to lay the case be- fore me ; and, in so doing, he was quite right ; though it must be apparent to all concerned, that it would be far better, and much more satisfactory, if cases were withheld from the Chan- cellor, until they are actually ready for decision, and if argu- ments are to be made, they should be made before the judg- ment of the court is asked for. I consider it proper, now, however, to state briefly the grounds of my opinion. JONES VS. HANCOCK. 189 The property sold by the trustee in this case, consisted of a certain lot and buildings in the city of Baltimore, and the ma- chinery and fixtures attached to and connected therewith, which had been mortgaged by Hancock and Mann, to Dawson and Norwood, by three several deeds of mortgage, the first of which was executed on the 31st day of July, 1845, The trustee, whose sale was made on the 15th February, 1847, sold the property in the lump, for the round sum of twenty- thousand five hundred dollars, and the sale was finally ratified and confirmed on the 14th June, 1847, after public no- tice duly given, and without exception. The proceeds are insufficient by many thousand dollars, to pay the vendor's lien for the balance of the purchase money of the lot, and the amount due on the mortgages to Dawson and Norwood, which were assigned to Samuel Jones, Jr., and by him to Wynn and Ross. These creditors, Wells and Miller, and Edward G. Dorsey, claim to have a lien upon the proceeds of sales, upon the ground, that the sums due them, are for work done, and mate- rials found, for machinery put up in the factory, which was erected upon the premises, and they rely upon the 4th section of the act of 1845, chapter 176, being a supplement to the act of 1838, chapter 205, relating to the lien of mechanics, and others upon buildings. The first section of this act declares, "that the work done, and materials furnished for, or about the erection or construc- tion of any building," &c., "shall only be preferred to every other lien or incumbrance, which attached upon such building subsequent to the commencement of the same, and the ground covered by, and necessary for the ordinary and useful purposes of such building. But, if there be liens on the property prior to the commencement of the building upon which the work is done, or for which the materials are found, it follows that the lien, if for the work and materials, must be postponed to such prior incumbrance. And the 4th section, relied upon by these creditors, says, "that every machine hereafter to be erected, constructed, or re- 190 HIGH COURT OF CHANCERY. paired, within the city of Baltimore, shall be subject to a lien in like manner, as buildings are made subject under the provi- sions of this, and the original act." Now, if the property upon which the machinery in question was constructed, was subject to a lien or incumbrance, prior in date, to the commencement of the buildings in which the machinery was placed, why then the parties doing the work upon, and finding the materials for such machinery, are defer- red by the law to the holder of the prior lien or incumbrance. In this case, the first of the mortgages to Dawson and Nor- wood, is dated on the 31st of July, 1845, and the presumption, therefore, is not a violent one, that it attached upon the prop- erty, before the buildings, within which was the machinery supplied by Wells and Miller, were commenced. But again, the attempt here is to enforce the lien, not upon the machinery itself, but upon the proceeds of sales made by the trustee, when, as appears by his report, the whole property, including lot, buildings and machinery, were sold in mass, for one round sum, and there is no evidence, whatever, to show, what the machinery was worth at the period of sale, or how much it increased the price of the property. The court, therefore, has no guide by which the money could be apportioned, and if it undertook to do so, must rely upon mere random conjecture. There is, moreover, another difficulty. The right to come in upon the proceeds of sales made under the decree of this court, is founded upon the 4th section of the act of 1845, chap. 287> being an additional supplement to the lien law. But this sec- tion gives no right so to come in upon the proceeds of sales of machinery. The language is, "that in all cases of sales made under a judicial process," &c., "of any building to which a lien for work done or materials found attaches, the proceeds of such sale shall be applied and distributed, in such manner and form, as shall be just and equitable, and as shall apportion the same among the claimants thereto, according to their respective rights and priorities." It would seem, therefore, that though a party having a lien JONES AND WHITE VS. BROWN. 191 on a building for work or materials, may come into a court of law or equity, for his share of the proceeds of a sale made under its authority, no such right is given, when such proceeds arise from the sale of machinery. Upon the whole, I am of opinion, that as against the lien of the vendor, and the mortgage, these parties cannot be allowed to prevail in this court upon these proceeds of sale. [An appeal was taken from this order but is not yet decided.] JONES AND WHITE } vs - DECEMBER TERM, 1847. LLOYD BROWN ET AL. \ [HUSBAND AND WIFE MARRIAGE SETTLEMENT.] BY a marriage settlement the property of the wife was conveyed to trustees, for the benefit of the wife, during coverture, free from the control, and not lia- ble to the debts of her husband, with power to the wife to dispose of the same, either by last will and testament, in writing, or by any other writing signed by her hand in presence of two witnesses. The wife died without mak- ing any disposition whatever of the property. It was HELD That the contract did nothing more than suspend the marital rights of the husband during the life of the wife ; and, upon her death, the property re- mained precisely in the same condition it would have been in if no such pow- er of appointment had been created ; and, consequently, the rights of the hus- band revived upon her death. When it is intended in a marriage settlement to exclude the rights of the hus- band to the personal property of the wife, in the event of his surviving her, and in default of her appointment, an express provision to that effect should be inserted in the deed. When the settlement makes no disposition of the property in the event of the wife's death, and provides only for her dominion over it during coverture, the right of the husband, as survivor, is a fixed and stable right, over which the court has no control, and of which he cannot be divested. [In the month of November, 1841, a marriage being at that time in contemplation, between Drusilla Elliott and Lloyd Brown, the latter, for the purpose of securing to the former the 192 HIGH COURT OF CHANCERY. undisturbed enjoyment of the property, of which she was then seized and possessed, or to which she might be entitled in ex- pectancy, entered into a contract with her, and the complainants as trustees, not to intermeddle with her property in any manner, but to permit her to appropriate it to her own use, or to such other use or uses, as she, in the manner specified in the contract, might appoint. The marriage was consummated between the said Brown and Elliott, shortly after the execution of this con- tract, and the latter having subsequently become entitled, under the will of her uncle, to certain real and personal property, the greater portion thereof came into the hands of trustees, who permitted the said Brown and wife, to hold the same for several years ; at the expiration of which time, the wife died, leaving two children, the issue of said marriage ; without having made any disposition of the trust property ; and leaving unpaid, sev- eral debts contracted by her, and for which her creditors contend- ed, that her separate estate was responsible. After her death, her husband continued to retain possession of the property, contending that, as no appointment in pursuance of the power furnished by the contract, had been made by his wife, the con- tract could no longer operate to debar him of his marital rights. The bill was filed by the trustees, to obtain the direction of the court, as to theirproper course in regard to the husband's claim, and to ascertain, whether the trust had expired, and if the cred- itors of the deceased could consequently proceed at law to re- cover the said debts.] THE CHANCELLOR : It appears to me, that the antenuptial contract in this case, does nothing more, than suspend the marital rights of the hus- band, during the life of the wife, with power reserved to her, to dispose of the property by will, in writing, or by any other writing whatever, executed in the mode prescribed by the in- strument, and the wife having failed to make such testamentary, or other disposition, the rights of the husband are revived by her death. There is nothing in this contract, which in terms, or by ne- JONES AND WHITE VS. BROWN. J93 cessary implication, excludes the right of the husband, in the event of his surviving the wife, and in default of her exerting the power which was reserved to her, to dispose of the property by will, or by a writing in her lifetime, executed in the mode pointed out. The language of the settlement is, that "notwithstanding the marriage shall take effect, all the rents and profits of the real and personal estate, of which Drusilla Elliott, is now seized, and possessed, or entitled to in expectancy, which shall become due, and payable to her the said Drusilla Elliott, and, also, the interest thereon due or to become due, also the reversion and reversions of the said real and personal estate, shall be account- ed, reckoned and taken, as the separate and distinct, real and personal estate of, and from the estate of him, the said Lloyd Brown, and be in nowise liable or subject to him, or to the pay- ment of any of his debts, but with the profits or increase, that shall thereafter be gotten, gained, or made, of the same, be or- dered, disposed, and employed, to such person, or persons, to, and for such use, and uses, intents and purposes, and in such manner, and form, as is hereinafter mentioned and declared ; that is to say, that the ready money arising or accruing out of the said separate and distinct, real and personal estate, of which the said Drusilla Elliott, is now seized and possessed, or which she may be entitled to, in expectancy, shall from time to time be placed out at interest, on such securities, as the said Drusilla shall think fit ; which securities, during the .coverture, shall be taken and made, in the names of the said Henry Jones, Jr., and William Q. White, or the survivor of them, or in the name or names of such other person, or persons, as the said Drusilla, shall order and appoint, in trust for her, said Drusilla Elliott"-^ " "and that, all the separate and distinct estate, as before des- cribed, declared and allotted, for the said Drusilla Elliott, as aforesaid, and the produce, and increase thereof shall be had, taken, held, possessed, and enjoyed, by such person, orpersons, and for such use and uses, as the said Drusilla Elliott, shall, at any time or times, hereafter, during her life, limit, devise, order or dispose of the same, or any part thereof, either by her last VOL. i 17 194 HIGH COURT OF CHANCERY. will and testament, in writing, or by any other writing what- soever, signed with her hand, in the presence of two or more creditable witnesses." There can be no doubt, that these provisions in the deed, freed the property and its proceeds, from the control of the hus- band, and from responsibility for his debts, during the coverture, and that the wife might at any time, during her life, in the way designated, have appointed the uses to which it should be ap- plied after her death. She did not, however, exercise this pow- er, and it follows, therefore, as I think, that upon her death the property remained precisely in the condition it would have been in, if no such power of appointment had been created ; and the marital rights of the husband, being only suspended during the coverture, at once attach upon it. In the case of Steward vs. Steward, 7 Johns. Ch. Rep., 245-6, the Chancellor says, "I believe it has been the inva- riable practice, and that the uniform course of the precedents will show it, that when it is intended in a marriage settlement, to exclude the rights of the husband to the personal property of the wife, in the event of his surviving her, and in default of her appointment, an express provision to that effect is inserted in the deed" and in the same case, the Chancellor also ob- served, "when the settlement makes no disposition of the prop- erty in the event of the wife's death, and provides only for her dominion over it during coverture, the right of the husband, as survivor is a fixed and stable right, over which the court has no control, and of which he cannot be divested. The deed of settlement which was under examination in that case, was substantially, in many of its provisions, like the pres- ent, and the decree was in favor of the right of the husband ; the wife having died without exercising the power of appoint- ment. In the case of Ward et ux. vs. Thompson, 6 Gill $ Johns., 349, the doctrine of the case of Stewart vs. Stewart, was fully confirmed, though the court made a decision adverse to the right of the husband, because by the deed he did not make a mere temporary surrender of his marital rights, but in the Ian- JONES AND WHITE VS. BROWN. 195 guage of the Court of Appeals, "abandoned them forever." Upon examining the settlement in Ward and Thompson, it will be found, that the husband agreed that, all the property men- tioned in it should "be under and subject to the exclusive, and entire management and control of the said Ann W. Menger, (the intended wife,) her heirs, executors, administrators or as- signs," "and the said Ann W. Mengers her heirs, executors, ad- ministrators orassigns, to receive and enjoy the rents, issues and profits thereof," without the interference in any manner of the said Robert Thompson" (the intended husband.) By the ex- press terms, therefore, of that deed, there could be no doubt, that the husband not only meant to surrender his marital rights dur- ing the coverture, but that he intended to surrender them to the heirs and representatives of the wife, as well as to the wife herself. And it was upon this express ground, that the Court of Appeals based their decision against him, and in favor of her representatives. It is true, there are in the deed now under consideration, some provisions, which do look to a continuance of the trust beyond the life of the wife ; but these provisions have regard merely to the change of investments, and do not in any way alter the uses to which the investments shall be held. The words being, "that the new securities, &c. ; shall go and remain upon the same trusts and for the same intents and purposes, as the original stocks," &c. ; and these original stocks, as we have seen, were, during the coverture, to be taken and made in the names of the trustees, or the survivor of them, and with all the estate of the wife, to be subject to her appointment by will, or deed, executed in the presence of two witnesses. This provision in the deed is certainly not very intelligible, and not easily reconcilable with other portions of the instrument, and cannot, therefore, have the effect, of destroying that fixed and stable right of the husband, which Chancellor Kent says, can only be divested by an express provision. [No appeal was taken from this decision.] 196 HIGH COURT OF CHANCERY. FREEBORN G. WATERS vs. J> MARCH TERM, 1848. REBECCA WATERS ET AL.. [WILL, CONSTRUCTION OF TRUSTEE AND CETERIS QUE TRUST.] A TESTATOR, after disposing of certain portions of his estate, devised all the residue of his property to the complainant, in trust, to hold the income, rents and profits of one-third part of said residue for the use of his grandson, the defendant, during his life ; such income, &c., to be paid to him, from time to time, as they might accrue, and after his death to his children, in fee ; and failing children, to other grandchildren to whom the remaining two-thirds were in like manner devised. At the time of the testator's death, the grand- son was indebted to him in a large sum of money ; but, it appearing that the testator did not mean to regard him as his debtor in respect thereof, it was HELD That, to enforce the payment of this debt out of the defendant's share of this income and profits, would defeat the clear intention of the testator to provide his grandson a competent support. That it was the duty of the complainant, the trustee, to retain the amount of a loss, occasioned by the failure of the defendant, to comply with the term? upon which he purchased a part of the trust estate, out of the income of said trust estate, payable to the defendant. [The late Charles Waters, died on the 12th May, 1S46, leaving a last will and testament, whereby, after sundry dis- positions of a portion of his estate, he devised all the residue thereof, to the complainant, in trust, to hold the income inter- est, rents and profits, of one-third part of said residue, for the use of his grandson, the defendant, Charles A. Waters, during his life such income, &c., to be paid to him from time to time, as they might accrue ; and after his death, to his children in fee, and failing children, to other grandchildren, to whom the remaining two-thirds were in like manner devised. Certain disputes arising amongst the devisees of deceased, a bill was filed in this court by the complainant, Tor the adjustment of their differences. A petition was subsequently filed by him, in the cause, stating that the devisee, Charles A. Waters, was in- debted to the testator, in his lifetime, in a large sum of money, for which his share of the estate ought to be liable ; that he WATERS VS. WATERS. 197 had possessed himself of certain negroes, and other personal property of the deceased, claiming the same under a gift from him ; and, was also in possession of a tract of land in Balti- more county, belonging to the testator's estate, which he re- fused to deliver to the petitioner, although, by a decree of the Chancellor, passed in January, 1848, in a cause between the said Charles A. Waters, complainant, and Charles Howard, and others, defendants, it was declared, that the said Charles A. Waters, had no title to said real and personal property, and that although an appeal was taken from the decree by said Waters, he had failed to give bond for the prosecution thereof; and contended, that it would be better for all parties, to permit him to retain possession of the property, and make his share of the estate in the hands of the trustee, responsible for the prosecution of the appeal. The petitioner further stated, that, at a sale made by him as trustee, the said Waters, became a purchaser of a part of the testator's estate, but he refusing to comply with terms of sale, the same was resold at a consider- able loss, with which the share of said Waters, in the estate of the deceased, was properly chargeable. The object of the petition, was to obtain the directions of the court, as to the manner in which the trustee should act under the circum- stances. An answer was put in to the petition, and same testimony taken in relation thereto ; and the cause having been heard at this term, the Chancellor delivered the following opinion :] THE CHANCELLOR : Upon considering the petition, filed by Freeborn G. Waters, in this case, on the 20th of March last, and the answer thereto, and the other proceedings in the cause, and after hearing the counsel, my opinion is, that the share of the income and profits of the trust estate, in the hands of the petitioner, to which under the will of the testator, Charles Waters, his grandson, Charles A. Waters is entitled, are not chargeable with the claims against the said Charles A. Waters, which are stated to have become due to the testator in his lifetime my opinion 17* 198 HIGH COURT OF CHANCERY. upon this point, is founded upon the conviction, looking to all the proceedings and evidence in the cause, that the testator did not mean to regard him as his debtor in respect of those claims, and that to enforce them, in the only way in which they can be enforced, and in the mode the petition proposed, by appropriating his share of the income and profits to their payment, would defeat the clear intention of the testator to pro- vide his grandson a competent support. But, with regard to the claim mentioned in the petition, growing out of the failure of the said Charles A. Waters, to to comply with the terms, upon which he purchased a portion of the estate sold by the trustee, Freeborn G. Waters, and the loss upon a resale thereof, I think the said Charles A. Waters, is liable to the trust estate, and that it is the duty of the said trustee, to retain the amount of the said loss, when ascertained out of the income of the trust estate payable to the said Charles A. Waters. I am also of opinion, that the said Charles A. Waters is chargeable with the rents, hires, and profits, of the real and personal estate, in the proceedings mentioned, in the case of the said Charles A. Waters, against Charles Howard and wife, and others, and in which this court passed a decree on the 28th of January last ; and for any waste or deterioration of said estate, caused by the negligence or misconduct, of the said Charles A. Waters, whilst the same has been in his possession, since the death of the said testator, if any such waste or de- terioration shall be proved. This opinion rests upon the intention of the testator, as re- marked upon in deciding the said case of Waters vs. Howard and others, to place his grandchildren upon a footing of equality which would be defeated, if the said Charles A. shall be per- mitted to receive the rents and profits of the property in his possession, and appropriate them to his own use, and likewise receive his full proportion of the income of the residue of the trust estate. And, if by his negligence or misconduct he shall impair the value of that portion of the trust estate, to the possession of WILLIAMS AND BRADFORD VS. WILLIAMS. 199 which he has, in my judgment, no right, nothing can be fairer, or more equitable, than that the loss shall fall upon him alone. I do not think, that the share of the trust estate of the said Charles A. Waters, in the hands of the trustee, can be made responsible for the prosecution of the appeal, which, it appears has been taken by him, the said Charles A., from the decree passed upon his bill, against Charles Howard and others but until that appeal shall be decided, I see no objection to per- mitting the said Charles A., to retain the possession of the said property, he being chargeable with the rents and profits there- of, to be retained from his share of the income of the residue of the trust estate. An order will be passed in conformity with these views, with liberty to the petitioner, to apply for further directions as to proceedings, to secure possession of the trust estate, in the possession of the said Charles A. Waters, should circumstances render it necessary. [No appeal was taken from this order.] WILLIAMS AND BRADFORD } vs. C MARCH TERM, 1848. GEORGE H. WILLIAMS ET AL.J [CHANCERY PRACTICE PRODUCTION OF BOORS AND PAPERS.] SINCE the assembly of 1798, ch. 84, there can be no doubt of the power of this court, in a proper case, to compel either of the parties to a suit to produce books and papers in the possession of the adverse party, which may relate to matters in issue between them. But, this is a power to be exercised with caution, and the party calling for its exercise should, with a reasonable degree of certainty, designate the books and papers required, and the facts expected to be proved by them. [On the 19th December, 1843, George Williams, of Harford county, applied for the benefit of the insolvent laws of Mary- land, and at May term, 1844, of Harford County Court, ob- 200 HIGH COURT OF CHANCERY. tained his final discharge ; his son George H. Williams be- ing appointed his permanent trustee. At the time of said application, the insolvent in his schedule stated, that he held one hundred and seventy-five shares of the stock of the Savage Manufacturing Company ; of which, fifty-five shares were un- incumbered, eighty-five were mortgaged to Birckhead and Pearce, and thirty-five were mortgaged to Martha Weld. The unincumbered shares were sold by the trustee at public sale, and those mortgaged to Birckhead and Pearce were advertised for sale, though no sale of them was made ; and the interest of the mortgages in them was subsequently assigned to John S. Gittings. A bill was afterwards filed by the wife of the in- solvent, claiming seventy-five of the last mentioned shares as having been purchased with her money, and placed to the credit of John Hawkins, (whose administrator united in her suit,) in trust for her benefit ; and a decree was passed in said cause in her favor. This claim was resistetl by the present complain- ants, who also filed their bill against said Elizabeth Williams and others, for the suspension of the proceedings instituted by her, and seeking to enforce claims which they professed to hold against the insolvent, out of the said mortgaged shares ; on the ground, that the said shares were bought by the insolvent with his own money, and although conveyed by him to said Hawkins^ for the use of his wife, he had done this to defraud his creditors, and had himself always exercised acts of ownership over the prop- erty. The claim of said complainants having been resisted, and finding it necessary to examine George H. Williams, the permanent trustee, one of the defendants, and to have the books and papers of the insolvent, who was not a party, produced by said trustee, in whose possession they were, they petitioned for an order for that purpose, which was granted at first, but was subsequently suspended, as to the production of the books and papers, and the matter of the petition set down for hearing. Upon which the Chancellor delivered the following opinion :] WILLIAMS AND BRADFORD VS. WILLIAMS. 201 THE CHANCELLOR : There can be no doubt of the power of this court in a proper case, to compel either of the parties to a suit, to produce books and papers in the possession of the adverse party, which may relate to matters in issue between them. If the power could have been questioned before, the act of 1798, ch. 84, would dissipate it ; for the legislature by that act, in express terms, conferred upon the Chancery Court power and authority to co- erce the production of books, writings or papers, or certified copies of such parts thereof, as contain evidence pertinent to the issue, or relative to the matters in dispute between the parties, either in cases depending in the courts of law, or in this court. The power, therefore, is free from doubt, but as observed by a former Chancellor, it is a power to be exercised with caution, and the party calling for its exercise should, with a reasonable degree of certainty, designate the books and papers required, and the facts expected to be proved by them. Unless this is done, the party upon whom the authority of the court is brought to bear, may find it impossible to comply with its order, which yet must be enforced by attachment. The rules which have governed this court, 'upon the subject of compelling the production of books and papers, are stated with much precision in the cases reported in 1 Bland, 90, in notes ; and in Duvall vs. the Farmers' Sank, 2 Bland, 686. The petition in this case does not attempt to designate the books and papers called for, nor the facts expected to be proved by them ; and, therefore, is clearly deficient in those qualities which have been deemed essential in applications like the pres- ent. The defendant, George H. Williams, could not comply with the order, without producing all the books and papers in his possession, though the production of many of them might be wholly unnecessary the facts recorded in them being wholly irrelevant to the matters in issue between these parties and the exhibition of them embarrass and prejudice him in the administration of his trust. The original order in this case should have been conditional, and with liberty to the defendant to show cause ; and, therefore, 202 HIGH COURT OF CHANCERY. the order of the 13th of October last, was improvidently passed. The question now, however, comes up on the application to rescind that order ; and, as for the reasons stated, I think a sufficient foundation is not laid for the order asked for. It is, thereupon, ordered, that the order of the 12th of December last, suspending so much of the order of the 13th of October last, as required the defendant, George H. Williams, to produce books and papers, be made absolute ; and, that the said order of the 13th of October last, to that extent, be, and the same is here- by, rescinded. [No appeal was taken from this order.] CASPER MANTZ, ADMINISTRATOR,} vs. MARCH TERM, 1848. BUCHANAN ET AL. 3 [DOWER.] THERE can be no doubt, that a wife, notwithstanding she joins her husband in a mortgage, may, nevertheless, take her dower in the land subject to the mortgage ; and, that she has a right to redeem, and may call upon the per- sonal representatives of her deceased husband to apply the personal assets to the extinguishment of the mortgage debt, so as to free her dower from the incumbrance. It is equally clear, that if a wife in Maryland relinquishes her dower in land? mortgaged by her husband, upon private examination, according to the act? of assembly upon the subject, and the lands are sold to satisfy the mortgage debt, whatever may be her right to a proportion of the proceeds of sale, she cannot, as against the purchaser, claim dower in the land. The claim of a widow for dower is a highly favored one ; and with respect to a devise accepted by her in lieu of it, she is, by the terms of the act of as- sembly and by judicial decision, regarded as a purchaser for a fair consider- ation. Where the widow had received an assignment of her dower in the lands, by a court of competent jurisdiction, and the lands were subsequently sold under a a decree to satisfy the mortgage debt ; it was HELD that this assignment did not deprive her of the right to be provided for out of the remaining estate of her husband. The law intends to give the widow one-third of the husband's real estate, by- way of dower, and as a provision for her support ; but she takes it subject to liens created prior to the marriage, or to such as she consents to after the marriage, in the mode pointed out by the legislature, and she can take no more. MANTZ VS. BUCHANAN. 203 [On the 22d May, 1830, the late Honorable John Buchanan, of Washington county, being indebted to Casper Mantz, in the sum of ten thousand dollars, in order to secure its payment, with interest, in two years, executed to him a mortgage of the farm on which he then resided ; and his wife united in the ac- knowledgment of the deed, for the purpose of relinquishing her dower. Mantz died in the year 1839, and on the 17th Janu- ary, 1844, a bill was filed in this court by his administrators, c. t. a., for a sale of the mortgaged premises. A decree was ac- cordingly passed on the 27th February, 1844 ; and the said Buchanan died in October of the same year, intestate, leaving said mortgage debt still unpaid. In January, 1846, no sale hav- ing yet been made under the decree, a bill was filed by George M. Eichelberger, who held as trustee certain judgments against the mortgagor, on behalf of himself and of the other creditors of the mortgagor, against his heirs at law, and the complainants in the first bill ; reciting the previous proceedings alleging the sufficiency of the personal estate, and the continuance of the mortgage debt, with interest ; and praying that the trustee ap- pointed by the former decree, might proceed to make sale of the mortgaged premises, for the benefit of the creditors of the deceased mortgagor. A decree was passed as prayed, and the property was sold on the 29th of December, 1846. In the month of September of the following year, an order was passed on the petition of Maria S. Buchanan, widow of the deceased mortgagor, allowing her a proportion of the whole of the net proceeds of sale ; the residue thereof, after payment of the mort- gage debt, appearing amply sufficient for that-purpose. But on a petition of Eichelberger in the behalf of creditors, stating that dower in said lands had already been assigned to her by the Washington County Court, sitting as a court of equity, that order was rescinded, and a day fixed for hearing the matters of the two petitions. The first question presented to the court, for decision, was, whether Mrs. Buchanan was precluded from claiming any share of proceeds of the sale by the proceedings in Washington Coun- ty Court. 204 HI GH COURT OF CHANCERY. And the second was, whether, if not so precluded, she was entitled to a proportion of the entire net proceeds of the sale reg- ulated by the chancery sale, provided her claim did not affect the mortgage debt, or only to a proportion of the surplus, after satisfying that lien. To the first of these the Chancellor said :] THE CHANCELLOR: It has been argued by the solicitor of the judgment creditor, that Mrs. Buchanan, by the proceeding in Washington County Court, assigning her dower in these lands, has made her election to take in that form, and that she cannot now claim any part of the purchase money. There can be no doubt that a wife, not- withstanding she joins her husband in the mortgage, may never- theless take her dower in the lands, subject to the mortgage, and that she has a right to redeem and may call on the personal representatives of her deceased husband, to apply the personal assets to the extinguishment of the mortgage debt, so as to free her dower from the incumbrance. 4 Kent's Com., 44 ; 2 Powell on Mortgages, 701. But, it is equally clear, that if a wife, in Maryland, relin- quishes her dower in lands mortgaged by the husband, upon privy examination, according to the acts of assembly upon the subject, and the lands are sold to satisfy the mortgage debt, whatever the right of the wife may be, to a proportion of the proceeds of the sale, she cannot, as against the purchaser, claim dowef in the land. The principles settled by the Supreme Court of the United States, in the case of Sidle vs. Carroll, 12 Peters, 201, are considered as conclusively establishing this proposition. And such is also shown to be the law in New York, and in several other states, in 4 Kent, 44. It follows, therefore, that notwithstanding the widow of the mortgagor in this case had received an assignment of her dower in the lands by a court of competent jurisdiction, the subse- quent Sale under a decree to satisfy the mortgage debt, has effectually deprived her of the benefit of the assignment, and that unless she is entitled to a proportion of the purchase money, she can get nothing. MANTZ VS. BUCHANAN. 205 The claim of a widow for dower is a highly favored one, and with respect to a devise, accepted by her in lieu of it, she is, by the terms of the act of assembly, and by judicial decision, re- garded as a purchaser for a fair consideration. Act of 1798, ch. 101, sub-ch. 13, sec. 5; Gibson vs. McCormick, 10 Gill Sf f Johns,, 67. Suppose in this case it had happened, that a title paramount to the title of the mortgagor had been outstanding in some third person, and after the assignment of the dower, this title had been successfully asserted, and the doweress turned out of pos- session, would she not have had a right to be compensated out of the other lands of her husband, if he left any? It is suppos- ed she would, and that the rule applicable to jointures made subsequent to the marriage, from which the widow has been fairly evicted by law, would extend to a doweress legally dis- possessed of the lands assigned to her in dower. It does not clearly appear in this case, of what other lands the mortgagor died seized, though from the language of the mortgage, in describing the premises, as all the lands of the mortgagor lying "south-east of Hagerstown," it is fair to be inferred that he held other lands. Now, presuming such to be the case, and that the widow, by a defect in the title of her husband, had been deprived of the lands assigned her in dower, would not justice require, that some compensation should be made her out of those other lands, or must she be held rigor- ously to the assignment, be the consequences what they may ? There cannot be a question, that, under the act of assembly of 1818, chap. 193, sec. 10, Mrs. Buchanan, would, but for the proceedings on the equity side of Washington County Court, be entitled to dower to some extent in these lands ; because, notwithstanding the mortgage, the equitable title was in the husband, and the act in terms declares, that widows shall be entitled to dower in lands held by such title, and the question, therefore, is, whether this proceeding in Washington County Court, shall deprive her of this right, when it is obvious, her title to the lands assigned her in that proceeding, must yield to the subsequent sale, to satisfy the mortgage. VOL i. 18 206 HIGH COURT OF CHANCERY. When dower is assigned the widow by the heir, or by the sheriff, On a recovery against the heir, there is an implied war- ranty, and if the tenant in dower is impleaded by one having a paramount title, she may vouch, and recover against the heir, a third part of the two remaining parts of the land, of which she is dowable. Park on Dower, 275. The rule then in the case of jointures made after the marriage, and dower is the same, and if, in either case, the widow is law- fully evicted, she has a right to be provided for out of the re- maining estate of the husband; and when it is apparent from the record, as in this case, that the land assigned the widow as dower, has been passed to the third party by the act of the court, and it has a fund under its control, out of which she may be compensated, it would certainly seem equitable, that it should be applied to that object. I am, therefore, of opinion, that Mrs. Buchanan is not pre- cluded by the proceedings in the Washington County Court from claiming a proportion of the purchase money of these lands. [As to the second question, the Chancellor said, the practice of the court had been, to allow widows a proportion of the en- tire net proceeds of sale, where it could be done without preju- dice to the party claiming the original purchase money, or to the holder of other liens contemplated by the law ; but that the question had never been deliberately considered, on argu- ment, by his predecessors. He said that, in many of the states, including Maryland, a wife joining her husband in a mortgage, would, at his death, be entitled to dower, subject to the mort- gage, notwithstanding a release by him, of the equity of re- demption. 4 Kent, 44; Tabele vs. Tabele, 1 Johns. Ch. Rep., 45 ; Titus vs. Neilson, 5 Johns. Ch. Rep. 452. But that, such claim was confined to the equity of redemp- tion. Swain vs. Ferine, 5 Johns. Ch. Rep., 482 ; 4 Kent, 39. He said also, that this equity was represented by the surplus remaining after satisfaction of the mortgage debt ; and that Mrs. Buchanan, by joining in the mortgage with her husband, MANTZ VS. BUCHANAN. 207 agreed, that in the event of her surviving him, the debt should be satisfied out of the estate, before the claim for dower should attach. The Chancellor then said :J It seems not to be denied, and indeed the highest court in this state is understood to have decided, that where lands are sold to satisfy the lien of the vendor, and a surplus remains, the wife is only entitled to an allowance out of such surplus, but it is insisted, that her right is not to be thus restricted, where the lien is of any other description. The act of assem- bly, however, makes no discrimination between the lien of the vendor and other liens. It says, "such right of dower shall not operate to the prejudice of any claim for the purchase money of such lands, or other lien on the same." This other lien, if by the act of the husband without the concurrence of the wife, must, it is said, have reference to liens created prior to the mar- riage, and this it is thought is the sound construction. But if the wife does concur, by uniting in the mortgage, or relinquishing her dower, the lien must be attended with the same conse- quences, as if created before the marriage, or residing in the vendor for the security of the purchase money. The legislature, it is supposed, intended to give the wife dower only in the interest remaining in the husband, after satis- fying the vendors' lien, or other lien existing prior to the mar- riage, or created afterwards, with her concurrence ; as, other- wise, it is not difficult to imagine cases in which much preju- dice might be inflicted upon creditors. Suppose in this case there had been no surplus proceeds of sale, after satisfying the mortgage debt, but the mortgagor had owned other real estate which had been sold for the purpose of paying general creditors, or for partition among the heirs ; would the widow have been entitled, out of the proceeds of such sale, to receive not only her proportion of them but her pro- portion of the proceeds of the mortgaged lands? It could, I think, hardly be contended. Or could she, if she applied for an assignment of dower in the other lands, have asked, that she should receive a share of 208 HIGH COURT OF CHANCERY. of them, and also an equivalent for her proportion of the sales of the lands sold to pay the mortgagee ? It would be difficult to make out such proposition, and yet it would seern to follow from the position, that a widow, out of the proceeds of land sold to pay a debt, secured by a mortgage in which she has unit- ed, is entitled to an allowance, calculated upon the whole pro- ceeds of sale, and not merely upon the surplus, after paying the mortgaged debt. The law intends to give the widow one-third of the husband's real estate, by way of dower, and as a provision for her support, but she takes it subject to liens created prior to the marriage, or to such as she consents to, after the marriage, in the mode pointed out by the legislature, and she can take no more. If the contrary doctrine prevail, it will not unfrequently hap- pen, that the widow will not get one-third only, or its equiva- lent, but the whole surplus, after paying the liens, will be re- ceived by her, to the prejudice of the heirs at law, and creditors. The widow was, therefore, allowed by the decree, one-four- teenth of the surplus only of the proceeds of sale after deduct- ing the mortgage debt with interest. [No appeal was taken from this decree.] ROBERT SEW ALL ^ vs. C MARCH TERM, 1848. SYLVESTER J. COSTIGAN ET AL.3 [POWERS AND" DUTIES OF TRUSTEES.] A TRUSTEE for the sale of lands under a decree of a court of equity, is the mere instrument or agent by whose hands the court acts, and the sales made by him are, in fact, the sales of the court. The court has the incontestible power to pass an order, directing the trustee to bring the proceeds of sale into court, to be disposed of under its direction. The court is not disposed to look with favor upon the appropriation by its trustee of the proceeds of sales, without its previous authority ; and such conduct will be viewed with especial jealousy where married women and children are concerned, and the property, or fund raised by the sale, is sub- ject to marriage settlements, designed for the support of families. SEW ALL VS. COSTIGAN. 209 [This case was argued on exceptions to the Auditor's report, and on a motion by John H. Key, a conventional trustee, and one of the parties, for an order on the trustee appointed to make sale of the real estate, to bring into court the sum of $3,639 80, a part of the purchase money received by him. The original bill was filed to enforce a vendor's lien, and the real estate was sold under a decree, which, as usual, directed the trustee, appointed to make the sale, to bring the proceeds into court. After the payment of the purchase money a large surplus was left, which was claimed by John H. Key, as trustee, under a marriage settlement, which gave him the estate sold, in trust, for the purchaser until her marriage, for her husband during his life without being liable for his debts, for the wife after the death of her husband, in fee, but if the wife died, leaving her husband or the child or children of the marriage, and if none, for her heirs. There was a covenant on the part of the husband to apply the personal estate of the wife to the payment of the pur- chase money due to the complainant, and an authority to John H. Key the trustee, with the assent of the husband and wife, to sell and re-invest. The trustee and the husband and wife were parties to the original proceedings. The first objection to the application to bring the money into court was, that Key was acting under a private conventional trust with which this court had nothing to do. To this objec- tion the court said :] THE CHANCELLOR: Gough, the trustee, by whom this sale was made, under the authority of a decree of this court, is its mere officer and agent, and by the very terms of his authority, w r as required to bring the proceeds of sale in, to be disposed of under its direction. In fact, the sale made by him, is the sale of the court, he being the mere instrument or agent by whose hand the court acts. It is the sale of the court and not his sale, and when he under- took to act as its agent in this respect, he became bound as well by the spirit, as the letter, of the power delegated to him, to obey its orders. Can it be possible, that this court has not 18* 210 HIGH COURT OF CHANCERY. the power to compel its own agent to bring in the proceeds of property sold under its authority, that application may be made of such proceeds to the purposes contemplated by the decree? This is not a question between the court and Key, the conven- tional trustee, but between the court and the trustee of its own appointment, and as to him, I apprehend, the power to pass the order asked for, is incontestible. Glenn vs. Clapp, 1 1 Gill Sf Johns., 8; Penn vs. Brewer, 12 ib., 113 ; Mullikin vs. Mulli- kin, 1 Bland, 538 ; Iglehart vs. Armiger, ib., 527. [The second objection was, that on the sale of the estate by a trustee of the court appointed for that purpose, the trustee ap- pointed by the parties was functus officio, and could claim no interest in the fund raised by the sale ; and that, at all events, the husband and wife as being beneficially interested, ought to have united in the motion. To this, it was answered by the court :] By the terms of the deed, the trustee was, under the circumstances therein mentioned, authorized to sell the proper- ty, and the proceeds were to be invested upon the like trusts and uses, and subject to the same powers and purposes, as were declared with regard to the land, and I take it to be very clear, that the investment spoken of in the deed, was to be made in the name of the same trustee, and that now, the fund being un- der the control of this court, the investment must be made in his name, unless some satisfactory reason is assigned for the se- lection of another. John H. Key was an indispensable party to the original bill filed in this case Story^s Eq. Plead., 187 and being thus a party to the cause, it not only was his priv- ilege, but his duty, if he saw, or thought he saw, the trust fund in danger, to interpose for its protection. Having so interposed, it does not become the agent of this court, whose duty it was to sell the property, and deliver the proceeds of sale over to the court, to say, that he is spurred on to do that which, by the terms of the decree, he was required to do by a party who has no interest. [The third objection was, that the trustee for the sale under SEW ALL VS. COSTIGAN. 211 the decree, had made advances for the support of the husband and wife and paid money in discharge of the debts of the hus- band, which ought to be reimbursed ; and, that no order ought to be passed for bringing in the money until the husband and wife answered a petition of the trustee for the sale, as to those advances, filed on the day of the hearing. To this the court said :] The sums thus alleged to have been advanced by the trustee, Gough, nearly absorb the whole trust fund, and not in- tending, at this time, to pronounce an opinion in reference to them, I cannot well understand how the trustee of this court, who was certainly not required to complicate himself with such transactions, but whose duties were plain and simple, shall be permitted, by passing beyond the line of his duty, to exonerate himself from those obligations which the decree appointing him imposed upon him. The court is not disposed to look with favor upon the appro- priation by its trustee, of the proceeds of sales of property made under its decrees, without its previous authority, and such ap- propriations have been condemned upon former occasions. Mac- kubin vs. Brown, IBland, 410 ; Iglehart vs. Jlrmiger, ib., 519. And, more especially, will such conduct be viewed with jealousy, when married women and children are concerned, and the property or fund raised by the sale, is subject to mar- riage settlements, designed for the support of families. Pay- ments made under such circumstances, cannot be offered as an excuse for not doing that which the decree plainly directed to be done. But, it is said, that Costigan was, under the marriage settlement, entitled to the usufruct of this property for life; and, therefore, -to that extent, the appropriation was strictly within the terras of the trust. Conceding that Costigan was so entitled, it by no means follows, that the trustee, Gough, was justifiable in making the applications. He was not the trustee of Costi- gan and wife, but the trustee of this court, authorized to sell the property and bring the avails in, to be disposed of under the di- rection of the Chancellor ; and it would be strange if he could rid himself of this duty, by assuming a character to which he 212 HIGH COURT OF CHANCERY. has no title, but which the parties interested had conferred upon another and different person. It is manifest, also, that he has gone far beyond the limits to which he must have been confined, even if he could be viewed as the trustee of Costigan and wife, and that if such conduct is sanctioned, the trust estate will, in a very short time, be ut- terly annihilated, and the rights of the parties entitled in re- mainder entirely defeated. v The power delegated to this trustee was clearly defined, and has been unquestionably transcended; and I am, therefore, of opin- ion, that the order of the 12th of May last, must be made absolute. [No appeal was taken from this decree.] :i ROBERT CONN ET AL. vs. J> MARCH TERM, 1848. JAMES CONN ET AL. [POSTHUMOUS CHILD SEPARATE ESTATE OF MARRIED WOMEN.] COURTS of equity will use all possible ingenuity to construe testamentary ex- pressions, in such manner as to include all children living at the testator's death ; and, a child in ventre sa mere is considered as living at that time. When the testator stands in the relation of parent to the legatees, a court of equity will lay hold of any general expression, which will include all the children, though it may be apparent from the context, that only children in existence when the will was made, were within the contemplation of the testator. Yet, when it is evident, that the testator really forgot that other 'children might be born to him, and has, upon the face of the instrument, made provision for only such as were living at the date of the will, it is impossible to supply the defect and give such after-born child any provision, notwithstanding the anx- iety of the court to do so. Where the testator has described the children, by name, among whom the estate is to be divided upon the happening of a contingency, it is impossible to bring a posthumous child within the description. Before the separate estate of a married woman can be charged for her engage- ments, it must be shown that her contract was made with direct reference to such separate estate ; and she is not to be regarded with respect to such estate, as a feme sole, to all intents and purposes, and bound by any form of contract into which she may please to enter, whether made with reference to such estate or not. It is competent to show the intention of the wife, to charge her separate estate, by parol evidence . CONN VS. CONN. 213 [William Conn, deceased, by his will dated 14th June, 1821, devised all his property, (consisting of real estate in Baltimore county,) after payment of his debts, &c., to his wife Elizabeth Conn for life ; to be divided equally amongst all his children, whom he mentioned by name, in case she should marry before his youngest child, Margaret, arrived at the age of twenty-one years. Should she marry before, the division was not to be made till his said daughter attained that age ; but if such marriage should afterwards occur, the division was to be made immediately. Six months after the testator's death his widow had a son, Silas W. Conn, for whom no provision was made in said will; and afterwards in the year 1833, she intermarried with James Hall of Baltimore county, and died in the year 1841, leaving no issue by said Hall, who survived her. By deed of trust and settlement, between said Elizabeth, and James Hall, and James Conn, executed a few days before the marriage, her personal property was conveyed to James Conn, in trust, for her sole and separate use, with power to dispose of the same as if she were zfeme sole, and invest the proceeds in such manner as she thought fit ; and also, with the power to dispose of the same by will. After her marriage to Hall, she purchased of four of the children of her first husband, the interest which they severally had in their deceased father's estate. The real estate of the testator, Wm. Conn, was, after the death of his widow sold under proceedings in this court, and two accounts were stated by the Auditor, assigning the proceeds of sale to the parties entitled under the will of the testator. Before such distribution was actually made, a peti- tion was filed by Edward Jenkins and others, stating that said Elizabeth, during her second marriage, had been possessed of a separate estate, and had traded as a feme sole, with the con- sent of her husband ; that she, together with him, had made to the petitioners, respectively, a single bill, and two promissory notes ; and had died, without paying the same, and leaving no assets except the funds then in court for distribution. The petition further stated, that James Hall, was also dead, insolv- ent, and prayed for an application of the said funds, to the 214 HIGH COURT OF CHANCERY. satisfaction of the petitioner's debts. A petition was filed for the same purpose, by John Glenn, as permanent trustee of an- other creditor, of said Elizabeth, on a note given during her coverture, by her and her son Thomas, with whom she had traded, under the firm and style of Thomas Conn & Co., said note was given in April, 1839, and the firm afterwards failed, and Thomas Conn obtained his discharge under the insolvent laws. The statute of limitations was pleaded against all these claims, but was afterwards withdrawn against all but the latter, which was marked No. 4, the three first being numbered, re- spectively, 1, 2 and 3. In the subsequent account of the Auditor, the proceeds of sale were distributed amongst the children of William Conn, including the posthumous child Silas W. Conn, and the portion which in the previous accounts was assigned to them as heirs at law, of their mother, was therein applied to the part satisfaction of the claims filed. Exceptions to this account were filed, and submitted to the Chancellor on written arguments, the principal points raised being, whether the posthumous child of William Conn, was entitled to a share of his father's estate ; and, whether the separate estate of Elizabeth Hall, could be applied to the satisfaction of the claims filed :] THE CHANCELLOR: It is true, that a court of equity will use all possible ingenu- ity in construing testamentary expressions in such manner as to include all children in existence at the testator's death ; and, that a child in ventre sa mere is considered as living at that time. And, it is also true, that when the testator himself stands in the relation of parent to the legatees, in which case it is his duty to provide for his children at his death, a court of equity will lay hold of any general expressions which will include all the children, notwithstanding, it may be apparent from the context, that only children in existence when the will was made were within the contemplation of the testator. Yet, even as between parent and child, when it is evident that he really forgot that other CONN VS. CONN. 215 children might be born to him, and has, upon the face of the instrument, made provision for only such as were living at the date of the will, it is impossible to supply the defect, and give such afterborn child any provision, notwithstanding the anxi- ety of the court to do so. 1 Roper on Legacies, 146, 3 ves., 611. . In this case, the testator has described the children byname, among whom the estate was to be divided upon the happening of either contingency upon which the estate to his widow was to determine ; and, it is impossible, therefore, to bring this posthumous son within the description. He must, therefore, be excluded from the distribution. [As to the second question, the Chancellor said :] These creditors of Mrs. Elizabeth Hall, rest their right to be paid their several claims out of the proceeds of her real estate, upon the ground, that by the marriage contract between her and her husband, Hall, her estate was settled to her separate use ; and there can be no doubt that a feme covert, with respect to her separate property, will be regarded in a court of equity, to some extent at least, as a feme sole, and may dispose of it with- out the assent of her trustee, unless she is specially restrained by the instrument by which she acquires the separate estate. Eminent judges have differed, it is true, with regard to the pre- cise limits of this pow^r. Some insisting, that the mode of dis- position pointed out in the instrument (and none other) must be pursued ; whilst others have held, that even though a par- ticular mode is specifically pointed out, any other may be adopt- ed, unless the instrument itself restrains the wife to the particu- lar mode. Methodist Church vs. Jaques, 3 Johns. Ch. Rep., 77 ; Jaques vs. Methodist Church, 17 Johns. Rep., 548. As, however, in this case no particular mode of disposing of the property settled upon Mrs. Hall is pointed out, but she is, by the instrument, left at liberty to dispose of it as if she was a feme sole, there is no necessity for expressing any opinion upon the point in regard to which the Court of Errors and the Chancery Court of New York appear to have differed. 216 HIGH COURT OF CHANCERY. In the case of Price and Nlsbet vs. Bigham, 7 Harr. and Johns., 296, a contract by a married woman, to charge land conveyed to a trustee, for her separate use during the coverture, with power to sell and convey, and absolutely dispose of the same, was maintained ; and the land charged by her with the payment of the debt was held liable therefor in equity. The court, in this case, put their decision upon the ground, that the charge was within the meaning and spirit of the disposing pow- er ; and expressly waived any decision of the question of the validity of the contract, upon the broad ground of treating the wife, in respect of the property settled to her separate use, as a skigle woman ; resting their decision upon the special charge by which she made it liable. The case of Tiernan vs. Poor and wife, 1 G. # /., 216, was a case in which a wife, having the absolute power by deed or contract, to dispose of real estate conveyed to her sole use, after the marriage, without the concurrence of her husband, ex- ecuted to the complainant with her husband, a mortgage upon her separate estate, to secure to him a debt due from her hus- band, upon consideration that the creditor surrendered an ex- isting security. This was decided to be a contract within the limits of the wife's disposing power, and was enforced as such. And in the subsequent case of Brundige vs. Poor et ux. 1 G. Sf Johns., 1. The Court of Appeals decided that a deed executed by husband and wife in the form of a mortgage, of real estate held in trust for the separate use of the wife, though not acknowledged according to the acts of assembly, created a specific lien on the trust property, and it was enforced accord- ingly the deed being to secure the payment of a debt due from the husband, and the consideration being, the giving him time to pay the debt. In all these cases, it will be seen that there was a clear en- gagement on the part of the wife, to charge specifically the property settled to her separate use ; and no allusion is made in either of them, except in the case in 7 Harr. fy Johns., 296, to the effect of a contract on the part of the wife, without such specific charge, regarding her simply as a feme sole. CONN VS. CONN. 217 There is, however, a very decided opinion expressed by the learned judge, who delivered the opinion of this court, in Tier- nan vs. Poor and wife, that the contract by which the separate estate of a married woman is attempted to be charged, must be shown to be within the limits of her jus disponendi, and it is not very clearly seen how this can be done, unless it be also shown that she is contracting for the direct purpose of charging such separate estate. The case of Gray vs. Cook, 12 G. fy /., 236, relates particu- larly and exclusively to the degree of the proof, which it is ne- cessary to produce, of the intention of the wife to pledge her separate estate. There is certainly nothing in that case frt>m which it can be fairly inferred, that the contract of a feme covert will be enforced against her separate estate, unless it is shown that she intended to charge it. It would seem, therefore, in this case, that before these parties can succeed in their application to have the proceeds of the land which has been sold under the decree of this court, (or that portion of it to which Mrs. Hall, is entitled,) charged with the payment of their claims, they must show, first, that her in- terest in the land was part of her trust estate ; and, secondly, that she designed to charge it with such payment. This land was purchased by, and conveyed to Mrs. Hall, during her coverture ; notwithstanding which the conveyance is good, there being no act declaring the dissent of the hus- band, nor a waiver or disagreement thereto by the wife, after his death. 2 Kent's Comm., 150, lecture 28. The property embraced in the marriage settlement was per- sonal, merely ; and for that reason, as well as because the set- tlement was executed long prior to the deeds conveying the land to her, the settlement could not comprehend the latter. Upon the face of the instruments, therefore, the property, the proceeds of which are sought to be affected by these proceedings, consti- tuted no part of the trust estate ; and although the marriage settlement provided for a sale of the property embraced in it, and a reinvestment of the proceeds in other property or funds, there is nothing in this case to show such sale and reinvestment, VOL i. 19 218 HIGH COURT OF CHANCERY. and of course it does not appear that the land in question was purchased with the product of the trust estate, and has been substituted for it. These lands, therefore, are not shown to have been a part of the trust estate. And even if there were grounds for inferring, that the lands were so purchased, and that they are to be considered as con- stituting a part of the trust estate of Mrs. Hall, and subject to her disposition in equity, as a feme sole, these creditors would still, in my judgment, not be entitled to be paid out of the pro- ceeds of their sale, unless they could also prove that she intend- edfrto charge -them with the payment of their claims. Although a married woman having a separate estate, is, with respect to it, to be regarded as a feme sole, yet her capacity to act as such, is to be confined to that very property, and she is not as to all intents and purposes placed on the same footing with an unmarried woman. I have not been able to find any American case in which the power of the wife over her sepa- rate estate, has been carried farther ; and Chancellor Kent, in the elaborate opinion delivered by him, in the case of the Meth- odist Church vs. Jaques, 3 Johns. Ch. Rep., 77, over and over again approves of this limitation upon the power of the wife. The act, to be binding, must be with respect to her separate property ; and although she may not, in the disposition of her separate estate, be confined to the particular mode pointed out in the instrument, yet I apprehend, that before her separate es- tate can be charged for her engagements, it must be shown, that her contract was made with direct reference to such separate estate ; and that she is not to all intents and purposes, as to it, to be regarded as a feme sole, and bound by any form of con- tract into which' she may please to enter, whether made with respect to her separate estate, or not. Still, looking to the case of Gray vs. Cook, 12 G. & /., 236, I am of opinion, that it would be competent for these parties to show by parol evidence, that Mrs. Hall, when she entered into the engagements, upon the strength of which they now attempt to charge the proceeds of these lands, designed to CONN VS. CONN. 219 pledge her separate estate ; and if they can succeed in doing so, and can likewise remove the other objections which stand in their way, they may be entitled to be paid. The claims numbered 1, 2, and 3, are, as has been stated, founded upon the joint notes of James Hall, the husband, Eliza- beth Hall, the wife ; and although it is admitted, that he as well as his wife, died leaving no personal estate, it is not shown that he left no real estate ; and consequently, in any event, without further proof, the estate of the wife could be charged with no more than one-half of the claim. To make her estate liable for the whole claim, regarding it as a joint debt, the in- solvency of James Hall, must be shown. I do not concur with the reasoning of the counsel for these creditors, that it is immaterial whether the land was settled to the separate use of Mrs. Hall, or not; and that a liability can be fastened upon her, upon the ground that she traded and dealt as a feme sole. The cases of Clayton vs. Jidams^ 6 T. jR., 545, and Mar- shall vs. Rutten, 8 T. R., 545, are conclusive against any such doctrine. Under all the circumstances of this case, I shall order it to stand over for a reasonable time, with liberty to these creditors to furnish evidence, if in their power, to remove the objections which have presented themselves to my mind, to the payment of their claims in the present state of the proceedings ; reserv- ing the power to pass such further orders in the premises, as the nature of the case may require. [No appeal was taken in this case.] 220 HIGH COURT OF CHANCERY. CHARLES DIXON ET AL. vs. MARCH TERM, 1848. HENRY R. W. DIXON ET AL. [ASSIGNMENT or VENDOR'S LIEN.] UNLESS an express contract can be shown for the transfer of the vendor's lien, it will not pass to the assignee simply upon the footing of the assignment of the debt. There are cases in which the benefit of the vendor's lien has been extended to third persons ; but they are cases in which the principle of marshalling as- sets has led to such results, or where sureties, who have been compelled to pay for their principals, have been, by substitution, clothed with all the rights and remedies of those whose debts they paid. There has been no case found where the assignee of a note or other security, given for the purchase money of land, has been permitted to sustain a claim of this description on an implied agreement to assign the lien, though cases may be found, in which, by express agreement, the lien has passed to the assignee of the bond or note. The lien being intended to secure the payment of the purchase money to the vendor, an assignment of the notes or bonds given therefor, without respon- sibility, and for value, is equivalent to payment and extinguishes the lien. [This cause was brought to a hearing, and argued on excep- tions to the Auditor's report, the main point at issue being whether the assignee of a bond given for the purchase money of land conveyed by the vendor to the vendee, can claim the benefit of the equitable lien of the vendor, without any express agreement for the transfer of such lien, to the prejudice of the creditors of the vendee. On the 25th of August, 1841, Noah Dixon, executed two single bills to John W. Martin, to secure the payment of the pur- chase money of land sold by Martin to said Dixon, which were by said Martin assigned to the present holder, on the 25th June, 1842, with guarantee of payment. The land was conveyed to said Dixon on the llth October, 1841, who died in 1844, leav- ing an estate inadequate to pay all the claims against it, al- though he was in solvent circumstances at the time of the as- signment, which took place on the 25th of June, 1842. One of the bonds became due in August, 1843, and the other in August, 1844, but no evidence was produced of any proceed- DIXON VS. DIXON. 221 ings to collect them from the obligor until they were filed in in this case in March, 1847. After referring to the case of Repp vs. Repp, 12 G. fy J., 341 ; to show that the lien would have existed for the security of the vendor, notwithstanding the conveyance of the claims had not been assigned. The Chancellor goes on to say :] THE CHANCELLOR: But in this case the claims have been assigned, and it is in- sisted that the equitable lien of the vendor passed to the as- signee by virtue of the assignment. No case has been, or as it is believed can be, found, estab- lishing this proposition to the extent contended for here, and the opinion of the late Chancellor was directly against it. Igle- hart vs. Jlrmiger, 1 Bland, 519. [After alluding to the case of Schnebly and Lewis vs. Ragan, 7 G if /., 120, in which the Court of Appeals of this state in reviewing the opinion of the court in 1 Ohio Rep., 318, decid- ing that the vendor's lien is an equity that arises to the vendor for his own safety, but cannot be transferred to another, say : "we are not, however, prepared to go to the full extent of this decision, if the court meant to say, that the assignees could not obtain the benefit of this lien by express contract." The Chan- cellor continues :] It is certainly fairly inferrible, however, that the Court of Ap- peals meant to give their sanction to the decision in Ohio with that qualification only, and that unless an express contract could be shown for the transfer of the lien, it would not pass to the assignee simply upon the footing of the assignment of the debt. Cases have, or may be referred to, in which the benefit of the vendor's lien has been extended to third persons, but these cases are supposed to rest upon principles entirely distinguish- able from the present. They are cases in which the principle of marshalling assets has led to this result, as shown in 3 Sug- dens' Vendors, 138, &c., or in which securities who have been compelled to pay for their principals, have been, by substitution, 19* 222 HIGH COURT OF CHANCERY. clothed with all the rights and remedies of those whose debts they paid. The case of Hollingsworth vs. Floyd, 2 H. fy G., 87, furnishes an illustration of this principle, and shows, that under the act of 1763, chap. 23, a surety paying is entitled to an assignment from the creditor, and that upon the established principles of equity, he, the surety, is entitled to call on the creditor, not only for an assignment of the claim, but likewise of all the liens^which the principal debtor may have given him. The same doctrine is maintained by the Court of Appeals in Ghiselin and Worthington vs. Fergusson, 4 H. fy J., 522. I The Chancellor in White vs. Williams, 1 Paige, 502, said, he was not aware of any case where the assignee of a note or other security, given for the purchase money of land, has been permitted to sustain a claim of this description on an implied agreement to assign the lien. Cases may be found in which, by express agreement, the lien has passed to the assignee of the bond or note, but I very much question if any research will discover a case going further, and in which it has been decided that a third party, not connected with the original transaction as a surety, is entitled to the vendor's lien simply upon the ground of an assignment of the debt. Apart, however, from the doctrine that the equitable lien of the vendor does not pass by a mere assignment of the bond or note, it is thought the lien cannot be set up in this case, upon another and distinct ground. The Court of Appeals in Schneb- ly and Lewis vs. Ragan, place their decision upon the ground that the vendor, by the terms of the assignment in that case, was not responsible for the payment of the notes, and that, con- sequently, as to him it amounts to a payment, a satisfaction of the claim. The lien being intended, as they say, to secure the payment of the purchase money to the vendor, an assignment without responsibility and for value, is equivalent to payment and extinguishes the lien. It would hence follow in this case, that if Martin, the vendor, is not now responsible for this money, being discharged therefrom by the neglect of the assignee, to use due diligence for its collection, or from any other cause, the lien would be gone, it existing for the security of the vendor, and continuing only so long as may be required for that purpose. CECIL VS. DORSEY. 223 [The Chancellor after applying the principles laid down in Boyer vs. Turner, 3 H. Of J., 285, and Lewis, use of Ringgold's admr's vs. HoblitzeWs admr's, 6 G. & /., 260, to the facts of this case as stated above, to show neglect on the part of the assignee, in consequence of which and in the absence of any excuse, there could be no recovery, against the assignor, goes on to say :] It would, therefore, seem to follow, that no recovery could be had upon these notes against Martin, the assignor, and that, consequently, the claim, as to him, must be regarded as satis- fied, and the lien of the vendor extinguished. That lien ex- isting for his security, this view of the case, brings it expressly, within the principle decided by the Court of Appeals, in Schneb- ly and Lewis vs. Ragan, before referred to. [No appeal was taken from this decree.] OWEN CECIL vs. > MARCH TERM, 1848. MARY ANN DORSEY ET AL._ [PARTITION RETURN OF COMMISSIONERS PRACTICE.] AN objection to a return made upon a commissioner for partition, that the commissioners did not distribute the estate by lot, but at their own discretion, assigned the several shares to the parties interested, cannot be sustained, either by the practice of the court, the act of Assembly, or the rule of the English Court of Chancery in similar cases. When partition is made by agreement of parties, one of the modes known to the common law is, by drawing lots ; but, there is no authority for saying, that when a compulsory partition is made by judicial process, recourse must be had to lots to determine the portion which each party is to take. The legislature did not mean to confine the commissioners to a particular mode of making the partition ; they may, if they please, award to each of the par- ties his share of the thing to be divided, or they may, at the proper stage of the proceedings, draw lots ; and their return, otherwise unexceptionable, will not be set aside because they have adopted either of these modes. It is a fatal objection to a return, that the value of the estate, in money, has not been stated by the commissioners. 224 HIGH COURT OF CHANCERY. The clause directing the commissioners to take evidence should be added to the form of the commission. The act of Assembly requiring thirty days notice of the execution of the com- mission to be given, is not complied with by stating in the return, that reason- able notice was given ; but the commissioners must say in their return, either that they gave at least thirty days notice, or due notice, according to law. [A partition having been decreed between the parties to this cause, (other than Mary Ann Dorsey,) a commission was is- sued for that purpose, and return made thereon, to which latter various objections have been raised, and their merits argued before the Chancellor. The most prominent objections taken, were : The assignment of the shares to the several parties interested, by the commissioners themselves, without ballot. The omission on the part of the commissioners to ascertain and return the value of the whole estate to be divided, and that of the several parts as laid off by them, or its value, subject to the incumbrance of the widow's dower. And '"the want of due notice to the complainant of the execu- tion of the commission. In considering the first of these, the Chancellor says :] THE CHANCELLOR : This objection, it seems to me, cannot be sustained, whether we regard the practice of the court, the act of assembly, or the rule of the English Court of Chancery in similar cases. To whatever source we are to trace the jurisdiction of the Chancery Court of England in cases of partition, and that there is some obscurity in regard to it is very manifest, it never seems to have been the duty of the agents employed by the court for the purpose, to distribute the estate to be divided, by lot. On the contrary, the general practice has been for the commission- ers themselves to assign to each of the parties his share of the estate. Mlnutt on Partition^ 88, 89. This not only appears from the observations of the authors, but from the form of the commission, and the return of the com- missioners to the Chancellor, as is shown by the precedents at pages 210, 211, 212, of the same book. CECIL VS. DORSEY. 225 It is true, that when partition is made by agreement of par- ties, one of the modes known to the common law is, by draw- ing lots, and the course of proceeding in such cases, is pointed out in Coke Littleton, 167, a. This is when the parties agree that partition shall be made, but do not agree as to the division of the separated parts, which each shall take; but I do not find any authority for saying, that when a compulsory partition is made by judicial proceedings, recourse must be had to lots, or ballots, to determine the portion which each is to take ; on the contrary, it appears to be very clear, that the officers employed by the law for this purpose, are clothed with full authority to make partition among the parties, in the exercise of a sound discretion. Upon the common law writ de partitione facienda, the sheriff, by the oath of a jury, makes partition, and assigns to each party his share of the estate. Coke, 168, b. Jlllnutt on Partition, 70, 71. And the inquisition of the partition thus made, is returned by the sheriff under his seal, and the seals of the jurors, which, when confirmed by the court, is final ; the judgment under which the writ issued being only interlocutory. Jlllnutt, 173. In truth, the proceedings at common law under the writ of partition, and the proceedings by bill in equity in this state, have a near resemblance, the only material difference being, the substitution of commissioners for the jury of view, according to the course of the common law. [The Chancellor after referring to the case of Corse vs. Polk, wherein a similar objection was disallowed by the then Chan- cellor, (Kilty,) proceeds :] Cases have been laid before me, in which the commissioners appointed by this court, have made partition by lot, but in these same cases, they have also made the assignment of other par- cels of the estate, in the exercise of their own discretion ; the case of Dorsey vs. Dorsey decided in 1829, is one of this des- cription. 226 HIGH COURT OF CHANCEilY. In Jones vs. Tottey, 2 Cond. Cfi, Rep., 69, partition among tenants in common, was made by lot, but appears to have pro- ceeded from the act of the parties, and not because the com- missioners supposed themselves restricted to that mode. In the subsequent case of Manners vs. Charlesworth, 8 Cond. Ch. Rep., 376, the commissioners themselves awarded to each party his share of the estate, and though their proceedings were most narrowly scrutinized, no objection on this account appears to have been urged. [After referring to a recent case in the Court of Appeals, in which it was decided, that the proceedings in this court for a partition, must as far as practicable conform to the act to direct descents, of 1820, ch. 191, and commenting upon the true con- struction of that portion of the act relating to the distribution of the shares ; the Chancellor continues :] Upon the whole, my opinion is, that the legislature did not mean to confine the commissioners to a particular mode of mak- ing the partition ; they may, if they please, award to each of the parties his share of the thing to be divided, or if they choose, they may, at the proper stage of the proceedings, draw lots ;, and that their return, if otherwise unexceptionable, will not be set aside, because of the adoption by them of either of those modes. [To the objection, that the value of the estate in money had not been stated in the return of the commissioners ; the Chan- cellor after citing portions of the 8th, 10th and 12th sections of the act of 1820, chap. 191, requiring the same to be ascer- tained by them, and a return to be made of all their proceed- ings to the court, for ratification or rejection ; and deciding, that a statement of the value thereof, signed by three of them, which was sometime afterwards filed, but neither referring to, or in any way incorporated with their return, could not be con- sidered part of the same, continues :] CECIL VS. DORSEY. 227 It seems to me, to be quite apparent, that the revising power of this court, cannot be wisely exercised, and the return rati- fied or rejected as justice shall dictate, unless the value of the whole estate, and the value of the several parts, as ascertained by the commissioners, is reported. The great object to be at- tained, is a partition among the parties interested, fairly and equally in value, according to their several just proportions, and I cannot understand how the court can see , that this is done, if the commissioners, may, or may not, show by their re- turn, the value they have put upon the entire estate, and of each part thereof. The commission in this case, did'not direct the commissioners to take evidence, and in that respect, as is usual, conforming to the interlocutory decree, but my opinion is, that the clause added to the form of commissions by the late Chancellor, and to be found in the Maryland Chancery Prac- tice, 323, should be always added. With regard to the power which it gives, to take the depositions of witnesses, it will be found to agree with the English precedents. Jlllnutt on Parti- tion, 212'; Manners vs. Charlesworth, 8 Eng. Cond. Ch. Rep., 377. I cannot bring myself to think, that the legislature intended to refer so important a matter, as the value of the estate, exclu- sively to the judgment of the commissioners. They are to as- certain its value, and if incumbered, then its value subject to the incurabrance, and to do this, it is indispensable they should have authority to examine witnesses, and the depositions of these witnesses, as a part of their proceedings, are to be return- ed to the court, that an enlightened judgment may be formed upon the question of ratification or rejection. The court, it is true, reposes great confidence in the judgment of the commissioners, who, according to Lord Broughamj are viewed in the capacity of witnesses, as well as arbitrators, but, to enable them to discharge their important and delicate func- tions, satisfactorily and safely, they should be clothed with the supplementary power of calling for the testimony of others, and then, that the court may see, that the conclusion to which they come upon their own personal observation, and upon the testi- 228 HIGH COURT OF CHANCERY. mony of others, is in accordance with the justice of the case, these depositions are to be returned with their proceedings, to the source from whence they derive their authority. [The Chancellor then proceeds to the consideration of the objection made to the return of the commissioners, for want of due notice, of the execution of the commission. After refer- ring to the 14th and 51st sections of the act of 1820, chapter 191, the one requiring thirty days notice of the execution of the commission to be given, and the other declaring a statement in the proceedings, that due notice was given according to law, to be prima facie evidence of the same, and noting the fact of its having been stated in the return, that reasonable notice only was given, he continues :] I do not think this a compliance with the act of assembly, nor do I think there is any thing in the proceedings, or proof, which can break the force of this objection. The notice re- quired by the act of assembly, and the notice, which may, in the judgment of the commissioners, be reasonable, are very different things. They must say, either that they gave at least . thirty days notice, or due notice according to law, (which is the same thing substantially,) or to that effect, or their proceed- ings do not conform to the law. To say that the statement, that reasonable notice was given, is sufficient, would be to refer to the opinion of commissioners in each particular case, the reasonableness of the notice. It will readily be seen, how variable a practice this would introduce ; the extent of the no- tice in each case, depending upon the discretion of the com- missioners, instead of the direction of the law. [No appeal was taken in this case.] DUVALL VS. SPEED. 229 EDWIN W. DUVALL AND ^ PETER SAUSSAR vs. I JULY TERM, 1848. JOSEPH J. SPEED AND JOSIAS PEITNINGTON. j [TRUSTEES UNDER THE INSOLVENT LAWS SALES BY JUDGMENT LIEN OF.] A TRUSTEE selling under a decree of the Court of Chancery, as a general rule, sells the title of the parties to the suit, and nothing more ; and though a pur- x chaser, discovering a defect in his title at the proper time, may be relieved from his purchase by askingfor arescision of the sale, he cannot be permitted, whilst holding on to his purchase, to insist upon having his title perfected by the application of the proceeds of sale, to the extinguishment of the claims of incumbrances, not parties to the suit. A judgment creditor not a party to the suit, is not bound to seek payment out of the proceeds of sales in the hands of the trustee, but may prosecute his lien against the property, after its conveyance to the purchaser. The fact, that the trustee of an insolvent debtor was a party to the suit, does not dispense with the necessity of making the creditors themselves parties. [At the October term, 1840, of Anne Arundel County Court, a judgment was rendered in favor of James Dunn and John Sloan, for the use of J. J. Speed and J. Pennington, as trustees and receivers, against one Vachel Sevier, for the sum of $300, with interest thereon, from the 14th December, 1840, the day on which the judgment was signed, and costs ; upon this judgment a writ of fieri facias was sued out, and duly returned by the sheriff at April term, 1841, as partially satisfied and "nulla bona" the residue. On the 17th May, 1843, Vachel Sevier and wife, executed a mortgage of certain houses and lots, in the city of Annapolis, of which he was seized in fee at the time of the rendition of the above judgment, together with other real property, in favor of one John T. Hodges, to secure to him the payment of a large sum of money, and on the 13th November, 1844, the said Hodges, filed in the High Court of Chancery his bill of com- plaint, against Sevier and wife, praying a sale of the mortgaged premises for the payment of his debt. Before the. defendants answered this bill, viz. on the 22d October, 1845, Sevier ap- VOL. i20 230 HIGH COURT OF CHANCERY. plied for the benefit of the insolvent laws, and one Gabriel H. Duvall was on that day appointed trustee, for the benefit of his creditors ; gave bond as such, and received a deed from the said Sevier : although no property whatever was returned in the schedule of said Sevier at the time of his application, and none, in point of fact, ever came into the possession of his trustee. On the 16th of September, 1846, John T. Hodges filed an amended bill against Sevier and wife, and the said Duvall, alleging, "that subsequent to the date of the mortgage to him, the said Sevier had conveyed, or assigned, all his re- maining interest or equity of redemption in the said mortgaged premises, to the said Duvall, as his trustee, under the insolvent laws, the benefit of which the said Sevier then proposed to take, and praying such relief against the said defendants, as was prayed in his original bill, and the answers having been filed admitting the facts as stated, the cause was so proceeded in, that on the 18th January, 1847, a decree was passed for the sale of the mortgaged premises, Duvall, the trustee, uniting with the solicitor, for the said Hodges, in a request that the same might be signed. On the 15th February, 1847, the com- plainants, Duvall and Saussar, purchased from the trustee ap- pointed by the said decree, the houses and lots in the city of Annapolis, mentioned in the said mortgage, complied with the terms of sale, and entered into possession thereof. It having become necessary, from lapse of time, the defend- ants, Speed and Pennington, caused a scire facias to be issued on their judgment, against Vachel Sevier, the defendant therein, returnable to October term, 1845, of Anne Arundel County Court, and while proceedings upon their scire facias were still pending before a fiat was obtained thereon, and before the final ratification of the sales made, as aforesaid, to the said Duvall and Saussar, viz. on the 29th April, 1847, filed in the case of Hodges vs. Sevier and others, their petition, praying, among other things, -that their judgment might be satisfied, out of the purchase money, in the hands of the trustee, appoint- ed by the decree in the said cause, before the application of any portion thereof, to the mortgage debt of the complainant, DUVALL VS. SPEED. 231 Hodges, upon the ground, that their judgment was a prior lien upon the real estate mortgaged to said Hodges ; which petition was, after argument, dismissed on the 5th June, 1847, because "proceedings were still pending to revive the judgment, and until a fiat was obtained, it must be presumed to have been executed or satisfied." On the 28th June, 1847, the sales were finally ratified, no objections having been filed, and on the 30th July, 1847, an order passed, confirming an auditor's re- port, by which the entire net proceeds, were applied to the payment in part of the mortgage debt of the complainant, Hodges. At the October term, 1847, of Anne Arundel County Court, a fiat was duly entered upon the scire facias, which had issued to revive the judgment in favor of Speed and Pennington, sub- ject to Sevier's discharge under the insolvent laws, and an execution of fieri facias, was subsequently sued out upon the judgment so revived, and duly levied upon the houses and lots in the city of Annapolis, which had been purchased by the complainants, Duvall and Saussar. After this execution had been levied, Duvall and Saussar, on the 15th of January, 1848, filed, in the case of Hodges vs. Sevier and others, a petition, praying, that the judgment in favor of Speed and Pennington, then about to be enforced against the property purchased by them, might be paid out of the funds, in the hands of the trustee who made the sales, or that they might be authorized to pay it, and have the amount so paid, discounted from the purchase money thereafter to be- come due from them. To this petition, an answer was filed by Hodges, the mortgagee, objecting to the relief sought, upon the ground, that the petitioners purchased without any warranty of title, and insisting, that if the court could interfere in behalf of the purchasers, it should do so by rescinding the sale, and as the property sold very low, giving him an oppor- tunity to secure a larger portion, or the whole of his debt. The matter of this petition, was argued by counsel, and on the 6th March, 1848, an order was passed dismissing the petition, and an opinion filed by Johnson, Chancellor, from which the following extracts are taken : 232 HIGH COURT OF CHANCERY. "The answer of Hodges, the mortgagee, to this petition, states, among other reasons in opposition to its prayer, that the property purchased by the petitioner, sold very low, and that, he believes, it could now be sold for more than will satisfy the purchase money, and the amount of the judgment of Speed and Pennington, and, that if this court is disposed to interfere in any way, it should be by setting aside the sale, and putting the property again in the market. But this form of relief, it is understood, the purchasers are opposed to." "The property was sold to satisfy a mortgage, dated on the 17th May, 1843, under a decree passed upon a bill filed by the mortgagee against the mortgagors, for a foreclosure and sale ; and the question is, whether a purchaser at such a sale has a right to insist that all prior incumbrances should be removed, so that he shall receive a clear title, and further, that the right so to insist, continues after the sale has been finally ratified, and the proceeds actually appropriated to the payment of the mortgage debt, by an order of the court." After an examination of the authorities, cited in argument : Glenn vs. Clapp, 11 Gill fy Johns., 10; Brooke vs. Brooke and others, 12 Gill fy Johns., 306 ; Bell vs. Brown's adm'r, 3 Harris fy Johns., 484; Ellicott vs. Ellicott et al., 6 Gill Sf Johns., 35, to show that they did not prevent the strict appli- cation of the rule, caveat emptor, in the present case, "the sale having been conducted by the trustee in the ordinary way, without any stipulation in regard to the title, other than that which resulted from the decree under which he acted," the Chancellor proceeds :] THE CHANCELLOR : If the doctrine contended for by the solicitor for the petition- ers be sound, and the court is bound to disencumber the title of all liens, it might sometimes find itself in an embarrassing situation, and unable to do what the purchaser has a right to re- quire. In the case of Ellicott vs. Ellicott, already referred to, the court said, the mortgagees who were not made parties to the bill, "were not bound to come in and seek payment under DUVAL VS. SPEED. 233 the proceedings in the Chancery Court, for the sale of the de- ceased's real estate, but might cling to the property specifically pledged for the payment of their debt, and hold on until they were fully paid, both principal and interest." But if the court is bound under all circumstances, when the money is within its control, to clear the title, it must have power to bring in the in- cumbrancers, whether they are willing or not, and thus deprive them of the right to stand out, and to cling to the property, which, as has been shown, the Court of Appeals say, they are entitled to do, and thus it might happen that the court would be under an obligation to do that which it could not do, with- out trenching upon the recognised rights of parties, not parties to the cause when the decree passed. Chancellor Hanson, in the case of Miller vs. Baker, reported in 1 Bland, 147, in the note, admits that the vendor of the estate sold under the decree in that case, could not be compelled to receive his money, un- less he exhibited his claim, or was called to answer a bill or petition for a conveyance, and of course concedes, that the court had no power by any proceeding in that case, to clear the title. There is, moreover, another very strong objection to the prayer of this petition. When the order of the 5th June was passed, dismissing the petition of Speed and Pennington, asking for the payment of this same judgment, out of the proceeds of the sales of the property in this case, the trustee's report of the sales had not been ratified, and of course no appropriation had been made of the purchase money. But since then, to wit, on the 28th of the same month, the final order of ratification passed, and on the 30th July, follow- ing, the Auditor's report, appropriating the net proceeds of the sale to the payment of the claim of the mortgagee, in part, leaving still a considerable sum due him, was also ratified, and the money directed to be so applied. It was not until the 15th of January last, nearly six months after the ratification of the report of the auditor, giving this direction to the money, that the present petition was filed, which seeks, so far as the pay- 20* 234 HIGH COURT OF CHANCERY. ment of the judgment is concerned, to reverse that order. This strikes me as presenting a very serious difficulty, though as I am of opinion, that upon other grounds the prayer of this petition cannot be granted, I do not now propose to express a decided opinion upon it. It was suggested in the course of the argument, that the in- solvency of Sevier, the mortgagor, and the appointment of a trustee for the benefit of his creditors, might have some influ- ence upon these proceedings. But as this trustee was made a party to the bill by amendment, and consented to a decree, and a sale has actually been made and reported and finally ratified by the court, I cannot think the proceedings can now be ques- tioned upon this ground. An order will be passed dismissing the petition. [On the llth of April, 1848, Duvall and Saussar filed their bill, praying an injunction against Speed and Pennington, who were proceeding to enforce their judgment against the property purchased by complainants, upon the ground that they pur- chased free, clear and discharged of all claim of the parties to the suit of Hodges vs. Sevier and others that Duvall, the trustee, was a party thereto, and, as such, represented the judg- ment creditors, who could not, therefore, proceed again to sell property which had already been sold by their agent, the said trustee ; that all the interest of Sevier was sold, and the pro- ceeds, if any, were due and payable to the trustee, Duvall, for the benefit of his creditors, and against this fund, alone, in the hands of the trustee, could the judgment creditors proceed, ac- cording to the acts of assembly in such case made and provided ; and, finally, that no proceeding had been instituted against the trustee under the insolvent laws, nor had any claim been exhib- ited to him on account of the judgment aforesaid. Upon this bill, the Chancellor, Johnson, ordered an injunction as prayed, and the answer having been filed, setting forth all the facts as detailed in this report, the cause came on to be heard, upon bill and answer, on the motion to dissolve the injunction. Various questions were raised and argued at the hearing upon DUVALL VS. SPEED. 235 this motion, but the grounds upon which the Chancellor de- cided the cause, will appear from the following extracts from his opinion, filed on the 27th July, 1848, viz.] THE CHANCELLOR: When the application for the injunction was made, I enter- tained very serious doubts as to the propriety of granting it, but not seeing that any material injury could result to the judg- ment creditor, from a temporary suspension of his right to en- force it by execution, and being willing to hear the views of counsel before making up a definite judgment upon the subject, I thought it best to order the injunction, that a more careful considera- tion might be given the case when the motion to dissolve should be made. Upon the petition of these complainants, Duvall and Saussar, filed in the case of Hodges vs. Sevier and wife, the proceedings in which case are made parts of this, I had occasion to examine the question of the extent and character of the title which a purchaser acquired from a trustee selling under a de- cree of this court, and the result was, that "as a general rule, the title of the parties to the suit and nothing more, was sold ;" and, that though a purchaser discovering a defect in his title, at the proper time, might be relieved from his purchase, by ask- ing for a rescision of the sale, he could not be permitted, whilst holding on to his purchase, to insist upon having his ti- tle perfected by the application of the proceeds of sale to the extinguishment of the claims of incumbrancers not parties to the suit. And the petition in that case was dismissed upon the ground, that these defendants, the judgment creditors, were not parties, and their lien, consequently, not extinguished. This decision was made, too, with full knowledge and due reflection upon the fact, that Duvall, the trustee of the insolvent, was a party to the suit, and had consented to the decree ; and, consequent- ly, it follows, that his presence as a party was not considered as dispensing with the presence of the incumbrancers them- selves. Or, in other words, that the trustee was not to be regard- 236 HIGH COURT OF CHANCERY. ed as their representative. But, for this conclusion, the prayer of that petition must have been granted. That this judgment was a lien at the time of the execution of the mortgage to Hodges is incontestibly settled by authority. Murphy vs. Cord, 12 Gill fy Johns., 182; Rankin and Schat- zell vs. Scott, 12 Wheat., 177. And, it is equally indisputable, that if the judgment creditor was not a party to the suit, he was not bound to seek payment out of the proceeds of sales in the hands of the trustee, but might prosecute his lien against the property, after its convey- ance to the purchaser. Brooks vs. Brooke et al., 12 Gill fy Johns., 318. These propositions arenot understood to be denied, but it is in- sisted, with much force, that notwithstanding the former decision of this court upon the petition of the complainants in Hodges' case, and which, as has been explained, could only have been pro- nounced upon the hypothesis, that these judgment creditors were not to be regarded in any sense as parties to, and bound by, the decree in that suit ; this court will now upon this bill declare, that they were parties, and bound by the decree, be- cause the insolvent trustee was a party and consented to it. The Court of Appeals, in the case of Alexander vs. Ghiselin and others, decided at December term last, that upon the true construction of the seventh section of the act of 1805, chapter 110, the trustee of an insolvent debtor, whose property had been taken in execution before his application for the benefit of the insolvent laws, is, nevertheless, to make the sales applying the proceeds to the satisfaction of the liens ; that, upon such application, the property of the petitioning debtor, no matter how incumbered, and though in custodia legis, is to be taken possession of and sold by the trustee, in order that there may be but one administration of the estate. And, it is insisted, that the principle of this decision extends to the present case ; and, that the sale made under the decree of this court, upon the bill filed by Hodges, the trustee of the insolvent debtor be- ing a party thereto and assenting to the decree, produces the same legal consequences as if the sale had been made by the DUVALL VS. SPEED. 237 trustee of the insolvent, himself. Or, in other words, because such trustee sells free of incumbrances, as he must do, in or- der to accomplish the purposes of the insolvent system, that the same result must follow when a sale is made by a chancery trustee, in a case to which the trustee in insolvency is a party." But can this be so ? If it is, then the fund raised by the sale in Hodges' case, should have been handed over to the insolv- ent trustee, to be administered in insolvency by him, and its distribution by this court was improper. The insolvent system, as contained in the act of 1805 and its supplements, is a system to be administered by the courts of law, and with which this court has nothing to do ; the County Court is to appoint the trustee to order the sale to fix the commission and to limit the time for the creditors to bring in and declare their claims. Now, if the trustee appointed by this court can by any consent of the trustee in insolvency, be so far substituted for him, as that a sale made by the former, shall pass to the purchaser an unincumbered title, to the same extent, as if made by the latter ; and, if this*court, by reason of such assent, or presence of the insolvent's trustee, as a party to the cause, can adminis- ter the insolvent system, it should do so, as the County Court is required to do by the act of assembly. The creditors should be called in upon notice, as provided for by the 12th section of the act ; for surely nothing could be more unjust, than that their rights should be concluded, with- out an opportunity of asserting them. If the argument of the counsel of the complainant is sound, that the insolvent trustee represents all the creditors of the insolvent, then it follows, not only that these judgment creditors are concluded, but all the other creditors of the insolvent are in the same situation, though they may have had no notice whatever of the existence of this chancery suit, and of course no opportunity of presenting their claims. Now, suppose it should turn out, that there is some other creditor of Sevier, having a lien older than Hodges' mort- gage, who never, as these creditors did, came in and asked to be paid out of this fund, and who in point of fact, had no no- 238 HIGH COURT OF CHANCERY. tice whatever of the proceedings, would it not be most unjust to turn him away by saying, that though not here in person, you were by representative, and you must look to him. And then, when he applied to him and complained, that he had suf- fered the fund to be distributed, without regard to his rights, the answer would be, the fund has been distributed by a court of competent jurisdiction, for which the insolvent trustee could not be held responsible. I cannot bring myself to think, that the case of Alexander vs. Ghiselin can be carried to an extent which must be produc- tive of such injurious consequences. The bill in that case was filed for the purpose of having the estate administered in insolvency. But in Hodges' case, it was the bill of a mortgagee, asking for the enforcement of his specific lien, and the trustee of the insolvent was brought in, because the equity of redemption had devolved upon him by operation of the insolvent laws. The construction contended for by the complainants' counsel would not only make the Court of Chancery the tribunal for the administration of the insolvent system, but as several bills for the enforcement of several mortgages, (if the insolvent had ex- ecuted more than one,) might be filed in the different equity courts of the state, that singleness of administration, which the system aimed at, and which the Court of Appeals considered so important in Alexander's case, would be entirely defeated, and instead of simplicity and uniformity, the utmost confusion would be the unavoidable result. But it is said, the judgment of the defendants has been im- properly revived, because Duvall, the insolvent trustee, was not a party to the scire facias, and that, therefore, this court ought not to dissolve the injunction. I do not deem it necessary to express an opinion upon this point, thinking it more properly belongs to the courts of law. If the judgment has been improperly revived, and is a nullity, as is contended, then no title will pass to the party who may purchase under an execution issued upon it, and the complain- ants will not be injured. But surely it would be improper in GOLDSBOROUGH VS. R1NGGOLD. 239 this court to prejudge that question, it being a question of law, or to interfere in any way with the rights of the parties under the judgment, unless some sufficient equitable ground was pre- sented, which I think has not been done. The injunction, therefore, must be dissolved. [No appeal was taken from this order.] ROBERT GOLDSBOROUGH ET AL.} vs. t JULY TERM, 1848. MARTHA R. RINGGOLD ET AL. J [TRUSTEES IN CHANCERY RELIEF IN CASES OF MISTAKE.] IT is the established doctrine in Maryland, that a sale made by a trustee under a decree of the Court of Chancery, is a transaction between the court and the purchaser ; and, the report of the trustee and the order of the court, rati- fying the same, must be regarded as the evidence of the contract between the parties. Before a party can be relieved, in the case of a written contract, upon the ground of mistake, the evidence of mistake must be clear and satisfactory, and if any reasonable doubt can be entertained on the subject, relief will be refused. The mistake sought to be rectified, was in regard to the number of acres sold under the decree. The only evidence was found in a survey ordered by the court, upon the exparte application of the petitioner, which differed from the survey, according to which the land was sold. It was HELD that this evi- dence was not sufficient to overthrow the contract on the ground of mistake. If a purchaser would be refused redress, upon the ground of a deficiency in the number of acres, he could not be obliged, under the same circumstances, to pay for an excess. [The facts of this case will appear from the Chancellor's opinion :] THE CHANCELLOR: This case is brought before the court upon the petition of Martha R. Ringgold, filed on the 5th of May, 1844. It appears by the proceedings, that, on the 2d of April, 1836, the real estate of William Ringgold, deceased, was sold under a 240 HIGH COURT OF CHANCERY. decree of this court, upon a creditor's bill, for the payment of his debts, and that William Emory became the purchaser there- of; which sale was duly reported to the court in a few days thereafter, and was finally ratified and confirmed on the 20th of the succeeding month of June. The land was sold for $24 52 per acre, and, according to the report of the trustee, contained five hundred and sixty-six acres ; the purchase money amount- ing to $13,878 32, and the terms of sale were fully complied with by the purchaser. It also appears, that prior to the sale, the trustee had caused the lands to be surveyed by the county surveyor, by which they were ascertained to contain the number of acres mentioned in the report, and that the plat and certificate of this survey were exhibited to, and seen by, the bidders on the day of sale. The proceedings likewise show that the purchase money had been paid by the purchaser, and distributed and paid over to the parties entitled, under the orders of this court, long before the present petition was filed, without any notice, or intimation to the purchaser, that an error was supposed to exist in the survey, which was, as before mentioned, exhibited by the trustee to the bidders on the day of sale. As early as March, 1841, as appears by the report of the Aud- itor, and the order of the Chancellor, the residue of the proceeds of sale, amounting to $9072 61, that sum remaining after the payment of the claims of creditors, was paid over to the guar- dians of Martha R. Ringgold, the present petitioner, she being as the devisee of the deceased William Ringgold entitled to such residue. It is further shown, by an order of the Chancellor, passed on the 10th of May, 1837, that the expense incurred by the trustee, in having the lands surveyed prior to the sale, was allowed to him out of the proceeds. Under these circumstances the present petition is filed, in which, upon the ground of a supposed mistake made in the said survey, and upon the allegation that the lands contained a greater number of acres than had been paid for, the court was asked to order a resurvey, and that the purchaser might, in the event of an excess, be compelled to pay therefor. GOLDSBOROUGH VS. RINGGOLD. 241 A resurvey was ordered, by which it appears that there is an excess of 42 acres and 8 perches ; and the question is, whether the purchaser shall be made to pay for this excess, at the price per acre bid by him at the trustee's sale. The application of the petitioner is resisted upon several grounds, and counsel have been heard on both sides. It is the established doctrine in Maryland, that a sale made by a trustee, under a decree of the Court of Chancery, is a transaction between the court and the purchaser, and the report of the trustee, and the order of the court ratifying the sale, must be regarded as the evidence of the contract between the parties. In this case, the trustee's report states the terms of sale, and the quantity of acres contained in the tract, and this report, after notice in the usual form was duly ratified and confirmed. The petitioner alleges, that in this contract, thus solemnly ratified, there was a mistake, injurious to her, and that the tract, instead of containing the number of acres mentioned in the report of the trustee, contained in fact upwards of six hun- dred acres ; and her counsel insist, that the mistake must be rectified, and the purchaser compelled to pay for the excess. The imputed error in the first survey is denied, or, at all events, is not admitted, and of course must be proved, the onus being on the party alleging the mistake. The proof offered is the plat and certificate of the resurvey, made under the order of this court. But this plat and certifi- cate differ from the survey which the trustee caused to be made, preparatory to the sale, and which the court, to some extent, adopted, by ordering the expense of it to be defrayed out of the purchase money ; for it is impossible to suppose the court would have charged the estate with the cost of this survey, if it had not been regarded as made by proper authority, and as furnish- ing a proper basis upon which to settle with the purchaser of the property. That this survey was in fact the basis of the contract between the purchaser and the court, is shown beyond all controversy. Now, before a party can be relieved in the case of a written contract, upon the ground of mistake, the evidence of the mis- VOL i. 21 242 HIGH COURT OF CHANCERY. take must be clear and satisfactory. 1 Story's Equity, 169, sec. 157. If there be any ambiguity in the proofs, or a reasonable doubt can be entertained upon the subject, the cases all show, relief will be refused. It was, upon one occasion, said by Lord Thurlow, that there was no instance in which relief was granted upon the ground of mistake ; and although this dictum will be found unsupport- ed by the adjudged cases, they all concur in demanding clear and convincing evidence of the mistake, before relief will be granted. Gillespie vs. Morn, 2 Johns. Ch. Rep., 507. In this case, the only evidence of the mistake is to be found in a survey which differs from the surveys according to which the land was sold. The one of these surveys was made by the county surveyor, acting under the authority of the trustee, and adopted by the court in the mode which has been mentioned. The other was made by a surveyor specially appointed by the Chancellor for the purpose, upon the ex parte application of the petitioner, and I am at a loss to see why more confidence should be reposed in the one than in the other. I purposely abstain from remarking upon the conduct of the officer by whom the last survey was made, which has been the subject of a good deal of criticism on the one side, and of justification on the other, and deem it quite sufficient to say, that, under all the circumstances of the case, I perceive no reason why the last survey should have that preponderating weight as evidence, which the rule applicable to the case, clearly requires of a party who seeks to overthrow a written contract, upon the ground of mistake. There is, moreover, another principle which, in my judgment, is fatal to the present application. The purchase money in this case has been long since paid and distributed, and if the pur- chaser should now be evicted by a superior title, he would be without remedy, and would have to submit to the loss. Glenn vs. Clapp, 11 Gill # Johns., 10. This being so, it would be strange, if the parties who have received the money, or indeed any other parties, years after the payment and distribution of the money, could be permitted to GOLDSBOROUGH VS. R1NGGOLD. 243 call upon the purchaser to pay a larger sum, upon the ground that he had got more land than was supposed at the time of the purchase. Among parties equally innocent there should be a reciprocity of rights and remedies, and if, therefore, from causes for which he is in no wise to blame, the purchaser would be compelled to bear the whole loss, if the entire property should be taken from him, or a partial loss, if deprived of a part of it, it is difficult to discover the principal of equity upon which he can be held responsible, upon the ground assumed in this pe- tition. If the purchaser, by reason of the successful assertion of a superior outstanding title, should lose a part of the land paid for, or if, as the case stood at the time this petition was filed, he would be refused redress, upon the ground of a deficiency in the numbers of acres, it would seem to follow inevitably that lie should not be obliged under the same circumstances to pay for an excess. This principle of mutuality, I think, would be applicable to the case, if the parties had possessed the. same information at the period of the sale, and surely the purchaser here has a su- peradded right to ask that it be enforced for his protection, when it is recollected, that the agent of this court, through whom the sale was made, was informed of the supposed ex- cess, on or about the day of sale, and did not impart the infor- mation to the bidders, or make the fact known to the purchaser in season, to enable him to avail himself of it at the proper time ; if, indeed, it would at any time have furnished him a ground of relief. This circumstance gives stringent force to the principle, in favor of this purchaser, and would, in my view of it, be con- clusive against the present application. Without, therefore, expressing an opinion upon the other questions discussed at the bar, my judgment is, that the peti- tion must be dismissed, and shall pass an order accordingly. 244 HIGH COURT OF CHANCERY. JOSEPH SHEPHERD ^ vs. (. JULY TERM, 1848. SAMUEL SHEPHERD ET ALj [STATUTE OF FRAUDS PART PERFORMANCE SPECIFIC PERFORMANCE.] To take a parol agreement out of the statute of frauds, on the ground of part performance, the acts done in part performance must not only be referrible exclusively to the contract set up in the bill, but the contract itself must be established by evidenceclear, definite and unequivocal in its terms. The party must show acts unequivocally referring to, and resulting from, the agreement set up, such as the party would not have done, unless on account of that very agreement, and with a view to its performance ; and, the agree- ment set up must appear to be the same with the one partly performed. A court of chancery will not decree the specific performance of a mere volun- tary agreement. The Chancellor refused to decree the execution of the contract set up in this case, because, there was a want of the essential elements of unequivocal cer- tainty in the agreement, and in the acts relied upon, as part performance. [The complainant filed his bill in this court, on the 9th of October, 1847, stating that his mother was in her lifetime seized and possessed of a tract of land in Anne Arundel coun- ty, containing about sixty-nine acres, upon which he (complain- ant) has resided for the last four years ;.and that his father, by his will, had devised the same to him in fee, under the erroneous impression that he was the fee-simple owner thereof, and had a right to devise it away. The complainant stated that he had asserted no claim to the land under this devise, but that his mother being anxious that he should hold and enjoy it in fee- simple, agreed to convey it to him if he would relinquish his interest in his father's personal estate, in her hands as his guar- dian ; to which proposition he assented, and, for the purpose of carrying it out, executed to her a receipt for said personal property, although he never received any portion thereof; the receipt being intended merely to operate as a payment of so much money upon the land. The complainant further stated, that immediately thereafter he took possession of the land in pursuance of the agreement, and had held it ever since ; that his mother, until her death, had treated and spoken of hirn as SHEPHERD VS. SHEPHERD. 245 the owner thereof, and had promised to execute a conveyance to him, whenever requested to do so ; and that she departed this life a few weeks before the bill was filed, without having execu- ted any deed to him, and leaving himself, and several brothers and sisters, and the infant children of a deceased sister, her heirs at law, to whom the legal title to said tract of land de- scended. The bill concluded with a prayer for the specific performance of the contract, and a conveyance to the complainant by the de- fendants, of the legal title to the land, and for general relief. The facts stated in the bill were admitted to be true, and the prayer was assented to, by all except the infant defendants ; who having, by their guardian, declined admitting the same, a commission was issued, and testimony was taken thereunder. The value of the land was variously estimated by the wit- nesses, at from $2500 to $3000, and the receipt was given for $571 62. The counsel for the infants excepted to the testimony, as at- tempting to vary, explain, or contradict the receipt, which was written evidence ; and as attempting to sustain a parol contract relative to the transfer of lands, contrary to the statute of frauds, upon which they said they relied. The case having been submitted on notes, the chancellor at this term delivered the following opinion:] i THE CHANCELLOR: This is a bill for the specific performance of a parol contract in relation to lands, and of course the plaintiff can only suc- ceed upon the ground of a part execution of the agreement ; and the acts done in part performance, must not only be refer- rible exclusively to the contract set up in the bill, but the con- tract must itself be established by evidence clear, definite and unequivocal in its terms. Such is the current of all the author- ities upon this branch of the jurisdiction of courts of equity. 2 Story Eq., section 762. Wingate vs. Dail, 2 H. and J., 76. It was said by Chancellor Kent, in Phillips vs. Thompson, 1 Johns. Ch. Rep., 131, that if a party sets up part perform- 21* 246 HIGH COURT OF CHANCERY. ance, to take a parol agreement out of the statute of frauds, he must show acts unequivocally referring to, and resulting from that agreement, such as the party would not have done, unless on account of that very agreement, and with a direct view to its performance, and the agreement set up, must appear to be the same with the one partly performed. These principles are declared to be recognized by a series of decisions, and in the subsequent case of Parkhurst and Van Cortland, reported in the same book, 273, be reaffirms the doc- trine of the previous case, and maintains it to be undoubtedly sound. In the case under consideration, in my opinion^ those essen- tial elements of unequivocal certainty in the agreement, and in the acts relied upon as part performance, are not to be found. It certainly does not appear that the possession of the complain- ant, Joseph Shepherd, is referrible exclusively to an agreement between him and his mother, Mary Shepherd, for the convey- ance of the land to him. The consideration to be paid, or which is alleged to have been paid by him, was altogether in- adequate, and hence, the effort to eke out that consideration by the attempt to show that she was likewise influenced by defer- ence to the wishes of her deceased husband. In this view, and so far as a desire to comply with the supposed wishes of her husband are concerned, the agreement must be regarded as voluntary, and it is settled, that a court of chancery will not decree the specific performance of a merely voluntary agree- ment. Black vs. Cord, 2 Har. and Gill, 100. The agreement in this case, .if it can be supported at all, must be supported as an agreement to sell and convey, and such is the nature of the agreement as stated in the bill : which alleges that his mother being anxious that he should hold and enjoy the land in fee-simple, proposed to him, (the complainant,) that if he would relinquish his interest in his father's personal estate, she would sell and convey to him in fee simple, the said land. The question, therefore, is, has the complainant made out in the proof an agreement to sell and convey, and a part performance of that agreement, and above all, has he estab- SHEPHERD VS. SHEPHERD. 247 lished such agreement and acts of part performance, by that clear and unambiguous evidence which is required by the rule ? I think not. It appears to me, that the complainant's case falls below that strict standard of proof, which the most eminent judges have declared to be indispensable, and a strictness, too, which no disposition is manifested to relax, the determination on the contrary being often expressed, not to carry the excep- tions of cases from the statute, further than required by former decisions. Story 1 s Eq., sec. 766. Lord Redesdale, said, in the case of Lindsay vs. Lynch, 2 Sch. and Lef., 4, that it was absolutely necessary for courts of equity to make a stand, and not to carry the decisions further, a resolution which met the approbation of Chancellor Kent in Parkhurst vs. Van Cortland, already referred to, and which, as it seems to me, must commend itself to all who are not dis- posed to see the statute frittered away, until no vestige of it shall remain. In this case we look in vain for that unequivocal evidence of a contract, to sell and convey, as alleged in the bill. It is obvious from the evidence on both sides, that Mrs. Shepherd, the mother, never did consider her power and dominion over the land, as transferred to the complainant. She spoke fre- quently of her intention to dispose of it by her will, which, up- on the supposition that she had contracted to sell and convey, and had received the consideration money, she of course had no power to do. It is also clear from other portions of the proof that the complainant regarded his mother as possessing the power of disposition over the property ; an impression which he could not have entertained, if he considered himself in possession under a valid contract of purchase. That there was a family understanding, that the complain- ant was to have this land at the death of his mother, is quite apparent, not only from the evidence of members of the family, but of others ; but I cannot see in the record, that species of proof upon which alone this court is authorized to decree a spe- cific execution of a parol agreement in relation to land, and, therefore, I must dismiss the bill, though there is enough in the 248 HIGH COURT OF CHANCERY, case to induce me to do so without subjecting the complainant to costs. Some of the defendants, it is true, have admitted the agree- ment, and consented to a decree ; but as the complainant has failed in establishing his case against the infant defendants in a point vital to his right to the interposition of this court, no course is left but to dismiss his bill. Assuming that the complainant gave the receipt to his mother, in consideration of her agreeing to convey him this land, an assumption, however, of which there is no evidence, his possession, and enjoyment of the rents and profits for four years, according to the proof, has most abundantly reimbursed him, as well as for the improvements which he has put upon the property. [The decree in this case was reversed on appeal.] WILLIAM HARNESS ET AL. "] vs THE CHESAPEAKE AND OHIO I J0LY TERM ' ^ CANAL COMPANY ET AL. [THE RIGHT OF EMINENT DOMAIN INJUNCTION INTEREST JUDGMENT MERGER.] THE principle, that the right of eminent domain authorizes the government to take and appropriate private property for public uses, without making com- pensation to the owner, unless there is some provision in the constitution restrictive of the power, cannot be maintained in Maryland. Such an appropriation by law, without compensation, would be in conflict with the sixth and, twenty-first articles of the bill of rights, the latter of which declares "that no freeman ought to be taken, or imprisoned, or dis- seized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty or property, but by the judgment of his peers or the laws of the land." To say, that the legislature has such power, is to confer upon it judicial pow- ers, and to confound those departments of government, which the declaration of rights says, shall be kept forever, separate and distinct. The legislature of this state, has in no instance, in the exercise of the right of HARNESS VS. CHESAPEAKE AND OHIO CANAL CO. 249 eminent domain, omitted to provide compensation to the owner of the prop- erty taken for public uses ; and such provision was made by the 15th section of the act of 1824, ch. 79, passed to confirm an act of the legislature of Vir- ginia, incorporating the Chesapeake and Ohio Canal Company. The 15th and 19th sections of the charter of this company construed, The taking of acceptances fora pre-existing debt by a creditor, cannot have the effect of extinguishing the debt. If the inquisition of the jury, when returned to and affirmed by the court, under the act of 1824, constitutes a debt at all, it is a debt of record, and of equal grade with a judgment, and, therefore, not merged by it. When the company refuses or neglects to pay for the land condemned for their use, tbe owner has a right to call upon this court to protect, by injunction, his property from injury, until the money is paid. The complainants were held to be entitled to interest on their claim, from the day of the affirmation of the inquisition of the jury by the court. [On the 4th June, 1838, a previous inquisition having been set aside by Alleghany County Court, a new jury met and pro- ceeded to condemn the lands of the complainants, for the use of the Chesapeake and Ohio Canal Company, one of the defend- ants in this cause. By their inquisition, which was affirmed by the court of said county, on the 8th of October following, the sum of $13,256 was awarded to the complainants, as damages for the lands so condemned. Shortly after the ratification of this inquisition, the company commenced operations upon the condemned lands, making some excavations upon the upper and lower ends of the line, and continued working upon them, at intervals, until the years 1840 and 1841, when their opera- tions were temporarily suspended. On the 1st April 1840, the money not being paid, the company accepted the drafts of William Harness, acting for himself, and under a letter of attor- ney from the other parties, payable to his order, for the amount of the inquisition, with interest from the day of its ratification. These drafts matured on the 1st December, 1840, and having been dishonored, suit was brought upon them by the payee in Alleghany County Court, and judgment was recovered, in his name, at October term, 1842. On the 2d June, 1843, a fieri facias was issued upon this judgment, and levied by the sheriff upon the property condemned, and upon another piece of land, supposed to belong to the company, but which was, in fact, 250 HIGH COURT OF CHANCERY. held by trustees for its benefit, and was by them afterwards sold, and the proceeds of sale applied to the payment of other debts than those of the complainants. No sale was made by the sheriff under his levy, and things re- mained in this state until December, 1845. when the bill was filed in this cause by the complainants. At the time these drafts were accepted by the canal company, a receipt was sign- ed by William Harness, in which he said, "I accept the same," (the accepted drafts,) "as full payment of the lands of William, Joseph and Hannah Harness," (the complainants,) "in Alleghany county, Maryland, condemned by inquisition at the instance of said canal company, and affirmed by the court of that county, at October term, 1838." The bill alleged the insolvency of the company ; that the condemned lands were the complainants' only resource for the payment of their claim ; and, that these would be rendered worthless by the passage of the canal through them, which, however, would be done, unless they were aided by an injunction. The late Chancellor granted the injunction, which, on the coming in of the answers, was continued till the hearing.] THE CHANCELLOR : Though respectable authorities may be found for the princi- ple, that the right of eminent domain inherent in the sovereign power, authorizes the government to take and appropriate pri- vate property for public uses, without making compensation to the owner, unless there is some provision in the constitution re- strictive of the power, I am fully persuaded, that no such prin- ciple can be maintained in this state. The decisions of the court of last resort here, as I understand them, clearly forbid the exercise of any such power. In commenting upon the act of 1825, chapter 190, which proposed to abolish one corporation and to transfer its fran- chises and property to another, without the consent of the form- er, the Court of Appeals declared, that independently of the constitution of the United States, prohibiting the states from passing laws impairing the obligation of contracts, there HARNESS VS. CHESAPEAKE AND OHIO CANAL CO. 251 was a principle of right and justice inherent in the nature and spirit of the social compact, which restrained and set bounds to the auihority of the legislature, and beyond which it could not be allowed to pass. That principle which protects the life, liberty and property of the citizen from violation in the unjust exercise of legislative power. Regents of the Uni- versity of Maryland vs. Williams, 9 G. # J., 409. Chancellor Kent, in speaking of the right of eminent domain, or that inherent sovereign power which gives to the legislature the control of private property for public uses, remarks, that the constitution of the United States, and of most of the states of the Union have imposed a valuable check upon the exercise of the power, by declaring, that private property shall not be taken for public use, without just compensation ; a principle, as he says, founded in natural justice and recognised by the universal law. And, he further observes, "that though it be not a constitutional principle, yet it exists with stringent force, independent of any positive provision." 2 Kent Com., 339, 340, and note. The only case to which I have been referred, in which it was held, that private property might be taken for public use, against the consent of the owner, and without making compen- sation, is that of the State vs. Dawson, 3 HiWs Rep., 100. This decision was placed upon the ground, that the 5th article of the constitution of the United States, which prohibits the tak- ing of private property for public use, without just compensa- tion, is applicable, exclusively, and restrictive only of the pow- ers of the general government and its functionaries; and, that as there is no restraining provision in the constitution of South Carolina, the legislative authority could not be controlled. The weight of this authority, however, is much weakened by the dissatisfaction with it, expressed by several of the judges, and by the opinion of Mr. Justice Richardson, in support of the obligation of making compensation. But, if it should be conceded, that the legislature of Mary- land might exercise the power in question, if there was nothing in the constitution to forbid it ; and, if the argument pressed 252 HIGH COURT OF CHANCERY. by one of the counsel for the defendants is sound, that the law-making power of the state governments is unrestrained, except by the constitution ; still, as it seems to me, the appro- priation, by law, of private property to the public use, without compensating the owner, could not be tolerated. The sixth article of the bill of rights separates the legislative, executive and judicial departments of the government, and makes the separation permanent. And, the 21st article of the same instrument says, "that no freeman ought to be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or the law of the land." These provisions were, undeniably, intended as restraints upon the legislative power, by means of the courts of justice, charged with the administration of the law. The words, "by the law of the land," which are copied from Magna Charta, are understood to mean, due process of law, that is, a regular trial according to the course and usage of the common law ; and the words, "the judgment of his peers," mean, a trial by jury according to the course of the same law. 2 Kent's Com., 13 ; 9 G. & /., 412. The legislative department of the government makes the law, or prescribes general rules for the government of the community ; but it cannot deprive an individual of his property because, to do so, is to pronounce a sentence, and not to enact a law ; and, in the language of the Court of Appeals, to pronounce sentence without a hearing, or giving to the party whose prop- erty is taken, an opportunity of defending his rights against the attempted invasion. This view of the subject does not interfere with the due ex- ercise of the right of eminent domain, which gives to the legis- lature the power to take private property for the public use. When this power is exerted, the government is bound to pro- vide some tribunal for the assessment of the compensation, be- fore which the parties may meet and discuss their rights, face to face. But, to say that the legislature may, by its own act, HARNESS VS. CHESAPEAKE AND OHIO CANAL CO. 253 and without the intervention of any judicial tribunal, take an individual's property from him, when the constitution de- clares, he shall only be deprived of it by the judgment of his peers, or by the law of the land, is to confer upon the legisla- ture judicial powers, and to confound those departments of the government which the declaration of rights says, shall be kept forever separate and distinct. It is believed, however, that the legislature of this state has, in no instance, in the exercise of the right of eminent domain, omitted to provide compensation to the owner of the property, taken for the public use. By the 15th section of the act of 1824, chapter 79, passed to confirm an act of the legislature of Virginia, incorporating the Chesapeake and Ohio Canal Company, provision is made for condemning the lands of individuals for the purpose of making the canal, in case the owners and company cannot agree, or in case the owners are incompetent, or absent from the state. The law in either of these contingencies provides a tribunal for the assessment of the compensation or indemnity to the owner, and directs that the valuation placed upon the land by this tribunal shall be paid by the canal company, to the owner or his legal representatives ; and, that on payment thereof, the company shall be seized of the land condemned, either absolutely, or of such less quantity and duration of interest or estate, as may have been valued. It is very certain, therefore, that in this case, and with regard to the powers of this company, the legislature did not intend, through its instrumentality, to appropriate pri- vate property to the public use, without compensating the own- er. The office of the jury, summoned under the provisions of this section of the act, is to determine the value of the land con- demned ; and it declares, that their valuation shall be conclu- sive on all persons, and shall be paid by the company to the owner of the land or his legal representatives. And the lan- guage of the law is explicit, that the title of the company, whether absolute or qualified, shall vest only on payment of the money. However true it may be, as has been argued, that the canal VOL. i 22 254 HIGH COURT OF CHANCERY. company, might, even after the inquisition of the jury had been ratified, have abandoned the route over the lands of the com- plainants, and thus freed themselves from any obligation to pay the valuation, still, as the company have not exercised this right, but have, on the contrary, taken possession of the land, excavated a part of it, and propose to cut their canal through the entire line, their obligation to pay the sum awarded by the jury, would seem to be incontestible. If the government had omitted in the case of this company, to provide for compen- sating the owners of property taken for the use of the canal, its officers and agents, upon application, would have been re- strained by injunction. Gardiner vs. Village of Newbury, 2 Johns. Ch. Rep., 162. And having made provision for such compensation, and pre- scribing the mode, in which the amount to be paid shall be ascer- tained, and the canal company, having, in pursuance of the power conferred upon them, condemned and taken possession of the land of the complainants, nothing can be clearer, than the obligation to pay the money. The argument, that it would be unreason- able to require payment before the title passes, and, therefore, that such pre-payment could not have been intended by the legislature, does not seem to me applicable, because the pay- ment and the passing of the title are simultaneous. The law says, "on payment thereof," (that is on payment of the sum awarded by the jury,) the company shall be seized. Some difference of opinion has been expressed by the courts, with respect to the period at which the compensation shall be paid, but the weight of authority, and as Chancellor Kent says, the better opinion is, that the compensation, or offer of it, must precede, or be concurrent with the seizure and entry upon private property under the authority of the state. 2 Kent's Cow., 340, note. It is true, the 1 9th section of the charter of this company authorizes it to enter upon the lands of individuals, when re- quired for the purposes of the canal, when the consent of the owners cannot be obtained, and to proceed to the execution of such works as may be requisite. "And, that the pendency of HARNESS VS. CHESAPEAKE AND OHIO CANAL CO. 255 any suit, in the -nature of a writ of ad quod damnum, or any other proceedings, shall not hinder or delay the progress of the work." This section, it is said, not only relieves the company from any obligation to pay, during the pendency of proceedings in- stituted to condemn the land, but it is insisted, the pendency of any other proceeding, such as the present for instance, is a sufficient answer to the demand of payment. In this construc- tion of the section, I do not concur. It appears to be manifest, that the legislature had in view, proceedings instituted to con- demn the land, and not any litigation, which might arise between the parties, with reference to the payment, or to en- force payment of the money, after the condemnation should be complete. The legislature saw, that unless this power was given, the work might be delayed by spinning out the proceedings con- nected with the condemnation, and before the valuation could be determined, and of course before it could be paid, and the law, therefore, provides, that pending the proceedings neces- sary to ascertain the valuation, the progress of the work should not be arrested. The construction contended for, by the de- fendant, would delay the payment of the money so long as any litigation between the parties having any connection with it, could be kept on foot, though all the proceedings necessary to the condemnation should be finally concluded. If any doubt could be entertained, with regard to the construction, which, I think, should be given to this section, it would, in my opinion, be removed by the latter clause of it, which directs the courts to give precedence to controversies between the company, and the proprietors of lands sought to be condemned for public uses. This direction indicates, not only the parties to whose contro- versies precedence is to be given by the courts, but the subject of such controversies. They must be between the company on the one hand, and the proprietors of lands on the other, which lands the company is seeking to condemn. But to say, that after the condemnation is complete, and the amount to be paid is ascertained, any proceeding instituted by the proprietor 256 HIGH COURT OF CHANCERY. of the land, to protect his property, until the sum ascertained shall be paid, would justify the using the land, and at the same time withholding payment, would, in my opinion, be pushing the. provision of the section in question far beyond the intention of the legislature. If this position can be maintained, then any proceeding, legal or equitable, which the proprietors of the land condemned may adopt .to protect it from injury until the value ascertained by the inquisition is paid, will be an excuse for not paying, whilst the company will be at liberty to proceed in the con- struction of the canal without interruption. Certainly the ne- glect to pay, when the sum is ascertained, is the fault of the company, of which the consequences should be visited upon them. The principle settled by the Court of Appeals, in the case of the Canal Company vs. Rail Road Company, 4 G. fy /., 1, is, that every law which is to wrest from an individual his prop- erty without his consent, must be strictly construed ; that is, must receive a construction which will work as little injury as possible to the individual, consistently with the great object of public utility, for which, alone, this high sovereign power can be exerted. My construction of this section, is, that it gives to the canal company, the temporary right to enter upon the land of individuals, with whom they cannot agree, and proceed with their work, during the pendency of such proceedings, whether by writ of ad quod damnum, or otherwise, as may be necessary to give them the title in the mode authorized by their charter ; but, that after such proceedings have been con- cluded by the inquisition of the jury, and the affirmation of that inquisition by the court, the temporary privilege given by the act is at end, and they may be restrained by injunction, if an attempt is made to carry it further. And such, unquestion- ably, was the opinion of Chancellor Kent, in the case already referred to, and in the other case cited in the 2d vol. of his Com., 340, in the note. I take it, therefore, as clear, that after the jury in this case, had fixed the amount to be paid to these complainants, and HARNESS VS. CHESAPEAKE AND OHIO CANAL CO. 257 after their rinding had been affirmed by the court, the canal company had no right to enter upon, and commence cutting their canal through these lands, without paying the money, and that having so entered upon, and commenced cutting, the obli- gation to pay was perfect. The language of the 15th section of the act is, that the "valuation of the jury shall be conclusive on all persons, and shall be paid by the president and directors, to the owner of the land, or his legal representative." It seems impossible to say, in the face of such language, that there is not, and was not, when the canal company took possession of the lands of these parties, and commenced exca- vating their canal, an absolute, unqualified, and immediate obligation to pay the money, and that they could upon any pretext whatever delay it. The defendants, however, contend, as already observed, that conceding all this to be true, the complainants have precluded themselves from asking the relief sought by this bill, by taking the acceptances of the company, and giving the receipt before spoken of. If the Chancellor is right in the view presented of the obligation of the company to pay before, or concurrently with the actual seizure and entry upon these lands ; then it follows, that, on the 1st April, 1840, the date of the accept- ances, the valuation of the jury was, and had been for some time, payable ; for the evidence clearly shows, that prior to that date the defendants had entered upon the lands and commenced cutting their canal. Assuming, then, that prior to the date of these acceptances there was due from the canal company, the sum ascertained by the jury, which sum, in the language of the charter, was to be paid by the company to the owner of the land, or his legal representatives, it was simply giving acceptances for a pre-ex- isting debt, and it is too clear for argument, that the taking of them by the creditor could not have the effect of extinguishing the former debt. Insurance Co. vs. Smith, 6 H. fy J., 169 ; Glenn vs. Smith, 2 G. 8f J., 508 ; Wayman vs. Roe, 11 G. if J., 425. 22* 258 HIGH COURT OF CHANCERY. But it is said, that though the mere giving the acceptances would not extinguish the antecedent debt, yet that an express agreement to that effect would produce such extinguishment, and that the receipt given by Wm. Harness, in this case, is suf- ficient evidence of such agreement. It is to be recollected, however, that it was not the bill or note of a third person, which was given for the debt of the company, ^but its own acceptance, and consequently no addi- tional security was obtained. A creditor might be well presumed to give up his claim upon his original debtor, upon receiving the obligation of a third person, in whose solvency he had greater confidence, but it is very difficult to assign a reason, and certainly no authority has been produced to show a motive to induce a creditor to surren- der his right to resort to his original cause of action, upon merely receiving from his debtor an obligation of equal dignity. The receipt in this case I do not understand to amount to an express agreement to look exclusively to the acceptances, and to abandon any right which the complainants may have had to insist on payment of the money, before their land was used for the purposes of the canal. It would not, in my judgment, amount to an extinguishment or payment of the precedent debt, even if the acceptances had been those of a third party, and a fortiori, cannot have that effect when they are merely the en- gagement of the original debtor. The opinion of the Court of Appeals, in the case of Glenn vs. Smith, 2 G. fy J., 493, and the case of Putnam vs. Lewis, 8 Johnson's Reports, 389, cited with approbation by the Court of Appeals, are, I think, conclusive upon the question. The defendants, however, insist, that even if the giving and receiving the acceptances will not have the effect contended for, still, when judgment was obtained upon those acceptances there was a merger of the original indebtedness, and the remedy of the complainants is only upon the judgment. If, however, the inquisition of the jury, when returned to and affirmed by the court, constitutes a debt at all, it is a debt of record, and of equal grade with the judgment. The terms of HARNESS VS. CHESAPEAKE AND OHIO CANAL CO. 259 the act of assembly are, "that unless good cause be shown against the inquisition, it shall be affirmed by the court and re- corded." And, therefore, assuming the inquisition, when thus affirmed and recorded, to constitute a debt, it is a debt of record, and consequently not merged by the judgment, which is of no higher dignity. But, according to my view of this case, the question of mer- ger does not arise. The legislature, by the act of 1824, pro- vided a mode by which, in certain specified contingencies, this company was authorized to appropriate to its use the land of individuals without their consent, upon the condition, that they, the company, should pay therefor such a valuation as a jury should put upon it. This valuation, by the letter of the law, is made conclusive upon all persons, and is to be paid by the company, and it is only on payment thereof that the title passes. Now, it seems to me very clear, no matter what arrangements are made between the parties for the payment of the money, or what securities may be given for it, the owner has a right at any time upon failure of the securities, to call upon the court to protect his property from injury until the money is paid. It does not appear to me to be material, whether the owner is bound in any active measures he may adopt to recover the money, to proceed exclusively upon his judgment or not. If he can show, as is shown here, that the judgment was ren- dered for the money which the jury fixed as the value of the land ; that it has not been paid; and that there is serious dan- ger of irreparable injury to the owner, unless this court will in- terpose to hinder the company from using the property, I can- not see how his request for the aid of the court can be refused. The law says, (except during the pendency of the proceedings provided for in the 19th section,) that the owner's property shall not be taken from him, and used for the purposes of the company, until the valuation put upon it by the jury is first paid. And I cannot see how this right can depend upon the character or form of the security given by the company for the payment. If the owner has a right to insist upon the payment of the money before his property is wrested from him, (and 260 HIGH COURT OF CHANCERY. such right cannot be disputed,) what is to prevent him from invoking the aid of the court, for his protection, if the judg- ment given for the money remains unpaid. The argument that the judgment is no more than a general lien, does not militate against this right of the owner of the land. His title to the protection of the court does not rest upon his rights as a judgment creditor, but upon the act of as- sembly, and upon that settled and fundamental doctrine accord- ing to which the owner of property, taken for the public use, is entitled to compensation, and as Chancellor Kent says, to have it paid before, or at least concurrently with the seizure and ap- propriation of it. The complainants in this bill do not ask the court to enforce the payment of their judgment; but showing the judgment to be for the sum awarded by the jury, and stating other facts in- dicative of peril to their interests, unless the arm of this court is extended to their relief, they ask that the property condemned may be protected from injury until the money is paid, and this, in my judgment, they have a right to ask. The only remaining question relates to the obligation of the company to pay interest on the sum fixed by the inquisition. The bill prays, that they may be restrained by injunction from digging their canal through the lands of the complainants men- tioned and described in the inquisition, without first paying to them the sum of $13,256, with interest thereon, from the 8th day of October, 1838, or until the further order of the court. The defendants deny their obligation to pay interest, and this is one of the principal points in dispute between the parties. It is shown by the evidence that very shortly after the affirm- ation of the inquisition, on the 8th of October, 1838, the de- fendants entered upon the land, and commenced cutting their excavations ; and, consequently, as I apprehend, their liability to pay the money was then complete. They had no right to enter upon the land at all, except under the circumstances men- tioned in the 19th section, without first paying the money. Being so liable, the obligation to pay interest would seem to HARNESS VS. CHESAPEAKE AND OHIO CANAL CO. 261 follow as of course, unless there are other circumstances exon- erating them from the duty. The defendants insist that, inas- much as the complainants have to some extent cultivated these lands since the condemnation, their responsibility for interest is removed. It would be unreasonable, certainly, that the com- plainants should hold and cultivate the lands, and at the same time make the defendants pay interest upon the sum awarded them by the jury, as the measure of compensation for their loss. But in view of the evidence upon this subject, and looking to the very partial and imperfect enjoyment of the property, by the complainants since the defendants commenced their opera- tions upon the land, I cannot bring myself to consider that suf- ficient answer has been given to the demand of interest. If, however, the court had any doubt upon this subject, it would be removed by the conduct of the parties themselves. On the 1st of April, 1840, we have seen, the defendants accepted drafts for this money with interest from the 8th of October, 1838, upon which in October, 1842, they confessed judgments. Here then we have the solemn acknowledgment of the company, that it was liable to pay interest upon this money, twice repeated. How can this court, in the face of these acknowledgments of the company, say they are not liable to pay interest ? The court must assume, and does assume, that these acceptances were given in good faith, and when the company had a reason- able expectation of paying them as they matured, and not that they were given for the purpose of taking from the complain- ants the right to resort to the courts for the protection of their property, if subsequent events should render it necessary, or as has been suggested, to get rid of the specification, which it is supposed the complainants may have had upon this land for the sum awarded them by the jury. The acceptances were given, as I must presume, with the expectation of paying them, and because the defendants considered themselves liable to pay the money, with interest. This was their then understanding of their obligation, and I can see nothing in the case to relieve them from the performance of it. I shall, therefore, sign a decree perpetuating the injunction, 262 HIGH COURT OF CHANCERY. or at least continuing it in force, until the defendants shall pay the said sura of $13,256, with interest from the 8th of October, 1838. And shall also decree the payment of costs as against the canal company ; but the plaintiffs must pay the costs of the officers of the corporation who were made defendants for the purpose of discovery. Fulton Bank vs. JV*. Y. and Sharon Canal Company, 4 Paige, 131. [No appeal was taken from this decree.] EDWARD GREEN, TRUSTEE, } vs. > TRUE PUTNEY AND HUGH RIDDLE. 3 [TRUSTEES, THEIR POWERS AND ALLOWANCES TO THEM.] WHEN a trustee, appointed by this court to sell property and bring the proceeds in to be disposed of under its orders, disburses money without competent au- thority, he will be chargeable, as if the money was in hand. This principle cannot be applied with the same rigor to a trustee acting under a deed, giving express authority to pay debts. Nor, does the fact, that such a trustee applies to a court of equity for its direc- tion and assistance in the execution of his trust, place him in the predicament of a trustee of the court's appointment, with powers limited and defined by the decree. If such trustee thinks proper himself to disburse the fund, he cannot be called upon to bring it into court, unless the disposition which he has made of it is shown to be improper. Where the trustee, by the terms of the deed creating the trust, was entitled to an allowance for costs and expenses attending its execution, such allowances, should the nature of the trust and the circumstances of the case require it, will embrace, even without an express provision, the expense of employing an attorney. [Edward Green, the trustee, under a deed from True Putney and Hugh Riddle, dated 29th of August, 1839, conveying to him a large amount of property, real and personal ; also, trans- ferring to him all debts and claims due them as partners, and evidences of debt of every description in trust for the benefit of GREEN VS. PUTNEY. 263 creditors, filed his petition in November, 1841, on the equity side of Baltimore County Court, stating his receipt of a por- tion of the trust fund, and praying leave to distribute the same under the authority of the court. On the 30th of November, 1842, about two-thirds in amount of the creditors of Putney and Riddle assigned to the latter all the interest of the assign- ors in a claim which the assignees had against the United States for losses sustained by them, in the performance of a contract with the government, for building a warehouse in the city of Baltimore ; this claim was to be prosecuted by the as- signees for their own use; and a reservation was made by the assignors of their interests and dividends in the property, and the rest of the claims conveyed to Green. The amount recov- ered from the government under the claim for losses, was $9,672 61, which, after the deduction of expenses and com- missions was distributed among the creditors of Putney and Rid- dle, they themselves receiving under the above mentioned as- signment, the sum of $5,621 33. The money recovered from the government had been received by Green, as trustee, and distributed under the directions of the Baltimore County Court, by the Auditor of that court, in an account accompanying his report of the 16th of January, 1845. The trustee received the further sum of $13,985 38, as due Putney and Riddle for work done for the government. This sum was paid to Green, as trustee, under the deed described above ; and also, as perma- nent trustee of Putney, who had taken the benefit of the insol- vent laws, in 1840. During the prosecution of this claim, on the 31st of December, 1842, Putney and a certain Peter Gor- man entered into an agreement, by which Gorman, in consider- ation of his furnishing the necessary funds for its prosecution, was to receive one-half of Putney's share, should any thing be recovered. On the 27th of September, 1844, Putney, Riddle and Gorman, who were engaged in buying up claims against the firm of Putney and Riddle, entered into a written agreement by which it was stipulated, that in the purchases of that de- scription already made, and in those thereafter to be made, the parties should contribute rateably, that is, Riddle should con- 264 HIGH COURT OF CHANCERY. tribute one-half, and the others each one-fourth ; the proceeds of the claims and dividends so purchased, to be divided in the same proportion. On the exhibition of the agreement between Putney and Gorman, one-fourth of the sum awarded to Putney and Riddle by the Auditor's report of the 16th of January, 1845, was, by order of the court, directed to be paid to Gor- man. Under the agreement of September, 1844, Gorman and Riddle purchased and took assignments from numerous cred- itors of Putney and Riddle, including those already assigned to the two latter. Counsel were employed by Gorman and Rid- dle to prosecute the claim against the government for work done and materials provided in the erection of the warehouse in Baltimore, who were to receive one-half of Gorman and Rid- dle's share of the money recovered, and Green agreed to allow them the same proportion of what he would be entitled to as trus- tee. By a subsequent agreement between Gorman and Riddle and two of their counsel, it was stipulated, that the sums expended by the two former in purchasing claims should be first deducted from the amount recovered, and the counsel should receive one- half of the residue. The amount received by Green from the government, on account of this claim, was $13,985 38, and the counsel and Gorman and Riddle, desiring to have a settlement, had a meeting for that purpose, on the 2d of September, 1846, and three papers were executed by them, by the first of which they waived any right which they might have to the sum of $2000, retained by Green for distribution, under the direction of the court ; amongst the parties entitled by the second, Gorman and Riddle were allowed $2500 for moneys expend- ed in buying up claims against Putney and Riddle, and Green was allowed $600 for commissions on the money then in his hands, and the further sum of $200 for defraying future costs and charges. Of the residue of said sum, after making these deductions, one-half was to be paid to the counsel by Green, for which he was to be allowed credit. The object of the third paper was to indemnify Green, who had, on that day, advanced the sum of $5,842 69 to Gorman and Riddle, in case he should not, as trustee, be allowed for it. By an agreement GREEN VS. PUTNEY. 265 between Green and Gorman and Riddle, made on the 31st of January, 1845, Green waived his right to the commissions on any sum obtained by the two latter from the United States on their own receipt, but was to receive $100 in case he had to pass his receipt therefor. By a subsequent agreement between them, he, Green, was to take an active part in obtaining the money, and was to be properly compensated therefor. This case was, by order, dated the 17th of November, 1846, removed to this court, and the questions presented to the Chan- cellor ar.ose on exceptions to the reports of the Auditor of the Baltimore County Court.] THE CHANCELLOR : It is said that Green, the trustee, must not only bring into court the sum of $2,800, mentioned in the order, 12th of Feb- ruary, 1847, which was passed by consent ; but he must also bring in the amount which he paid the counsel on the 2d of September, 1846, and the court is called upon by Putney and Gorman and Riddle to compel him to do so. The argument of the counsel for Putney is, that a trustee who disburses money without competent authority, is charge- able, as if the money was in hand. However true this may be with regard to a trustee appointed by this court to sell property, and bring the proceeds in to be disposed of under its orders, the principle cannot surely be ap- plied with the same rigor to a trustee acting under a deed giv- ing express authority to pay debts, and the circumstance, that the trustee in this case applied to the court for its direction and assistance in the execution of his trust, does not place him in the predicament of a trustee of the court's appointment, with powers limited and defined by the decree. If the trustee, not- withstanding his application to the court for directions, thinks proper himself to disburse the fund, he cannot be called upon to bring it into court, unless the disposition which he has made of it, is shown to be an improper one. Now, so far as Gorman and Riddle are concerned, and to the extent of their interest in the fund, it would seem impossible, VOL I.23 266 HIGH COURT OF CHANCERY. that the application with regard to this payment can be success- ful. Their agreement on the 24th of August, 1844, and the papers signed by them, on the 2d of September, 1846, when they themselves received 85,842 69, of this same money, seems to me effectually to conclude them from objecting to the pay- ment of the counsel. But, it is said, that this payment to the counsel cannot prej- udice the rights of Putney, because the agreement of the 24th of August, 1844, under which it was paid, was not signed by him. It is to be recollected, however, that upon the record as it stood on the 2d of September, 1846, the date of the payment, Gorman and Riddle, who did make the agreement with the counsel, were the assignees of the claims of creditors to the amount of $12,767 48, and, therefore, Green may have been excusable in treating them as entitled to make any contract they saw fit in regard to the fund. I do not concur with the counsel for Putney in the position, that under the assignment of November, 1842, to Putney and Riddle the creditors transferred to them any and every sum which might, or should be recovered from the United States. On the contrary the assignment is expressly restricted to any claim they might have upon the government, for losses sustain- ed by them in the performance of their contract with the gov- ernment ; every other claim of the creditors founded upon the deed to Green being reserved. It does not distinctly appear upon what ground the sura now in question was paid whether it was paid as a further indem- nity for losses, and if so, covered by the assignment of 1842, or whether it was paid under the contract with the government, by Putney and Green, and if so, not covered by the said assign- ment, according to my understanding of it. The fifth report of the trustee leaves this question in some doubt. But, be this as it may, it is very certain the parties did not treat the assignment of 1842 as absolute, and as transferring the entire interest of the creditors to any sum which might be re- covered from the government. GREEN VS. PUTNEY. 267 There is another view of this subject which has a strong ten- dency, in my judgment, to justify Green, the trustee, in paying these fees to the counsel. He was, by the terms of the deed of August, 1839, creating the trust, entitled to an allowance for costs and expenses attending its execution, inclusive of a rea- sonable commission to himself; and such allowances, should the nature of the trust and the circumstances of the case re- quire it, will embrace, even without an express provision, the expense of employing an attorney. Willis on Trustees, 146, 147 ; 10 Law Lib., 69; Hagthrop vs. Hook, 1 Gill fy Johns., 273 ; 2 Mod. Ch. Prac., 158. In this case, it is manifest, that notwithstanding the assign- ments of the creditors to Putney and Riddle and Gorman, that the agency and active exertions of the trustee were indispensa- ble to the recovery of the money from the United States, he being considered by the government, the party alone authorized to receive it. Now assuming, for the sake of the argument, that Putney, was entitled to one-fourth of this fund, (and that is certainly the extent of his claim,) was not Green, as his trustee, authorized to unite with Riddle and Gorman, the owners of the other three- fourths, in the contract which they made with the council upon the subject of fees ? Was not this agreement on the part of the owners of three-fourths of the claims, the strongest possible evidence of the reasonableness of the compensation. The court is without the necessary data to found a very satisfactory opinion upon the subject ; but, seeing that parties interested to the extent of three-fourths made this contract, and forming the best judgment I can, from the lights before me of the difficulties which had to be surmounted, before the claim could be allowed, I am not disposed to visit upon the trustee loss on account of it. I am of opinion, therefore, that Green is entitled to be allow- ed for this payment to the counsel, not only as against Gorman and Riddle, but, as against Putney, also. The next question relates to the trustee's claim, to be allowed for the sums of $600, and $200, provided for in the paper 268 HIGH COURT OF CHANCERY. marked B, and signed on the 2d September, 1846, by the counsel, and Gorman and Riddle. The counsel for Putney insists, that the trustee's demand for commissions must be lim- ited to the sum of $100, as provided in the contract of the 31st January, 1845, and signed by the counsel, and Gorman and Riddle. It is true, that by that contract, the trustee did agree to receive only the sum of $100, in the event of his being re- quired by the government, to give his receipt for any moneys which might be recovered ; but, it is equally true, that by the subsequent contract of the 2d January, 1846, signed by two of the counsel, and Gorman and Green, the trustee, it was stipu- lated, that the latter should receive a proper compensation out of these moneys. By the agreement of 1845, which limits the trustee's allowance for commissions to the $100, it is evident, that he was to be merely passive ; passing his receipt for the money, if required to do so by the government, but making no exertion to recover it ; whilst by that of 1846, he engaged to exert himself to secure the payment of the claim by the govern- ment, and to prevent any difficulties which the creditors might interpose, and hence the modification of the agreement, with regard to commissions. So far as Gorman and Riddle are concerned, they being parties to the paper marked B, the allowance to the trustee of these sums is not to be questioned. And, if Putney seeks to avail himself of the agreement of January, 1845, to cut the trustee down to $100, he must also submit to be bound by that of January, 1846, which stipulated, that the trustee should receive a proper compensation for the services therein agreed to be performed. Putney was no party to either of these contracts, and he can- not be permitted to have the benefit of the one, without being bound by the other. He must take both, or neither. And if he repudiates both, the parties are thrown back upon the deed of trust, of 1839, under which the trustee is in terras entitled to a reasonable commission, and his expenses. I think, there- fore, that Green, the trustee, is to be allowed for these two sums. GREEN VS. PUTNEY. 269 We have seen, that by the agreement of the 2d September, 1846, marked B, between the counsel, and Gorman and Riddle, the latter were to be allowed the sum of $2500, for expenses incurred by them in purchasing claims against Putney and Rid- dle, and that, by the previous agreement of the 27th Septem- ber, 1844, between Putney, and Gorman and Riddle, those three parties were to contribute towards such purchases rate- ably, and, that any money which might be recovered from the government, was to be distributed in like manner. The pro- portion of contribution, and distribution, being one-half to Riddle, one-fourth to Putney, and one-fourth to Gorman. It appears by the trustee's sixth report to Baltimore County Court, that of the money received from the government, the trustee advanced to Riddle and Gorman, as assignees of the creditors of Putney and Riddle, the sum of $4592 69, but the paper signed by them, marked C, shows that the whole amount advanced them was $5842 69, the difference being $1250, or one-half of the sum stated to have been expended in purchas- ing up the claims of creditors. I am at a loss to understand how this allowance can be disputed by Putney. The state of the account, then, would seem to be as follows : The amount received by Green was . . $13,985 38 Paid counsel, . $5,342 67 Paid Gorman and Riddle 5,842 69 11,185 36 Leaving in his hands the sum of . . $2,800 02 being within a fraction the amount which, by the order of 12th February, 1847, passed by consent of parties, he was directed to bring into court. That order has been partially complied with, by the payment into court on the 6th of January, last, the sum of 81807 85, but my opinion is, that it must be complied with in full, and the residue of the money brought in. The counsel for Putney is not content with this, but says, that the trustee must also bring in the money paid to the coun- sel, and that he the trustee, and Gorman and Riddle, must like- wise bring in the money in the hands of the two last. 23* 270 HI ^H COURT OF CHANCERY. Some stress is laid upon the fact, that the order of the 12th February, 1847, was passed by consent of parties ; but if this be so, it would be as irregular to enlarge it, as to diminish it. If because it was passed by consent, Green must at all events comply with it, it would seem to follow, that the other parties are equally concluded, and that they have now no right to call upon him to pay in a larger amount. -<* - I do not, however, put my opinion entirely upon the ground of its having been passed by consent, though that circumstance may be entitled to some consideration. It stands as an unre- scinded order of the court, and must be obeyed. The court does not see at this time any sufficient reason for rescinding it, and its having been passed with the assent of the parties, certainly would prevent me from interfering with it up- on any but very strong grounds. The rights of the parties to the money, can be adjusted as well after it is paid in, as at this time. With regard to the sum of $4592 69, advanced by Green, to Gorman and Riddle, on the 2d September, 1846, it may not be easy at this time to determine, whether that is the precise proportion of the fund, to which they are entitled. It cannot be disputed, I presume, that they were entitled to three-fourths of the net amount of the money received from the government, applicable to the claims assigned to them and Putney, and per- haps, therefore, in any view of the case, justice may be done to Putney, out of the fund now under the control of the court, without recalling any portion of that which has been paid to Gorman & Riddle. It is insisted, that Putney's share, whatever it may be, must go to Green, as his trustee in insolvency, and it is also insisted that he contributed no part of the money with which the claims of the creditors were brought up. These questions will be for the present left open, to be deci- ded when the Auditor shall have made his report, but the money so paid, I think, should not, under the circumstances, be ordered to be brought in. If these parties, Gorman and Riddle, have received more than their proportion, they at the proper time will DIXON VS. DIXON. 271 be ordered to refund it, and Green in any event cannot be held liable until their inability is ascertained. It is not, however, to be understood, that, in the opinion of the court, Green would be liable in the latter event, that question being reserved. The court will pass an order, referring the case to the Auditor, with such directions, as can at this time be given ; and reserving such questions, as cannot now be safely decided. [No appeal was taken from this order.] DIXON ET AL. vs. - SEPTEMBER TERM, 1848. DIXON ET AL. [CHANCERY PRACTICE LIMITATIONS.] WHERE a claim has been submitted to, and adjudicated upon, by the court, and finally rejected, through the negligence of its owner, he will not be allowed to re-open the judgment of the court, and ask for and obtain a re-hearing upon additional proof. But, where no adjudication has been had upon the claim, and the fund for distri- bution remains in court, equity requires that the new proof should be consid- ered, and if found sufficient to remove the objection to it, the claim should be allowed. When funds are in this court for distribution among creditors and the Auditor reports, that certain claims have not been proved, or objections for want of proof, made to their allowance by parties interested, the case is again refer- red to the Auditor, with directions to state a final account, from which all claims not then sufficiently proved, are to be excluded, and leave is given to supply the proof upon such terms, as to notices, as may be deemed reasona- ble. Upon the coming in of the report of the Auditor, made pursuant to the order, and after the usual time given for filing exceptions, the report may be submitted for ratification, and when ratified, all parties are concluded, and the litigation is terminated. This is the general rule ; but, there may be cases in which it would and ought to be relaxed, when the party seeking relief can show himself free from blame or negligence. When limitations are relied upon, the defence avails only in favor of the par- ties who set it up. [This was a creditor's suit, and the Auditor's report, with the statement of claims, having been set down for hearing on 272 HIGH COURT OF CHANCERY. exceptions, the demand for full proof, and the plea of limita- tions, an order was passed sustaining the plea of limitations as to some claims, and settling other points, and referring the case again to the Auditor, to state an account from which were to be rejected all claims not then (the time of the audit) fully proved, and in which the plea of limitations was to be allowed against all claims liable to its operation, in favor of the parties pleading or relying upon the statute. From the account stated in conformity with this order, claims Nos. 11, 62 and 63, were rejected for want of full proof, which had been demanded of them, and certain other claims, by the owner of claims Nos. 12 and 30. Before the confirmation of the Auditor's report, the owners of said claims filed their petitions, for leave to furnish full proof, which were set down for hearing on the 7th October, 1848, with liberty to take the necessary testimony by that day. The proof was taken and filed, and the question argued, was, whether these claims should, at so late a day, be admitted to participate in the distribution of the funds, which were insuffi- cient to pay all the claims in full :] THE CHANCELLOR: The claims in question, have never yet been submitted to, and adjudicated upon by, the court. If they had, and had been finally rejected, through the negligence of their owners, the case would be brought within the decision of the Court of Appeals, in Kent vs. O'Hara, 7 Gill fy Johns., 212, and the parties must take the consequences. It would not only be in- convenient, but mischievous, to delay and embarrass the claims of vigilant creditors, and procrastinate the final settlement of estates, if parties were allowed, after full notice and opportunity to establish their claims, to re-open the judgment of the court pronounced against them, and ask for and obtain a re-hearing upon additional proof. But when, as in this case, no adjudication of the court stands in the way, and the fund for distribution remains un- disposed of, it seems to me, that equity requires, that the new DIXON VS. DIXON. 273 proof should be considered, and if found sufficient to remove the objection, the parties should be allowed to come in for their fair proportion of the estate of their debtor. The general rule I understand to be this : When funds are in this court for distribution among cred- itors, and the Auditor reports, that certain claims have not been proved, or parties interested object to their allowance for want of proof, the case is referred again to the Auditor, with direc- tions to state a final account, from which all claims not then sufficiently proved, are to be excluded, and leave is given to supply the proof, upon such terms, as to notice, as may be deem- , ed reasonable. Upon the coming in of the report of the Au- ditor, made pursuant to the order, and after the usual time given for filing exceptions, the report may be submitted for ratification, and when ratified, all parties are concluded, and the litigation is terminated. This, I say, is the general rule, but as the Court of Appeals say, in Kent vs. O'Hara, there may be cases in which it would and ought to be relaxed, as there are cases in which new trials are granted at law, upon the production of new proof, when the party applying for it can show himself free from blame or negligence in not bringing it forward earlier. And even in the interval between the final report of the Au- ditor, made under the directions of the court, and its ratifica- tion, it is not of course that parties are entitled to offer further evidence in support of their claims, when they have already had an opportunity to establish them, and have neglected to do so. But the circumstances necessary to entitle them to this in- dulgence in the latter case, need not be so strong, as where the report of the Auditor has been ratified by the Chancellor, for then it is res adjudicate,, and though the fund may yet be under the control of the court, the party asking for are-hearing, must come armed with circumstances sufficiently strong to ac- quit him of the blame apparently itnputable to him, for not offering his proof at an earlier stage of the cause. But in this case, as before stated, the claims now under con- sideration have not been adjudicated upon, and, I am of opin- ion, the facts disclosed in the petition of the owners of claim 274 HIGH COURT OF CHANCERY. No. 11, are sufficient to entitle them to the benefit of the proof since taken ; and as the case must go again to the Auditor, it seems but equitable that the proof taken in support of claims, numbered 62 and 63, should also be let in, as well as the proof in support of any other claim, which may have been rejected under similar circumstances. The defence of limitations to avail, however, as before ordered, in favor of the parties who have relied upon the statute. [No appeal from this decree.] [Note by the Reporter. The following is the form of the order passed upon the filing of the Auditor's first report in a creditor's suit, where objections have been taken by the parties or any of the creditors. When limitations are relied upon, the objection avails only in favor of the party, setting it up. When full proof is demanded, the objection is understood to go to the whole claim, and must be met by the same proof that would be required if the claimant or party had filed an original bill ; though it will be seen, that the order provides a summary way of taking it. " Ordered, That the exceptions to the Auditor's report filed in this cause, stand for hearing on the next ; and, that any creditor of the deceased, whose claim is stated, or noticed in the Auditor's report, and, also, any of the parties to this suit, be, and they are hereby, severally authorized to take the de- positions of any witnesses in relation to such claims, before any justice of the peace ; provided, that three days notice be given, as usual, by the creditor in whose behalf the testimony is pro- posed to be taken, to some two or three other creditors, or one or more of the parties or their solicitor ; or, by one or more of the parties in whose behalf the testimony is proposed to be taken, to some two or more of the creditors, or to their solicitor. But the creditor against whose claim the testimony, when taken, is intended particularly to operate, must himself, or his solicitor, be notified. And, depositions so taken, subject to all legal exceptions, may be read in evidence in the cause ; provided, they are filed in the chancery office, on or before the next.] POTTER VS. KERR. 275 MOSES POTTER ^ vs. C SEPTEMBER TERM, 1848. EDWARD M. KERR. 3 [INSOLVENT LAWS FOREIGN CREDITORS.] THE rights of foreign creditors are not affected by the discharge of an insolv- ent, under the laws of Maryland. State insolvent laws, although constitutional in their action upon the rights of their own citizens, are unconstitutional when they affect the rights of citizens of other states. A discharge under the insolvent laws of Maryland cannot affect the right of foreign creditors to obtain against the insolvent, in the Maryland courts, an absolute and unqualified judgment, and to place their execution upon any property of the insolvent debtor to be found undistributed in the hands of the trustee. [The bill was filed in this cause on the 8th of September, 1846. It appears that about the 20th of January, 1845, Moses Potter, the complainant, and Edward M. Kerr, the defendant, commenced business in Baltimore ; and that the relations be- tween them was arranged and established by an agreement, which amongst other things, stated that Kerr had agreed to employ Potter, "as a salesman and general clerk, in his store, No. Baltimore street, in the city of Baltimore, and to allow him for the faithful performance of his services in that capacity, one-quarter of the net profits that may arise from the business, after deducting all expenses, and the interest on amount of the capital stock put in said business, at the rate of six per cent, per annum, and to pay the said Moses Potter from the concern, for his support, the sum of eighty-three dollars and thirty-three cents, per month, which said monthly payments are to be ad- vanced out of the net profits coming to the said Moses Potter, and to be deducted from his one-quarter share of the net profits at the end of each year." The agreement contained also the following clause : "And it is hereby declared to be the mean- ing of the articles of agreement aforesaid, that thereby the said Moses Potter is not made a partner in trade of the said E. M. Kerr, but that the allowance of one-fourth of the net profits. 276 HIGH. COURT OF CHANCERY. after deducting the expenses of the business," &c., "is as com- pensation for the services of the said Moses Potter in lieu of clerk hire, and, further, that the said E. M. Kerr, is to sign all bonds, notes, or other obligations for the payment of money, or the performance of any contracts or any agreements necessary to be entered into for the conducting of the said business," &c. The bill stated that Potter was held out to the world as a part- ner, and that the business was conducted in the name of E. M. Kerr & Co., and that although he had not been treated as such in the distribution of the funds, his being so represented to the world, made him liable for the debts of the firm ; which were very considerable, as were also its resources, in debts due, and merchandise on hand ; that Kerr, in his individual capacity, had incurred heavy responsibilities, and was applying the funds of the concern to meet them ; that attachments had been issued against the effects of the firm by his individual creditors ; and that he had refused to account with him or to pay him his share of the profits. The bill prayed for the appointment of a receiver ; the application of the funds, firstly to the payment of the joint debts of the firm ; for a dissolution of the partnership ; an in- junction to restrain the defendant from meddling with the funds, or interfering with the receiver ; and an account. The answer denied that the complainant had ever been treated by the de- fendant as a partner, either publicly or privately ; and stated that the name of E. M. Kerr & Co., under which he had con- tinued to trade, was the name of an old firm, of which he had been the active member, and was used by him as being well known to the world ; that his acts had not been such as to make the complainant liable for the debts of the concern ; and that the complainant had appropriated to his own use, moneys re- ceived by him on defendant's account, far exceeding what he was entitled to under the agreement. An injunction was grant- ed by the late Chancellor upon the filing of the bill, and the de- fendant on putting in his answer, moved for its dissolution, which motion was ordered to stand for hearing at December term, 1846. The case was argued before the present Chan- cellor, who delivered his opinion on the llth January, 1847, POTTER VS. KERR. 277 in favor of a continuance of the injunction. A number of de- positions, and written evidence, to be used at the hearing, had been filed under an agreement ; the effect of which, the Chan- cellor said, was to show that "the complainant occupied a po- sition in the business, with the knowledge and consent of both parties, which made him, as to third persons, a partner in the concern." And also that the concern was in very embarrassed circumstances, if not actually insolvent. The question of part- nership was minutely and elaborately considered by the Chan- cellor, who decided that a partnership did exist as to third persons, though not as between the parties themselves. The case was again argued at the same term, on the appointment of a receiver, and in his opinion, on that occasion, he entered into a further consideration of the same question, deciding as before, the main ground relied on, being the fact of the com- plainant having been allowed for his services, a share of the profits. By the order filed with this opinion, on the 1st of February, 1847, George M. Gill, was appointed receiver, who duly qualified as such. From this order, and from those grant- ing and continuing the injunction, the defendant appealed. On the 27th of April, 1847, the receiver having reported sales of the property to a large amount, an order was passed directing him to notify creditors of the firm to file their claims, and the case was afterwards referred to the Auditor to make a statement of the claims filed, several of which were judgments recovered against E. M. Kerr, by citizens of the state of New York ; and an account. The Auditor in his report, filed 12th of October, 1847, stated that, with a few exceptions, all the claims filed, appeared to have originated since the formation of the partner- ship ; that it would appear from these, that the defendant's course was to deal in his own name, and that there was nothing to show that any one of them was entitled to preference over the rest. His account was stated accordingly, but was except- ed to, and overruled, as to this mode of treating the claims, by the Chancellor. The Court of Appeals, at June term, 1848, reversed the orders appealed from, and remanded the cause to this court, "for such further proceedings, as the nature of the VOL. i 24 278 HIGH COURT OF CHANCERY. case, and the rights and equities of the parties may render ne- cessary ;" but no opinion was delivered, or statement made of the grounds upon which this decision was based. After the case was decided in the Court of Appeals, John Glenn, as permanent trustee of Kerr, who had petitioned for the benefit of the insolvent laws, filed his petition in this court, to have the money, property, books and effects of the defend- ant, in the hands of the receiver, delivered over to him. The receiver was directed to show cause against this application, and an answer was filed by him for that purpose. By this it was represented that sundry attachments had been laid in his hands, issued upon judgments, some of which were rendered against Kerr, individually, and some against Kerr and Potter, jointly ; that one of them was issued prior to the decree of the Court of Appeals ; the residue subsequently thereto, and that all of them were still depending; the former in the Circuit Court of the United States for the district of Maryland ; and the others in Baltimore County Court ; and submitted whether the receiver under the circumstances, could with safety to him- self deliver up the property.] THE CHANCELLOR : It is insisted on the part of the insolvent trustee of Kerr, that the orders granting and continuing the injunction, and appoint- ing a receiver, being reversed, Kerr, if he had not petitioned, would be remitted to all his rights, and would be entitled to a restitution of the property ; and that the trustee being clothed with all his rights, the possession must be restored to him. It is to be presumed, however, if the Court of Appeals had considered it proper to dispose of the question of title in this summary way ; that is, if they had thought, that in no possible phase which the cause might assume, the creditors of the mer- cantile house of E. M. Kerr and Company, or the joint credi tor of Kerr and Potter, could intervene in this cause for the pro- tection of their rights, and ask the court to apply the assets to their payment in preference to the private creditors of Kerr, they would either have dismissed the bill, or remanded the POTTER VS. KERR. 279 cause to this court with directions to dismiss it, after recalling the funds from the receiver. But this was not done, the direc- tion being to proceed, as the nature of the cause, and the rights and equities of the parties, may require. The parties to the record before the Court of Appeals, were Moses Potter vs. Edward M. Kerr, and it may be that the court decided the cause upon the ground, that upon that record they could only regard the rights of those parties inter se ; and there being as between them no partnership, there was no foun- dation for ihe orders appealed from. It must have been manifest to the Court of Appeals, how- ever, that there were creditors of the house to a large amount, for that appeared by the pleadings ; and it must have been equally obvious to that tribunal, that Kerr was insolvent, and that claiming the sole ownership of the property, he insisted upon his right to apply the effects to the payment of debts due from him, not connected with or growing out of the business of the house ; and this may have been the reason why the bill was not dismissed, or the record remanded to this court, with directions to dismiss it, after the property should be taken out of the hands of the receiver. The Court of Appeals may have considered, that the credi- tors not being parties to the cause before that court, the orders passed by this court, which were designed for their protection, could not be supported ; but that seeing there were creditors to a large amount, who might become parties at a subsequent stage of the cause, and whose rights would be jeoparded by restoring the property to Kerr, it was deemed right, instead of pronouncing a final judgment, to send the case back to this court for such further proceedings as the interests of the credi- tors might require, and to give them an opportunity of coming in and being heard. This view of the subject borrows strength from the disposi- tion which the appellate court made of the subject of costs. They award the appellant the costs incurred by him upon the appeal, and in the Court of Appeals ; but leave undecided the question of costs in this court, which it is fair to infer^ would 280 HIGH COURT OF CHANCERY. not have been done if they had meant to decide the whole con- troversy, and to restore to the appellant without restriction and at once, the subject in dispute. Supposing it possible, nay, probable, that if the creditors of E. M. Kerr & Co., had been parties to the record before the Court of Appeals, a different decision would have been made, it follows, that as these creditors are now here upon the invita- tion of the court itself, it would be proper, at least for the pre- sent, to abstain from passing any order which may seriously endanger their interests. In a very short time, it is believed, the Court of Appeals will deliver their opinion, when the doubts which now surround this subject will be removed. The order which the court will pass, whilst it will secure the property for those who may be entitled to it, will expose no parties to danger. The propriety of the order which the Chancellor, under the circumstances thinks it right to pass, would seem to be vindi- cated by another consideration. Attachments, as we have seen, have been laid in the hands of the receiver, one of them prior to, and the other since, his authority was revoked, and it would, perhaps, be presumptuous in this court to pronounce absolutely upon the validity of these proceedings. Should they be sustained by the courts in which they are pending, and this court, by its order should take the property from the receiver, and hand it over to the trustee of Kerr, the former might be involved in heavy loss. It is surely the duty of this court to protect its officer from loss when acting in the discharge of his duty, and especially when it can be done without exposing the rights or interests of others to the slight- est risk. It has been urged in the argument, that the right of the pe- titioner, as the permanent trustee in insolvency of Kerr, to the possession and administration of this fund, is superior to any which he himself could have claimed, if he had not applied for the benefit of the insolvent laws ; and the case of Alexander vs. Ghiselin is relied upon in support of this position. That case might have a controlling effect, if it did not appear, POTTER VS. KERR. 281 as it does in this case, that a number of these judgment credi- tors are non-residents of the state. The rights of these creditors are, unquestionably, not affected by the discharge of Kerr under the insolvent laws of Maryland. Independently of the case of Cook vs. Moffatt et a/., 5 Howard Rep., 295, the last decision, it is believed, of the Supreme Court upon the subject, the Court of Appeals of this state, in the case of Frey vs. Kirk, 4 Gill fy Johns., 509, have put the question at rest. In remarking upon the case of Ogden vs. Saunders, 12 Wheaton, 213, they say, that the ultimate opinion of Mr. Justice Johnson, which established the law upon the subject, settled among others, the principle, "that such laws, (speaking of the state insolvent laws,) although constitutional in their action upon the rights of their own citizens, are unconstitu- tional, when they affect the rights of citizens of other states." It is said, however, that though the state insolvent laws are un- constitutional, so far as they operate upon the rights of the citi- zens of other states, that yet the decisions of the Supreme Court of the United States, concede to the states, the power to pass laws, affecting and regulating the remedies which may be re- sorted to, for the enforcement of those rights. And it is urged, that our state insolvent system, which, as expounded by the Court of Appeals in the case of Alexander and Ghiselin, places the whole property of the insolvent in the hands of the trustee, to be administered by him, is a mere regulation of the remedy, and so far constitutional and binding upon the citizens of other states. And that, consequently, the property must be delivered to the trustee, who will distribute it among the creditors ac- cording to their respective rights. This view of the subject is in direct conflict with what was said by the learned judge, who delivered the opinion of the Court of Appeals in the case of Larribee vs. Talbot, decided at December term, 1847, which was, that "it was now settled by the adjudications of the Supreme Court, that a discharge ob- tained under the insolvent laws of Maryland, could not affect the right of foreign creditors to obtain against the insolvent in the Maryland courts an absolute and unqualified judgment, and 24* 282 HIGH COURT OF CHANCERY. to place their execution upon any property of the insolvent debtor to be found undistributed in the hands of the trustee." Whether this position is to be regarded as an obiter dictum or not, it is of course entitled to great consideration ; and see- ing that the case was decided at the same term as that of Alex- ander and Ghiselin, with which it is supposed to be inconsist- ent, we must presume that the enlightened tribunal by which both causes were decided, were clearly of opinion, that nothing decided, or even said by way of argument, in the one, was in conflict with the other.- The conflict, certainly, is not apparent to me, nor do I see the dangers which it is said the domestic creditors will be ex- posed to, if property in the hands of the trustee, upon which they have acquired liens, prior to its transfer to him is after- wards levied upon in his hands at suit of the foreign creditor of the insolvent. Because, although the foreign creditor may lay his execution on property in the hands of the trustee, such levy must be subject to the prior liens of the domestic creditor, and any sale which may be made under such execution would pass the property subject to the same lien, precisely as if the party liad not petitioned, and the levy and sale had been made whilst rihe property remained in the hands of the debtor himself. My opinion, therefore, is, that as this case now stands, I cannot grant the application of the trustee of Kerr, and must dismiss his petition, but inasmuch as the anticipated opinion of the Court of Appeals, may present his right in a different as- pect, it will be dismissed without prejudice to his rights here- after to renew the application as he may be advised. The money and funds, however, now in the hands of the receiver, will be ordered to be brought into court to be deposited to the credit of this cause. HINTZE VS. STINGEL. 283 FREDERICK E. B. HINTZE vs. ^ SEPTEMBER TERM, 1848. CHRISTOPHER STINGEL AND WIFE.. [TRUSTEE'S SALE INADEQUACY OF PRICE.] INADEQUACY of price is not sufficient ground for setting aside a sale otherwise unexceptionable, unless the sum reported is so grossly inadequate as to indi- cate a want of reasonable judgment and discretion in the trustee. But, where any other just cause appears, to doubt the propriety of the sale, it is a consideration very proper to be viewed in connection with it, that the sale was made at a reduced price. It appearing, that the defendant, who was a German, and imperfectly acquaint- ed with our language, called upon the trustee a few days before the sale, for information as to the day of sale ; and, that either the trustee incautiously misinformed him on the subject, or that he misunderstood the trustee, owing to his imperfect knowledge of the English language ; and, that a bidder who would have given nearly twice the amount for 'which the property was struck off, was kept from attending the sale by the information which he received from the defendant ; upon these circumstances and the concurrence of the plaintiff in the application, the sale was set aside. [On the 2d of May, 1848, certain real estate in the city of Baltimore, belonging to the defendant, was sold under a chan- cery decree to satisfy a mortgage debt of the complainant. The defendant, who was a German, and imperfectly acquainted with the English language, applied to the trustee, shortly be- fore the sale, to know on what day the property was to be sold. According to his understanding of the trustee's reply, the sale was to take place on the 5th of May ; and, under that impression, he commenced arrangements for obtaining money to pay the amount due on the mortgage, or at any rate, to procure the at- tendance of purchasers at the sale. The sale was made, as above stated, on the 2d of May, 1848, without the defendant's knowledge, who had induced persons to attend on the 5th of the month, willing to give a much high- er price for the property than was given by the purchaser, Hud- son. The trustee, in his report, mentioned most of the above circumstances, and also stated, that the property sold much be- low its value, and the purchaser had paid him $>(iOO of the pur- 284 HIGH COURT OP CHANCERY. chase money, which he was ready to refund if a re-sale was ordered. A petition was filed by the defendant to set aside the sale, and the complainant also expressed his willingness that it should be vacated. This, however, was opposed by the pur- chaser who alleged the fairness of the proceedings. Some de- positions were taken in relation to the value of the property, as well as other matters affecting the merits of the question, by which it appeared that its value was far beyond what it was sold for ; and the case being argued at this term, the Chancellor, after stating the case, said :] THE CHANCELLOR : The Court of Appeals of this state said, in the case of Glenn, Trustee of Dorsey vs. Clapp, 11 G. fy /., 1, lhat the court would not set aside a sale, in all other respects unexceptiona- ble for inadequacy of price, unless the sum reported by the trus- tee is so grossly inadequate as to indicate a want of reasonable judgment and discretion in the trustee : but, where any other just cause appears, to doubt the propriety of the sale, it is a consideration very proper to be viewed in connection with it, that the sale was made at a reduced price. The Court of Appeals have not said what that degree of in- adequacy is, which, standing alone, would vitiate the sale ; or, in other words, would demonstrate the want of reasonable judgment and discretion in the trustee ; nor, is it necessary that I should, in this case, undertake to lay down a rule upon the subject. It is enough, that inadequacy of price is a con- sideration which should not be without its influence upon the mind of the court, when there are other circumstances well cal- culated to create a doubt of the propriety of the sale. It is true, as was strongly pressed by the solicitor of the purchaser in this case, that sales made under judicial authority, should not be lightly interfered with, and that reasons, founded upon public policy, require that every fair legal intendment should be made in their support. But still, the court, which is the vendor, and undertakes to sell the title of the parties to the suit, is sure- ly bound to protect them from the consequences of surprise, HINTZE VS. STINGEL. 285 misapprehension or mistake; and, especially, is it under an ob- ligation to do so, when it has just grounds for supposing, that the acts or declarations of the officer employed by it to make the sale, has been the cause of such surprise, misapprehension or mistake. Now, in this case, in view of the facts stated by the trustee in his report, and of the grounds set forth in the petition of the defendant, sustained as that is by the evidence of disinterested parties, there is, I think, scarcely a doubt, that the trustee did, from inadvertence, misinform the defendant in regard to the day of sale ; or, at all events, from his (the defendant's) imperfect knowledge of our language, he misunderstood the trustee upon the subject. It would seem impossible to doubt this ; and the deposition of James Slater, a witness whose veracity is not questioned, and of whose ability to pay no doubt has been expressed, says, but for the information which he received from the defendant, as to the time of sale, he would have attended, and if present, he would have given two thousand dollars for the property. It is true, there is some discrepancy between the evidence of this witness, as to the precise day on which he says the defendant told him the sale was to take place, and the statement of the defendant, in his petition. But, it is clear, beyond dispute, that the defendant was under a misapprehension upon the subject; and the evidence of Slater shows, that this misapprehen- sion caused the defendant to make to the witness an erro- neous statement as to the day of sale, which resulted in a loss of nearly one-half the value of the property. It appears to me, that the following facts are indisputably established in this case : 1st. That the defendant did call on the trustee a few days before that on which the sale was made, for information as to the day of sale. 2d. That the trustee either incautiously misinformed him upon the subject, or, that the defendant misunderstood the trustee, owing to his (the defendant's) imperfect knowledege of our lan- guage ; and, 286 HIGH COURT OF CHANCERY. 3d. That a bidder who would have given nearly twice the amount for which the property was struck off, was kept from attending the sale by the information which he received from the defendant. These circumstances, I am persuaded, must cause a doubt, and a strong doubt, of the propriety of the sale, and when viewed in connection with the unquestionable fact, that the property sold much below its value., seem to me to furnish suf- ficient grounds to vacate it. This case, in some of its features, and, especially, in that particular one upon which my judgment is formed, is striking- ly like the case of Williamson vs. Dale, 3 Johns. Ch. Rep., 290, in which a sale made by a master in New York was set aside, upon the ground of surprise ; the surprise consisting in a mis- apprehension on the part of the defendant, as to the day of sale, founded upon conversations had by their agent with the plain- tiff and his solicitor there was, in that case, as stated by the Chancellor, no imputation of any unfair intention in the plain- tiff or the solicitor, or of any unfair conduct at the sale ; but still, upon the ground, that the defendants were innocently mis- led, the sale was vacated ; though the purchaser was conceded to stand fair before the court, upon which he was allowed his costs, which I shall order to be paid him in this case. There was inadequacy of price shown in the case before Chancellor Kent, but that, he said, would not be sufficient, un- attended with other circumstances. He put it upon the ground of surprise, though he remarked, the surprise was not of the most stringent kind ; and the case for relief, on that ground, was pushed to the utmost verge of an admissible interference. The case now under consideration is, I think, stronger than that of Williamson and Dale; and, therefore, I do not think I am treading on delicate or dangerous ground, in vacating this sale and ordering the property to be put again in the market. Some of the objections, founded on considerations of public policy, are certainly obviated by the concurrence of the plaintiff, in the application for the interposition of the court. An order will be passed, setting aside the sale, directing the MITCHELL VS. HOLMES. 287 trustee to return to the purchaser the money which he has paid, and for the payment of his costs by the defendant, or' (frit of the proceeds of any future sale which may be made by the trustee. [No appeal was taken from this order.] j WALTER MITCHELL vs. SEPTEMBER TERM, 1848. WILLIAM HOLMES ET AL. [APPLICATION OF INCOME OF TRUST ESTATE TRUSTEE'S COMMISSIONS DEVISE.] UPON a devise of real and personal property to a trustee, in trust, to apply the income arising therefrom for the mutual benefit of the uncle and aunt of the testator for life, and after the death of the uncle to the mutual benefit of the aunt and her children. It was HELD That, during the life of the uncle and aunt, the income of the trust estate should be equally divided between them ; and, that the title of the children of the aunt to participate in the income, is to be postponed until after the death of the uncle. The testator having said that the trustee, whom he also appointed his executor, shall have "ten per cent, on the whole amount of property which may come into his hands as trustee." It was HELD That he was entitled to this percentage on the whole amount of property, and not on the income only, irrespective of the sum which may have been allow- ed him by the Orphans Court as executor ; and, in this respect, the two of- fices are to be regarded as distinct, as if filled by two different persons. [The two questions presented to the court in this case, (the facts of which will appear from the Chancellor's opinion,) were, firstly, into what proportions was to be divided the income of certain trust property, devised to two for life, and after the death of one of them, for the mutual benefit of the other, and her children ; remainder to the said children in fee. And, secondly, whether a trustee, who, as executor, had received a commission on property, paid into the trust fund, should be allowed, as trus- tee, an additional commission on the same property.] 288 HI GH COURT OF CHANCERY. THE CHANCELLOR: In the will of the late Ignatius Semmes, who died in the year 1843, there is the following clause : "I give, and devise to Walter Mitchell, Esquire, my farm called Rose Hill, together with all the rest of my negroes," (some being manumitted by a previous clause,) "stock of every description, and plantation utensils in trust, to and for the following uses and purposes, that is to say : the income arising therefrom, to be applied to the mutual benefit of my uncle, William Holmes, during the life of my said uncle, and my aunt Sarah Floyd ; and after the death of my said uncle, to the mutual benefit of my aunt Sarah Floyd, and her children ; and after the death of my said aunt Sarah Floyd, to the use and benefit of the children of my said aunt Sarah Floyd, until the youngest shall arrive at the age of twenty-one years ; and then, I will, and devise the said farm, called Rose Hill, together with the rest of the property so as aforesaid left in trust, to the children of my aunt Sarah Floyd, to them, and their heirs forever, share and share alike. And for his care and trouble in the execution of the said trust, I give to the said Walter Mitchell, ten per cent, upon the whole amount of property, which may come into his possession as trustee." Mr. Mitchell, who was also appointed executor of the will, assumed the execution of the trust, and having proceeded for some time in the discharge of his duty as trustee, and having passed in the Orphans Court his final account as executor, filed his bill in this court on the 7th of April, 1847, making the cestuis que trust parties, and asking the aid and direction of this court, in the administration of the trust. There does not appear to be any controverted fact in the cause, the questions presented for the opinion of this court, which de- pend upon the true construction of the will, being first, with re- gard to the rights of the cestuis que trust and, secondly, as to the compensation which the trustee may be entitled to, for his risk and trouble in the performance of his trust. The first question, relates to the proportions in which the in- come of the trust estate shall be divided ; and upon that, I am MITCHELL VS. HOLMES. 289 of opinion, that during the life of William Holmes, the uncle of the testator, and of his aunt, Sarah Floyd, the income should be divided between them in equal moieties ; and that the title of the children of the aunt, to participate in the income of the trust estate, is postponed until after the death of the uncle. With regard to the proper application of the income, during the joint lives of the uncle and aunt, there does not seem to me to be much difficulty, it being clearly the intention of the testator to divide it equally between them. In the event of the death of the uncle, living the aunt, a question of some difficulty might arise respecting the proportions in which, upon that contingency, the income of the estate should be divided among the aunt and her children ; but as this con- tingency may not happen, there does not appear to be any ne- cessity for an expression of the opinion of the court upon it. As the case is submitted without argument, there seems to be a peculiar propriety in confining the opinion of the court, to the questions which the condition of the case at this time, ren- ders important. The other question has reference to the commission of the trustee. He has already received as executor, eight per cent, upon the personal estate now in his hands as trustee; and the answer of the defendant Holmes, insists, that the trustee is only entitled to ten per cent, commission on the gross income of the personal estate. But the testator has said, that he shall have "ten per cent, up- on the whole amount of property, which may come into his hands as trustee." Not upon the amount of income, but upon the amount of property, and this declaration of the testator gives the law of the case. The compensation thus fixed by the tes- tator to be paid to the trustee, is to be paid to him as such ; regarding him, when acting in that capacity, as filling an office wholly distinct from the office of executor. The per centage is to be paid him on the property, which may come into his hands as trustee ; an office, so far as this question is concern- ed, entirely distinct from that of executor, and the compensa- VOL i. 25 290 HIGH COURT OF CHANCERY. tion which he may have been allowed by the Orphans Court for discharging the duties of executor, should have no more in- fluence upon his commission as trustee under this will, than if the two offices were filled by different persons. I am of opinion, therefore, that this trustee is entitled in the settlement of his accounts as trustee, to an allowance of ten per centum upon the property which may have come into his hands as such. He is not, however, to be allowed ten per cent, or any thing at all, upon his disbursements ; the com- mission fixed by the testator, being the equivalent for his ser- vices in the administration of the trust, which includes of course the proper application and disbursement of the income of the trust estate. An order will, therefore, be passed referring the case to the Auditor, to take the proper accounts, and making provision for the taking of such evidence as the case may require. [No appeal was taken from this order.] MARY MOODY ET AL. ~\ vs. . SEPTEMBER TERM, 1848. EMILY ELLIOTT ET AL. 3 [CONSTRUCTION op WILL.] A TESTATOR devised certain real and personal property to his wife, "to her use, for the benefit of her and her children under age, and after they all come of age," to his wife during her natural life, and "no longer;" and after her death, the whole "to be divided equally, share and share alike," between the testator's seven children, (naming them,) or equally between such as shall then be living. It was HELD That, though this will was executed prior to the act of 1822, ch. 162, which abolishes thereafter estates in joint-tenancy, unless the devise expressly de- clares, that the property shall be so held, this devise does not create an estate in joint-tenancy. The words, "to be equally divided, share and share alike," even in a deed, would create a tenancy in common. The will being prior to the act of 1825, ch. 119, and there being no words of inheritance or perpetuity, or any other language used, from which the inten- tion of the testator to pass a fee could be clearly ascertained, it was held, that the children took estates for life only. MOODY VS. ELLIOTT. 291 The true construction of the whole clause is That the widow took an estate for life for a period thereof to be held by her, for the benefit of herself and her children, that is, during their minority. Upon the children attaining their full age, the widow still living, her estate would continue until her death disencumbered of any charge on account of the children ; and, upon her demise, the limitation over for life to the children would take effect, and upon their death, the inheritance would pass to the heirs at law of the tes- tator, as property undisposed of by the will. [The question involved in this case, relates to the construc- tion of the will of James Elliott, deceased, who died in 1809, and is brought before the court by exceptions to the Auditor's report ; the nature of the case being sufficiently explained by the Chancellor's statement of the facts, and his comments thereon :] THE CHANCELLOR: The question relates to the disposition of the proceeds of a house and lot on Aisquith street, in the city of Baltimore, sold under a decree of this court. The clause in the will devising this property, is in the following words : "I give and devise unto my beloved wife, Mary Elliott, my house and lot on the east side of Aisquith street, with all the improvements and privileges thereto belong- ing in fee-simple," (and certain personal property,) "to her use, for the benefit of her and her children under age, and after they all come of age, to my wife her natural life, for her to peace- ably enjoy, and no longer. She to pay all taxes that may arise, and after her death the whole of this demise, both real and per- sonal to be divided equally, share and share alike, between my seven children, five sons and two daughters," (naming them,) "or equally between all those of my children as shall then be living." The will contains various other clauses, affecting other por- tions of the property of the testator, but has no residuary clause disposing of such portions of his estate as may not be embracecL^ in the specific devises and bequests. ^^ Four of the children are dead ; two, John and Joseph, leav- ing issue ; and James and Thomas, without issue ; and, the 292 HIGH COURT OP CHANCERY. bill was filed by the widow, who married a second time, (and whose second husband has also died,) and several of the children of the testator, against other of his children, for the sale of this property ; upon the allegation, that it was not sus- ceptible of partition, and, that it would be advantageous to all parties concerned that it should be sold, and the proceeds di- vided among them according to their several and respective rights. In the account of the Auditor reported on the 7th of July last, the net proceeds of the sale, after assigning to the widow a portion thereof, as an equivalent for her life estate, are dis- tributed among the surviving children, and the grandchildren of the testator, giving to the grandchildren the portions of their respective parents ; and the point to be decided is, whether this distribution is the proper one. The bill proceeded upon the hypothesis, that the whole estate was disposed of by the will, and must be understood as conced- ing, that the grandchildren had succeeded to the rights of their parents, as otherwise there could have been no motive for making them parties. It was, however, subsequently supposed that these grandchildren of the testator, were not entitled to any portion of this money, upon the ground that the limitation over, after the termination of the life estate of the widow, was restricted to the children who may be living when that event shall occur. And in opposition to the right of the grand- children, it was also insisted in the argument, that the children of the testator, whether the benefit of the devise, was to be confined to the survivors of the widow or not, took as joint tenants, and that consequently, the children of the deceased brothers must be excluded, upon the doctrine of survivorship the will having been executed prior to the act of 1822, ch. 162, which abolishes thereafter, estates in joint-tenancy, ex- cept where the deed, devise, or instrument of writing, expressly declares, that the property shall be so held. f It appears to me, however, to be very clear upon authority, that this devise does not create an estate in joint-tenancy. Perhaps, in the present disposition of the courts in regard to MOODY VS. ELLIOTT. 293 these estates, it would not do so even in a deed and in a court of law ; but, unquestionably, in a court of equity, and acting upon a will, it cannot have that effect. 4 Kent, 361. The words of the devise are, "to be divided equally, share and share alike," which words, even in a deed, have been con- strued to create a tenancy in common. 1 Thos. Coke, 773, note 42. And the cases referred to in the same note show, that the words, "share and share alike," or "between," or any other words indicating an intention, that the devisees shall take several and distinct shares, will make them tenants in ^ common. ^9r The children, therefore, of the testator, take as tenants in common, after the determination of the life estate of the widow ; and, as I think, they take this estate for life only the will being prior to the act of 1825, chap. 119, and, there being no words of inheritance or perpetuity, or any other language from which the intention of the testator to pass a fee, can be clearly ascertained, which, according to the authorities, is indispensa- ble, even in the case of a will, where a much more liberal con- struction is allowed than in a deed or grant. As, therefore, these parties took as tenants in common in re- mainder for life only, it follows that the fee was undisposed of by the will, and, consequently, upon the termination of the various estates for life, the heirs of the testator would be en- titled to the possession and enjoyment of the inheritance. The true construction of this clause of the will in my opinion, is this. The widow took an estate for life for a period there- of, to be held by her, for the benefit of herself and her children, that is, during their minority. Upon the children attaining their full age, the widow still living, her estate would continue until her death, disencumbered of any charge on account of the children ; and upon her demise the limitation over for life to the children would take effect, and upon their deaths the in- heritance would pass to the heirs at law of the testator, as property undisposed of by his will. The Auditor by his report of the 7th of July last, gives to the children of the two sons of the testator, who died leaving 25* 294 HIGH COURT OF CHANCERY. issue, the portion to which their respective parents would have been entitled ; that is, he gives to each family of children one- fifth of the money, after deducting the share awarded to the widow for her life estate ; and the remaining three-fifths, he assigns to the surviving children. This distribution was made upon the hypothesis, that the whole estate passed by the will, and, that the children of the deceased children of the testator, succeeded to the interests of their respective parents, which was the view taken by the draftsman of the bill. This view, however, is, in my judgment, erroneous, inas- much as the inheritance did not pass under the will ; but, as the proportions awarded to the parties by this account, are precisely the same as they would be, if the inheritance had been regarded by the Auditor as undisposed of by the will, there is no reason why another account should be stated. In either aspect of the case, the result would be the same, and sending the case back to the Auditor would be accumulating costs for no object. The idea was thrown out in the course of the argument, that under this devise the widow took the entire estate ; but, I did not understand, that it was very seriously pressed, and it ap- peared to me manifest, that such a construction would be clearly repugnant to the intention of the testator, and, therefore, wholly inadmissible. The language of the will is clear and ex- plicit, that she should hold for life, and "no longer," and although in a previous part of the clause, the words "in fee- simple" are employed, it is obvious they were not used in the sense attributed to them. An order will pass ratifying the first account of the Auditor. No appeal was taken in this case.] SNYDER VS. SNYDER. 295 HANNAH SNYDER ET AL.^ vs. > SEPTEMBER TERM, 1848. JULIA SNYDER ET AL. 3 [JURISDICTION.] THE Court of Chancery has no authority over a trustee acting under the de- cree of a court of concurrent jurisdiction. If such an authority were exer- cised by the co-ordinate equity tribunals of the state, the utmost confusion and clashing of power would ensue. THE CHANCELLOR : This case being submitted on the part of the complainants, during the sittings of the term, and being now laid before the court, without argument, the proceedings have been read and considered. The bill, which was filed on the equity side of Baltimore County Court, professes to be a creditor's bill, and prays for the sale of the real estate of James Snyder, deceased, for the payment of his debts. By an amended bill also filed in the same court, on the 26th of November, 1847, it appears, and is alleged, that prior to the filing the original bill, the complainants had discovered, that the defendants had obtained a decree in said court by consent, and without the knowledge of the complainants, for the sale of the property in question, for the purpose of distribution, and, that the same had been sold by trustees appointed for that pur- pose ; and the bill prays, that the said trustees be prohibited from paying any portion of the proceeds of the sale to the de- fendants, and that they be required to bring the same into court, to abide the decree which may be passed in this cause. Answers to this bill, original and amended, were filed by the defendants to the original bill, and also by the trustees appointed to make the sale, and after some proof had been taken under a commission, the case was transferred to this court, under the act of assembly, upon the suggestion of the complainants. But, the case in which the decree passed, under which the sale of property was made, has not been brought 296 HIGH COURT OF CHANCERY. to this court, and is, consequently, now depending on the equity side of Baltimore County Court. And, the application, therefore, to this court now is, that trustees, appointed by a decree of Baltimore County Court, to make sale of property in a case which is still there, shall bring into this court the proceeds of such sale to await the decree which may be passed by the court in this cause. It is, I think, very clear, that this cannot be done the case of Brown vs. Wallace, 4 Gill and Johns., 469, is directly opposed to it. The remedy of the plaintiffs (if they have any) would seem to be by a proceeding in the court under whose au- thority the sale was made, and, perhaps, by a petition in the same cause. It is very certain, however, that this court can- not order a trustee, acting under the decree of a court of con- current jurisdiction, to do any thing. If such an authority were exercised by the co-ordinate equity tribunals of our state, the utmost confusion and clashing of power would ensue. [The Chancellor then ordered, that the "bill and the amend- ed bill of complaint" be dismissed with costs.] [No appeal was taken from this decree.] SAMUEL W. THOMAS vs. WOOD, EX'R OF HARRISON. TI-TM 184ft WOOD, EX'R OF HARRISON, r vs. SAMUEL W. THOMAS ET AL. (CONSOLIDATED.) [CONVERSION FAILURE OF DEVISE TO WIDOW MANUMISSION ADMINISTRATION DE BONIS NOV.] LANDS devised to be sold are turned into money, and considered, in equity, as personal estate. A testator devised his lands to his executors to be sold, and gave a legacy of |2000 to his niece, to be paid her out of the proceeds of the sale of his real estate. HELD THOMAS VS. WOOD. 297 That the surviving husband of the niece, had the same title to demand this lega- cy bequeathed his wife, as if it had been payable out of the personal estate of the testator ; and, that it made no difference whether the wife died before or after the sale actually took place. A partial failure of a devise to a widow who abides by the will, will not entitle her to compensation out of the residue of the estate, unless the failure is to such an extent, as to make what she receives under the will, less in value than her legal share of her husband's estate. When it is said in the act of 1798, ch. 101 ; sub. ch. 13, sec. 5, that a widow . standing by the will of her husband, is to be considered as a purchaser with a fair consideration, it cannot be meant, that she is so to be regarded, what- ever may be the extent of the devise to her. But, the sound and just rule must be, that she is to be considered a purchaser of the devise, to the value of her share or legal right. The whole of the testator's property will, in equity, be charged with the pay- ment of his debts, in favor of his manumitted slaves, and, in a judicial pro- ceeding, to determine the invalidity of a deed of manumission as being in prejudice of creditors, the negro manumitted is entitled to the assistance of the heir at law, or the person holding the real estate, in taking an account of the amount thereof before the insolvency of the deceased manumittor can be legally ascertained. With regard to the manumittor himself and his legal representatives, the man- umission, though in prejudice of creditors, is valid, and the negroes manu- mitted are not assets for the payment of debts. Where the administrator of an executor takes out, jointly with another, letters of administration de bonis turn, on the estate of the testator, he does not ex- clusively represent both estates ; and, consequently, there can be no trans- fer, by operation of law, of the property in his hands, as administrator, to him as administrator de bonis non. [Joseph G. Harrison, deceased, by his will, dated 2d Novem- ber, 1844, devised to his wife, Matilda B. Harrison, eighty acres of land ; and devised, that his executor should sell the rest of his real estate, and pay to his wife one-third of the bal- ance of the proceeds which might remain after the payment of his debts. He also devised to his niece, Isabella Thomas, two thousand dollars, without interest, to be paid out of the pro- ceeds of the sale of his real estate ; and the balance of the money arising from said sale, he gave to his nephew, Thomas L. Simmons. The testator, by his will, also manumitted some of his slaves immediately, and to the others he gave the privi- lege, after serving out a term of years, of emigrating to Africa. Such proceedings were had in the above cases consolidated, that a sale of the real estate was made by Wood, the executor, 298 HIGH COURT OF CHANCERY. (who was appointed trustee for that purpose,) and ratified by the court ; and certain questions having arisen relative to the legacies bequeathed by the testator, the nature of which will appear from the Chancellor's opinion, the case was submitted to him upon written arguments. And at this term, he delivered his opinion as follows :] THE CHANCELLOR: Wood, the executor, in his answer to the bill filed by Thomas, suggests a doubt, whether the latter is entitled, as surviving husband, to the two thousand dollars, which his deceased wife, Isabella Thomas, was to have received out of the proceeds of the real estate which was to have been sold by the executor, she having died before the sale was made ; and supposed that the same may now belong to her brother and sister, she (the wife) having died without issue. And this is the first question to be considered. The brother and sister in their answers do not set up any claim to this money, but my opinion in regard to it is not placed upon this ground. The testator has directed that his land should be sold by his executor, and out of the proceeds thereof, Isabella, the wife of Thomas, should be paid the sum of two thousand dollars. This provision in the will converted the land, in the view of a court of equity, into money, and the surviving husband has the sanae title to demand the legacy bequeathed his wife as if it had been payable out of the personal estate of the testator. The Court of Appeals in the case of Hurtt vs. Fisher, I Har. 8f Gill, 88, recognise in the most explicit terms the rule, that lands devised to be sold are turned into money, and considered in equity as personal estate. In that case to be sure, in which the surviving husband (as here) was seeking to recover a legacy which his wife was entitled to, out of the proceeds of the real estate directed to be sold the wife survived until after the sale was made ; which the court said removed all doubt of his right to recover; but it appears to me very obvious from the manner in which the rule of law is asserted, that the result would have been the same if the wife had died prior to the sale. In the THOMAS VS. WOOD. 299 eye of a court of equity, the will of the testator had converted the real into personal estate, and the actual conversion by a sale could not be necessary to give validity to rights founded upon the equitable principle. That principal alone carries with it all the consequences upon the rights of the parties which would result from an actual sale ; and, therefore, the circum- stance that the sale had actually taken place in the lifetime of the wife, in the case of Hurtt and Fisher, could not be neces- sary to establish the title of the surviving husband. In the case of Leadenham vs. Nicholson, 1 H . fy G., 267, the learned judge who delivered the opinion of the court, re-assert- ed the principle that land directed to be sold and converted into money, will, before a sale, be considered as money, and pass as such. My opinion, therefore, is, without multiplying authorities upon a point which seems very clearly settled, that Samuel W. Thomas, the surviving husband of Isabella, is entitled to re- ceive the legacy of two thousand dollars bequeathed his wife. The second question has reference to the right of the testa- tor's wife, Matilda B. Harrison. It appears, that seventy of the eighty acres devised her by her husband, being part of his dwelling plantation, were not his property, but the property of the Honorable Kinsey Johns, and that, by consent of all parties, those seventy acres have been, or are to be, given up to him. Mrs. Harrison, in her answer says, that she made no objection to such surrender, under the belief that she was to be fully compensated therefor, and the question is, whether she is entitled to such compensation out of the residue of the estate. She did not renounce the will, and as has been stated, is en- titled to one-third of the proceeds of the sales of the real estate after payment of debts, and to ten acres, the residue of the eighty acres devised her by the will. I am of opinion, that Mrs. Harrison, (the widow,) is not en- titled to compensation out of the residue of the estate, for the loss of this portion of the real estate devised to her by her hus- band, unless it shall turn out that the share which she will re- 300 HIGH COURT OF CHANCERY. ceive of the real estate is not equal to that portion thereof which she would be entitled to as dower. If there had been a total failure in the real devise to her, the case might be governed by different considerations, as the act of assembly requires a disposition of a part of both the real and personal estate to divest the wife of a right to both ; and such seems to have been the view taken by the court in Griffith vs. Griffith's Ex'rs, 4Har. fy McHen., 101, and Coomes vs. Clem- ents, 4 Har. fy Johns. , 480. But, as in this case, the devise of real estate to the wife was not entirely invalid or inoperative, I do not think she can, because of a failure of a part of such de- vise, claim indemnity out of the residue of the estate, to the prejudice of the other parties, unless as stated above, the share which she will now receive should be less in value than her dower. The counsel of Mrs. Harrison, after quoting the language of the 5th section of the 13th sub-chapter of the act of 1798, sup- posed that a widow, who stands by the devise made to her by her husband, is to be regarded as any other purchaser, and en- titled, if the title to the land devised fails, to be compensated therefor out of the residue of the estate of the vendor. It is true, the section referred to does say, "that a widow accepting or abiding by a devise in lieu of her legal right shall be considered as a purchaser with a fair consideration ;" but this language is qualified by the preceding words of the same section, which saves the legal rights of widows only in the cases in which "nothing shall pass by such devise." If, therefore, anything passed by the devise to the widow, and she stands by the will, it might be difficult to make out her right to compensation out of the. residue of the estate, because of a partial failure of the devise to her. In view, however, of the language of the Court of Appeals in Coomes vs. Clements, and having a just regard to the spirit of the act of assembly and the strong equity of the case, I have come to the conclusion, that if the devise to the widow is in- valid to such an extent as to make what she receives under the will, less in value than her legal share of her husband's THOMAS VS. WOOD. 301 estate, she should be recompensed out of the residue thereof, so far as to place her in the same situation as if she had re- nounced the will. When it is said that the widow, standing by the will of her husband, is to be considered as a purchaser with a fair consideration, it cannot be meant that she is so to be re- garded, whatever may be the extent of the devise to her. Be- cause, if that were so, the rights of the creditors of the husband would be entirely at his mercy. He might defeat them by de- vising his whole real estate to his wife. But the sound and just rule must be, that she is to be considered as a purchaser of the devise to the value of her share or legal right ; and such is the view of the Chief Justice in Coomes vs. Clements, and the decision of the late Chancellor in Margaret HaWs case, 1 Bland, 203. [The remaining question was, whether the pecuniary lega- cies were a charge upon the manumitted property, in case the other personal property should prove insufficient to pay both debts and legacies ? And, as to this, the Chancellor said :] It is stated, and the statement seems to be supported by the accounts of the executor passed in the Orphans Court, that the personal estate, independently of the slaves, is quite sufficient to pay the debts, and I can, therefore, see no reason why they should not receive the benefit intended to be conferred upon them by the will. The Court of Appeals in the case of Allein vs. Sharp, 7 G. # /., 96, decided that the act of 1796, ch. 67, charged the whole of the manumittor's property with the pay- ment of his debts in favor of his manumitted slaves, and that in a judicial proceeding to determine the invalidity of a deed of manumission, as being in prejudice of creditors, the negro man- umitted is entitled to the assistance of the heir at law, or the person holding the real estate, in taking an account of the amount thereof, before the insolvency of the deceased manu- mittor can be legally ascertained. But, in this case, the real estate is devised to be sold, and after the payment of debts the residue of the proceeds of sale is directed to be distributed VOL .26 302 HIGH COURT OF CHANCERY. amongst the parties mentioned in the will in certain propor- tions; and it is not now proposed to be decided, whether under such circumstances the party manumitted has a right to look to the avails of the real estate to give validity to the manumission. If it shall turn out that the personal estate itself, without the negroes manumitted, is sufficient to satisfy creditors, there can be no necessity for deciding the other question. In this case, the creditors, if any remain unpaid, are not be- fore the court, and no judgment that can be pronounced here can effect their rights. They cannot be precluded from show- ing hereafter, if such is the fact, that the estate of the testator was, without the negroes, inadequate for the payment of debts, and upon establishing such inadequacy, the proper relief would be accorded to them. But with regard to the manumittor him- self and his legal representatives, the manumission, though in prejudice of creditors, is valid, and the negroes manumitted are not assets for the payment of debts. These principles are also decided in Allein vs. Sharp, and would entitle the negroes, in this case, to their freedom, as against the executor of the testator. Before, however, a final disposition is made of this question, the case will be sent to the Auditor, that the necessary accounts may be taken to as- certain if the debts are paid, or if there are assets to pay them. [Exceptions were taken to the report of the Auditor, and an agreement was signed by counsel, that the case should go back to the Auditor, for the purpose of making such corrections of his accounts as may be required by the admission of parties, and by certain accounts and proofs, filed in the cause since the date of the report, and such additional proofs -as may be laid before him. John Wood, the executor, appears to have passed four ac- counts in the Orphans Court, and upon his death, Robert Plum- mer, his administrator, passed a fifth and final account of the estate of the testator, Harrison. Upon the death of Wood, Plummer, his administrator, and Matilda B. Harrison, the widow of the testator, took out letters THOMAS VS. WOOD. 303 de bonis non, upon his estate, and passed an account in the Orphans Court in October, 1849. Among the exceptions to the Auditor's report are the follow- ing : 1st. "Because the Auditor has charged the administra- tors, d. b. n., of Joseph G. Harrison, in these accounts with various suras of money and property which were more properly chargeable to John Wood, the executor of Joseph G. Harrison ; and because he has stated no account showing the liability of the administrators, d. b. n., and estate of said Wood separately, as should be done." 2d. "Because in account B. large sums of money are charg- ed for the hire of negroes, on the supposition that the same were received, whereas it does appear by the administration accounts, and by them alone, the only proof of such receipts, that other, less and fewer sums was received, and these not by the persons charged therewith." 3d. "Because in account B. these exceptants are charged with higher rent, and more in amount than was received by John Wood but that no part thereof should be charged against them." 4th. "Because the value of the services of the said negroes, as charged in account B., for three years after the testator's death, belong, under his will, to the exceptant, Matilda B. Har- rison." llth. "Because, in said accounts, or some of them, the Aud- itor should have assigned to Mrs. Matilda B. Harrison, the widow, so much of the personal or real estate as would com- pensate her, for the loss she has sustained in the seventy acres of land devised to her by her husband, and afterwards given up to Dr. Johns." Upon these exceptions the Chancellor said :] The accounts settled by Wood, as the executor of Joseph G. Harrison, furnish to a considerable extent, the basis of the ac- counts of the Auditor, though they have been modified by cer- tain depositions, and other evidence introduced in the cause by the counsel for the administrators de bonis non. No account 304 HIGH COURT OF CHANCERY. appears to have been stated between the administrator of Wood, and the estate of Harrison, and as the same person does not exclusively represent both estates, and there is consequently no transfer, by operation of law, of the property in the hands of Plummer, as administrator of Wood, to Plummer and Harrison as administrators de bonis non of Harrison, it would seem proper that such account should be stated. Watkins vs. State, 2 Gill & Johns., 220. In the accounts passed in the Orphans Court, the executor is charged with various sums for the hire of servants, for rents of the real estate, and for produce made on the land ; and as these accounts are, prima facie, correct, and as there is no alle- gation in the cause, that more was received, or ought to have been received, than the sums thus charged, I do not conceive myself authorized, ex mero motu, to charge the executor with additional or greater sums upon proof, which appears to have been introduced for a different purpose. These accounts, there- fore, I think, should be assumed to be correct, unless directly impeached by allegation and proof. The fourth exception of the widow, Matilda B. Harrison, I do not think well taken. Among the provisions made by the testator for his widow, he bequeathed her his negro man Major, to serve her for three years after his decease, at the expiration of which period he was to have the privilege of going to Africa, or remaining here if the law will permit him ; and then the will says, "that all the rest of my negroes shall serve my wife, under the direction of my executor, for the interest of my estate, for the term of three years," and after that time, and as the negroes attained the ages designated by the testator, they were to have the privilege of going to Africa. There was a previous devise of real estate to the widow, and an authority given to the executor to sell the residue of the tes- tator's real estate at his discretion ; and after the payment of debts, one-third of the proceeds of this residue was likewise given to her. Two thousand dollars of these proceeds were then given to Isabella Thomas, and the balance thereof to the THOMAS VS. WOOD. 305 testator's nephew, Thomas L. Simmons ; and until the execu- tor shall make the sale of the real estate, the will declared, that "all, both real and personal, shall remain under his direc- tion, the proceeds applicable to the payment of my debts, the support of my wife and family, and to the college charges of my nephew, Thomas L. Simmons," &c. It is quite clear, I think, that the testator did not intend to give his wife the same interest in the services of the residue of his negroes, as he had given her in the negro named Major, but that he designed that these negroes, other than Major, should, for the space of three years, be employed for the benefit of his estate, for the payment of debts, for the support of the wife and family, and the education of his nephew. It appears from the accounts, that the proportion of the pro- ceeds of the real estate distributed to the widow, Mrs. Harrison, together with a portion of the devise to her not included in the seventy acres surrendered to Dr. Johns, is fully equivalent to, and in fact considerably exceeds, her dower interest in the en- tire real estate of her husband, and this being so, I am of opinion, that the eleventh exception cannot be maintained, and is in conflict with the former opinion arid order of this court. The solicitors of the parties have signed an agreement, which, among other things, provides, that the account C. distributing the proceeds of the real estate sold by the trustee, Robert Plum- mer, may be confirmed, reserving, however, to Mrs. Harrison the right of appeal from the order of confirmation. The order, therefore, will be according to this agreement, and pro forma. It appears by a paper filed on the 5th instant, that Thomas L. Simmons, the residuary devisee and legatee, has received, and now has in his possession, certain negroes and sums of money; and it is agreed that the accounts may be corrected by charg- ing the said devisee and legatee, accordingly, with correspond- ing credits to the executor, John Wood. This admission will be noticed by the Auditor in stating the accounts, now about to be ordered, but, in the meantime, there seems to be much difficulty in saying what shall be the final disposition of the property. It is thought, however, that there can be no impro- 26* 306 HIGH COURT OF CHANCERY. priety in leaving it with the residuary legatee until the final accounts are taken. It is, thereupon, ordered, this 9th day of April, 1850, that this case be, and the same is hereby, again referred to the Auditor, with directions to state such account or accounts as will con- form with the foregoing directions, from the pleadings, proofs and admissions, and such proofs as may be laid before him, and the parties are hereby authorized to take the depositions of wit- nesses before any justice of the peace, or before the Auditor, on three days' notice to the opposite party, or his or her solici- tor, such depositions to be taken and returned on or before the 10th day of June next. [No appeal was taken in this case.] AMOS A. WILLIAMS * vs. f THE SAVAGE MANUFAC- ( SEPTEMBER TERM, 1848. TURING COMPANY. ) [VACATING SETTLEMENT PARTIES TO SHIT SURCHARGING AND FALSIFYING ACCOUNTS ACT OF 1845, CH. 367 APPEAL.] TRUSTEES under a deed, one of the trusts of which was, that after satisfying the purposes of the deed, viz. the payment of the debts of the grantor, the residue of the property should be held for the use of the grantor, were also appointed his trustees under the insolvent laws ; and, acting in this dou- ble capacity, transferred certain stocks belonging to the grantor (the com- plainant) to the defendant. All his debts having been paid, and the trustees directed by a decree of this court to convey to him all the property they had not disposed of in performance of their duty as trustees in insolvency : it was HELD That the complainant was entitled to maintain a bill for the recovery of the stock from the defendant, upon the ground, that the transfer had been im- properly obtained ; and, that the trustees were not necessary parties to such suit. Where an agreement was made to settle a claim presented to the complainant, in the form of a stated account, which, without examination, was assumed to be correct, the complainant will be allowed to surcharge and falsify such WILLIAMS VS. SAVAGE MANUFACTURING CO. 307 account, to the extent of the errors specified in his bill, independently of the question of fraud, actual or constructive. The court is to take the account, as stated, and the onus probandi is upon the party having liberty to surcharge and falsify ; and he will be restricted to proof of errors specified in his bill. When the accounts upon which the settlement was based, were presented to the complainant, he was deprived of much of his mental capacity, and inca- pable of giving them that examination which was indispensable to their full comprehension. HELD That under these circumstances, it was the duty of the court, if errors were pointed out, to permit the plaintiff to surcharge and falsify the accounts, though the settlement based upon them was regarded as a family settlement, which the court will usually uphold with a strong hand. A party having elected to examine witnesses upon their voir dire, is precluded from resorting to any other mode to show their interest in the event of the suit. An appeal and a bond to prosecute the appeal, will not, under the act of 1845, ch. 367, independently of the direction of the court, delay the execution of the order appealed from. Whether such direction shall or shall not be given, is referred by the legisla- ture to the sound discretion of the court, upon a view of all the circumstances of the case. [The facts of this case are fully stated in the Chancellor's opinion :] THE CHANCELLOR: This cause, which has been argued with an ability every way worthy the eminent counsel engaged in it, has received the most deliberate consideration of the court. It is justly regarded as one of much importance, not only with reference to the influ- ence which the decision may have upon the pecuniary interests of the parties ; but on account of the questions which have been discussed so elaborately, and, which derive additional importance from the relations which the parties really concerned in the controversy bear to each other. It appears from the pleadings and proofs, that by an act passed by the legislature of this state, at December session, 1821, ch. 201, the defendant was incorporated by the name of the Savage Manufacturing Company, for the purpose of man- ufacturing and vending of cotton goods, and the carrying on of any other branches of manufacture in their discretion ; for which 308 HIGH COURT OF CHANCERY. purpose they were authorized to purchase and hold land in fee simple or otherwise, not exceeding three hundred acres at a time, and to erect thereon, all necessary buildings, with a capital of one hundred and fifty thousand dollars, divided into fifteen hun- dred shares, of one hundred dollars each. That the company organized soon after the date of the char- ter, and went into operation ; the complainant at or about that time, becoming their agent at its manufacturing establishment, on the little Patuxent River, in Anne Arundel County that this agency was continued from that time, until the 6th of July, 1839, when he tendered his resignation, which was accepted, and his brother, Cumberland D. Williams, was appointed in his stead. The bill alleges, that in June, 1839, the complainant became afflicted with sickness, which entirely disqualified him from at- tending to business of any kind, and that he remained in this condition until the fall of 1844, when he was restored to health in mind and body that of the capital stock of the company, which amounted to $108,100, the sum of $37,632 32 stood on its books in the name of the complainant, and that his property, including this stock, at the commencement of his sickness, was probably worth over and above all his just debts, about $35,000 that in this condition of his mental and bodily health, his brothers, George Williams, Cumberland D. Williams, and Na- thaniel D. Williams, addressed his, the complainant's son-in- law, a letter upon the subject of making a will, to prevent his property from passing out of his family, but being disappointed in their views in this respect, by his refusal or neglect to com- ply with their suggestions, they, the brothers, determined to destroy that which they could not obtain, and reduced the com- plainant to poverty, by the means and instrumentalities which the bill then proceeds to point out these consisted, as set forth in the bill, in instigating his creditors to sue him, and in a suit which the Savage Manufacturing Company instituted against him for an alleged indebtedness ; the company at that time being altogether controlled by his brother, George and Nathaniel that in consequence of these proceedings, thus instigated by WILLIAMS VS. SAVAGE MANUFACTURING CO. 309 his said brothers, and at the suggestion of one of them, he, in April, 1843, petitioned for the benefit of the insolvent laws, and obtained his discharge in August, of the same year that from that time until early in the year, 1844, he remained undisturbed by his creditors, but that, in the year 1844, Nathaniel Williams, who had promoted the suit of the company, and which had been referred to counsel, began to press the settlement of that claim and by the contrivances which the bill details, succeeded in obtaining in satisfaction of this pretended claim a transfer of the stock of the complainant in the company to the amount of $9632 32. That the settlement, by which a transfer of this stock was obtained, was founded upon accounts, one of which was pre- pared by Cumberland D. Williams, in concert with his brothers, Nathaniel and George, and the other by a clerk of said George, who prepared the same under the direction of his employer. The bill charges, that these accounts were false in many particulars, and known to the framers thereof to be such, and are, therefore, fraudulent in fact, and in contemplation of this court, and then proceeds to surcharge and falsify the same in some of the most important items. The complainant further alleges, that when restored to health, bodily and mentally, in the fall of 1844, he found himself, who had fallen sick worth about $35,000, an insolvent debtor, and, that the active and prominent agents in reducing him to this condition, were his brothers, George and Nathaniel, who, during his state of imbecility, had put the machinery in opera- tion to accomplish his ruin. That after the institution of the first suit against him, to wit, on the 15th of September, 1840, the complainant, at the suggestion of his brother, Nathaniel Williams, executed a deed of trust of all his property to Charles F. Mayer, Esq., and his (the complainant's) son-in-law, George W. Burnap, and, that the provisions of that deed, which will be noticed hereafter, were advised by the said Nathaniel. That, the claim set up by the company, against the com- plainant, and, which had been exhibited by his said brother, 310 HIGH COURT OF CHANCERY. was stated to be $7685 98, to which his said brother, acting for the company, had undertaken, upon the pretence, that he, the complainant, had, in some respect, violated his duty to- wards said company, of his own motion, without foundation, proof, or authority, to mulct him in the sum of near $2000 and that swelled the amount which it was pretended he owed the company, to the sum of $9632 32 that influenced by the representations made him by the said Nathaniel, and incapable of the mental effort necessary to look into his own concerns, the complainant united with his trustees, in transferring to the company, that amount of his stock on the 20th of July, 1844, in settlement of said pretended claim against him, which, by the merger of so much of the stock, reduced the capital of the company by that amount. The bill, then, after particularly pointing out the alleged er- rors in the accounts of the company against the complainant, and averring, that upon a true and fair settlement, there would be found a balance due him, alleges, that his said brothers, George and Nathaniel, well knew that said accounts had been improperly adjusted, and that he, the complainant, was induced by solicitations and menaces, which in his enfeebled state of health he was incapable of resisting, to transfer stock in said company at the par value thereof, in satisfaction of said pre- tended balance ; and the prayer is, that said settled account may be opened, and that the complainant may be permitted to sur- charge and falsify the same, as well in the particulars men- tioned as in all others which may be made apparent in the pro- gress of the cause that an account may be taken, and that if anything shall be found due from the company, they may be required to pay the same and that if the complainant shall be found to be indebted to the defendant, the former, upon the payment of the same, shall be declared entitled to a re-transfer of his stock, and for general relief. These seem to be the material allegations of the bill, filed with which, as exhibits, are the accounts upon which the settle- ment is charged to have been based, with another exhibit pre- pared according to the complainant's view, by which one of WILLIAMS VS. SAVAGE MANUFACTURING CO. 31 1 the accounts, upon which the settlement is alleged to have been founded, is so essentially altered, that instead of showing a balance due from the complainant to the company of $5302 55, there seems to be due from the latter to the former, the sum of $3274 34. It appeared also, that, upon the application of the complain- ant for the benefit of the insolvent laws in 1843, Messrs. Mayer and Burnap, the trustees named in the conventional deed of 1840, were appointed and qualified as his permanent trustees ; and it also appeared, and was so charged, that, prior to the filing of the bill in this case, the complainant filed his bill against the said parties as his permanent trustees, alleging that all his debts were paid, and praying that his said trustees, might be directed to release and reconvey to him all the prop- erty vested in them, by deed or operation of law, and his ap- plication for the benefit of the insolvent laws, except such parts f of said property as may have been conveyed or transferred by said trustees in the execution of their office. And the Chan- cellor, on the llth of December, 1845, passed his decree, by which, the said Mayer and Burnap, as permanent trustees, were directed to convey to the complainant, all the property of every description, which had not been disposed of or otherwise affected by said trustees, in the performance of their duty as trustees under said insolvent laws. The answer of the company denied, in very explicit terms, the various charges of fraud and imposition alleged in the bill, and gave a full detail and vindication of the several items in the accounts which had been assailed ; giving the detail and ex- planation, however, under a protest that it was not necessary for the purposes of the defence, and only because the answer, if such explanations were omitted, might, in that respect, be deemed short the ground taken in the answer, being, "that the agreement was not based on any audit or statement of ac- counts, between the complainant and respondent, or, in any asserted ascertainment of claims against the complainant ; it being intended to be, and being in fact, a compromise of all disputes as appears upon the face of the agreement. 312 HIGH COURT OF CHANCERY. Beside expressly denying the charges of fraud, defending the items of claim impeached by the bill, and placing the defence of the settlement, upon the ground of compromise ; the answer presents various other objections to the relief sought by the bill, or to any relief being granted this plaintiff, which will be briefly noticed hereafter. The case of Farnamvs. Brooks, 9 Pick., 212, has been very much pressed by the counsel on both sides, as establishing principles important to the views which each has attempted to maintain. That appears to have been the case of a compromise of unsettled accounts between the parties, by which a smaller sum was received in satisfaction of the debt than the sum sub- sequently ascertained to be due ; and yet, although the court decided, expressly, that the charge of fraud was not made out, they permitted the plaintiff to surcharge and falsify the account on which the settlement was made. The sum agreed to be re- ceived in satisfaction in that case, was $60,000 ; and that amount was fixed upon, upon a statement of the account, as prepared by the defendant, by which it appeared, that the sum actually due, was $64,000, on payment of which, the intestate of the plaintiff gave to the defendant a receipt in full, and a transfer of all his interest in the concern in which they were partners, in relation to the business of which the accounts were stated. It subsequently appeared, upon a more careful exam- ination of the account, that the sum really due was $68,000, growing out of errors, in omitting sums which ought to have been credited, and charging others which ought not to have been debited, and upon this ground, and, notwithstanding, the court expressly declared, "that these errors furnished no ground of suspicion of unfairness or fraud," the plaintiff was permitted to surcharge and falsify the account on which the settlement was made, although nearly twenty years had elapsed from the date of the settlement to the filing of the bill. That case, in many of its features, will be found to bear a close resemblance to the present ; and, I am much mistaken, if the doctrines established by it with so much ability and learn- ing, will not justify the order which will be passed in this case. WILLIAMS VS. SAVAGE MANUFACTURING CO. 313 My opinion, therefore, upon this part of the case is, that though the settlement will not be set aside as fraudulent, the plaintiff should be allowed to surcharge and falsify the account upon which, as I think, it was made ; and the next question is, to what extent has he succeeded in proving the errors specified in his bill, for to these he must be restricted. 2 Daniels' Ch. Pr., 765. The court is to take the account as it is stated, and the onus probandi is upon the party having liberty to surcharge and fals- ify. If he can show an omission, he may surcharge ; and if a wrong charge is made against him in the account, it will be stricken out, which is a falsification. To what extent, then, has the plaintiff succeeded in pointing out errors of either description in the account, is the question. It is first alleged, that in the account between the Savage Rail Road Company and the defendant, which is one of the elements of the account 1. 1., upon which the statement was made, the defendant was prejudiced by allowing him dividends only on the amount of the stock held by him in the rail road company, which was $12,000, instead of on the whole capital of $15,000. My opinion upon this is, that as that account was stated, the whole dividends should have been credited. It is an account between the two companies, and not between the complainant, as a stockholder in the rail road company, and the defendant. The road is charged with all the advances made to it by the defendant, and not with such proportion thereof as would correspond with the complainant's interest in the road. Surely, if the complainant is considered the sole proprietor of the road, so far as to charge him with all advances to it, he should be regarded in the same light with reference to credits. I am not satisfied, however, that the defendant continued to use the road to the 1st of July, 1843, as alleged in the bill. The answer expressly denies it ; and the proof offered in oppo- sition to the answer I do not deem sufficient. The account, therefore, in this respect will stand, unless further and fuller proof shall be introduced. The charge of ten per cent, on the cash balances cannot be VOL i. 27 314 HIGH COURT OF CHANCERY. supported. It by no means follows, that because tolls are paid at the rate of ten per cent, on the capital stock, that, therefore, it would be just to charge the road ten per cent, on cash bal- ances due from it. Out of the tolls the expenses of the road are to be paid ; and it may very well happen, that when they are defrayed, much less than six per cent, would remain for the stockholders. I do not think the charge in the same account of $1,350, can be supported. That sum appears to me, from the evidence, to have been placed in the hands of the complainant, as the agent of Patrick T. Jackson, mentioned in the receipt of C. D. Wil- liams, of the 19th of September, 1828. It also appears to me, that the sum of $1,350, charged to the complainant in the account marked I. I., is identical with the sum charged in the rail road account, and is thus twice charged, when, as I think, from the proof now before me, it should not have been charged at all. With regard to the sum of $2,353 33, charged to the com- plainant in the account I. I., being for money, the property of the defendant, paid by the complainant,, in the purchase of land from Mr. Herbert and Mr. Worthington, the plaintiff has not succeeded in satisfying me that the charge is erroneous. It is very clear, I think, that even if the charter of the Sav- age Manufacturing Company authorized them to purchase and hold these lands, that the mode in which the complainant, ac- cording to his own showing, procured the assent of the stock- holders, conferred upon him no power thus to use the corpo- rate funds. And, moreover, when the complainant petitioned for the benefit of the insolvent laws, in the spring of 1843, he returned Mr. Worthington, as one of his creditors, for lands purchased. Now, although this was at a period prior to the full restoration of the complainant to health, in mind and body, and although I am pursuaded, that his mind was at that time enfeebled, and, perhaps, unfitted to investigate and understand accounts of a complicated nature ; yet, I am far from thinking he could not comprehend the simple proposition, whether this debt due Mr. Worthington, was due from him or from the Sav- age Factory. WILLIAMS VS. SAVAGE MANUFACTURING CO. 315 Something was said in the argument about the land which was purchased from Herbert, having been conveyed to Mr. Lansdale, and one of the defendant's exhibits does show, that on the 28th of November, 1843, a parcel of land was conveyed to Lansdale by Herbert and wife, for the sum of $4,755 25. It does not appear, however, that the land mentioned in this conveyance is the same with that on account of which the money charged in the account was paid by the complainant. And, moreover, the money charged in the account is charged as of the 1st of June, 1839, four years and more before the deed to Lansdale ; and, I do not understand from the bill, that the objection to the charge is put upon the ground, that the pur- chase was made by, and the conveyance made to, Lansdale. The ground taken in the bill is, that these lands were purchased "with the concurrence and under the direction of the stock- holders owning more than a major part of all the stock of the company." As to the sum of $590, for which the complainant claims a credit, it seems to me, some further explanations should be of- fered, before it is allowed as such. I do not think the complainant can be charged with any part of the money expended in erecting the furnace. It was erect- ed on the grounds of the defendant; and there is such a mass of proof going to show that it was treated and considered as the property of the company, by its agents and shareholders, that I do not see how it can be resisted. It would occupy much time and space to refer particularly to this evidence ; and I, therefore, only advert to the depositions of Messrs. Gordon, Todhunter and Patterson, and to the complainant's exhibit, be- ing a statement of the expenditures of the Savage Manufactur- ing Company, in which the cost of this furnace is put down at $8000, as conclusive to show that this expenditure was regard- ed as a company expenditure, and the furnace as company property. As respects the alleged credits to which the complainant claims to be entitled, and for the omission to give which he seeks to surcharge the account, I am of opinion, that looking 316 HIGH COURT OF CHANCERY. to'the evidence of Mr. Capron and Mr. Lansdale upon this point, that the complainant is entitled to be credited at the rate of $300 per annum, for entertaining the proprietors and others at the factory, during the period he lived there as its agent, or rather, from the 1st of July, 1832, to July, 1839. The agree- ment under date the 16th of October, 1832, says, expressly, that he shall be indemnified for this expense, and the witness referred to proves, that $300 per annum would be no more than a reasonable allowance therefor. The complainant's salary, however, cannot be credited to a period subsequent to the 6th of July, 1839, when he resigned, as shown by a letter of that date; and, I can see no ground upon which he can be allowed a higher rate of compensation, as agent, than $1000 a year that being the sum named in the agreement of October, 1822, signed by the complainant and the proprietors. These are all the items of surcharge and falsification speci- fied in the pleadings, and to these the parties must be confined. The case will, therefore, go to the Auditor, with directions to state an account accordingly, preparatory to a final decree. The settlement itself must stand, because I do not think the charge of fraud is established, and such a decree will be passed, when the account comes to be stated, as the justice of the case may require. I do not think the exceptions to the evidence of Benjamin Williams, Joseph B. Williams and George H. Williams have been sustained, assuming them to be legatees under the will of Mrs. Weld. The plaintiff examined them upon the voir dire, and they denied any interest in the event of the suit ; and hav- ing elected to take this course, I think he is precluded from re- sorting to any other mode to show their interest. This doc- trine, I think, is established by the passages referred to in 1 Greenleafon Evidence ; and also by authorities collected in the Notes to 1 Starkie on Evidence, page 124. The excep- tions to the evidence of George Williams and Nathaniel Wil- liams, I do not undertand to be much insisted on, and certain- ly, I can see no ground upon which they can be excluded. WILLIAMS VS. SAVAGE MANUFACTURING CO. 317 I do not find it necessary to go in detail over the exceptions which the counsel in this case, on each side, have placed upon the record, to much of the evidence which has been offered upon either side ; and I deem it enough to say, that my con- clusions upon the whole case, are founded upon proof which I think admissible and competent, and that I have very carefully read and examined it all. The settlement, which it was the leading object of this bill to vacate, bears date on the 1st of June, 1844. It was signed by a number of shareholders in the Savage Manufacturing Company, and by the complainant, and Mayer and Burnap, his trustees. The language of the agreement is : that the proprietors of the Savage Manufacturing Company, on the one part, and Amos A. Williams and the trustees of his estate, on the other part, do mutually agree to settle and adjust all claims and de- mands between them, on the following terms, to wit : It then provides for a release of him and his estate from all claims and demands of every kind, owing by him or his estate to the com- pany, who engages to pay a debt due from him to Richard H. Waters ; and the said complainant and his trustees, besides other stipulations on their part, agree to assign and transfer unto the Savage Manufacturing Company, by a transfer on their books, bearing even date with these presents, stock in said company representing $9,632 32, and in consideration of the premises, the parties agree that all accounts between them, from the beginning of the world unto this day, be deemed finally settled, and all claims and demands mutually released and dis- charged. This agreement, though dated on the 1st of June, 1844, is said not to have been consummated by the signatures of the requisite number of shareholders, until the 20th of July follow- ing, on which day Amos A. Williams, and Burnap and Mayer, in their capacity of trustees, under the conventional deed of the complainant, and as his permanent trustees in insolvency, trans- ferred to the defendant, conformably with the preceding agree- ment, on the books of the company, shares and an interest rep- 27* 318 HIGH COURT OF CHANCERY. resenting the sum of $9,632 32, and on the same day, made similar transfers to Martha Weld and Nancy W. Burnap, to the former, to the amount of $2,100, at par, and to the latter, (who was the wife of Burnap, one of the trustees,) to the amount of $14,000, at par. The deed which was executed by the complainant to Messrs. Mayer and Burnap, on the 15th of September, 1840, was, among others, upon the trust that the trustees should be author- ized "to adjust and settle with the corporation called the Sav- age Manufacturing Company, all the accounts between said Amos and said corporation ; and in the event of any amount upon such adjustment appearing to be due by said Amos to said corporation, said trustees may agree with said corporation for the satisfaction of said liability, by surrender or transfer to said corporation of such number of shares of said Amos of said cap- ital stock, and such diminution or abatement of his interest in the said stock, or the property of the said corporation, as to said trustees may appear proper." And there was a further trust providing for the settlement of the claims of those to whom the said Amos might be indebted, on account of the purchases of lands, by conveying the same to the parties to whom the money might be due. Apart from the merits of the case, as disclosed by the plead- ings and proofs, several questions of law have been discussed r and particularly it is insisted by the defendant, that whatever may be thought of the transaction in question, and though the settlement assailed by the bill might be obnoxious to objection, if impeached by the trustees, Mayer and Burnap, that still, upon this bill, and upon the plaintiff's own showing, he can have no relief, because he has failed to show a title in himself to the stock, a re-transfer of which is sought. The ground of this objection is, that the whole property of the complainant having been vested in the trustees, Mayer and Burnap, by the conven- tional deed, and by operation of the insolvent laws, and it ap- pearing by the bill and the decree of the Chancellor, of Decem- ber, 1845, that the re-conveyance ordered by that decree, did not extend to property which the trustees had parted with, in WILLIAMS VS. SAVAGE MANUFACTURING CO. 319 the execution of their duty as such trustees in insolvency, and as the trustees had, in that capacity, transferred this stock to the defendant, it follows, that the plaintiff, by his own show- ing, has no title, and this objection to the bill is taken by ex- ception. There is apparently much force in the objection, but, in my opinion, it is not fatal to the plaintiff's case, if in other respects he has established his title to the aid of the court. One of the trusts of the deed of September, 1840, is, that after satisfying the purposes of the deed, which were the pay- ment of the creditors of the grantor, the residue of the property, or its proceeds, was to be held for the use of the said grantor, his executors, &c.; and it very distinctly appears by the bill in this case, and by the proceedings in the case which led to the decree of December, 1845, and by that decree, that all the debts of the grantor have been paid and satisfied, and if this state- ment be true, it follows, of course, that the title to this stock in equity should be in the complainant, if he has succeeded in showing that it was improperly transferred to the defendant. It is said, however, that the right to recover,'if any such right exists, is in Mayer and Burnap, the trustees, and that they are the parties who should have demanded the re-transfer, the legal title being alleged to be in them, unless it has been transferred to the defendant. But the legal title which had been in these trustees was unquestionably vested in the defendant, by the transfer of 1844 ; that transfer was made by those gentlemen in the double capacity of conventional trustees, and trustees in insolvency, and, therefore, if no relief can be had by a re-trans- fer, except upon the footing of a legal title, the trustees, Mayer and Burnap are as powerless as the present complainant. My opinion upon this question is, that as it is charged in the bill that the purposes of the trust have been accomplished by the payment of the debts of the complainant, and as upon that event he was entitled to a re-conveyance from his trustees in insol- vency, which has been decreed him, and as under the voluntary deed, the residue after the payment of his debts, was to be held in trust for him, he is now entitled to maintain this bill against 320 HIGH COURT OF CHANCERY. the present defendant, to whom the trustees transferred the legal title to the property in dispute. I can see no sufficient reason why the court should first de- cree a transfer of this stock to the trustees, that they might then immediately afterward, be compelled to transfer it to the com- plainant. The legal title is in the defendant, and if that legal title has been improperly obtained, the defendant should be re- quired to convey at once, and without circuity, to the party ul- timately entitled. Nor, do I think, that the trustees, Mayer and Burnap, were necessary parties, as is also insisted by the defendant. They have, as I think, no interest in the suit, and against them, if before the court, no decree could be had, and consequently they cannot be considered necessary parties. Story's Eg. PL, sec., 231 ; Smith vs. Snow et al., 3; Mad. Rep., 13. Considering, then, that the plaintiff has a standing in court, to ask for relief in respect to the transactions spoken of in the bill, if he has shown himself entitled upon the merits, it be- comes necessary to examine the case upon its merits, and this will be done as briefly as possible. The bill, as we have seen, prays that the settlement of June, 1844, may be opened, upon the ground of fraud, and that the complainant may be permitted to surcharge and falsify the ac- count in the particulars mentioned, and in such others as may become apparent in the progress of the cause. The allegation is, that the stated account was fraudulent in fact, and in contemplation of law, and known to the framers thereof to be such. In the argument, however, the Chancellor understood that the charge of fraud in fact was, if not abandoned, at least not pressed, and the aid of the court was asked upon the ground that this settlement, under the peculiar circumstances attending it, though not characterized by fraud in fact, that is, by a pre- conceived and concerted design to defraud the complainant, was yet in contemplation of a court of equity, constructively fraudulent, and equally invalid as if contaminated with pre- WILLIAMS VS. SAVAGE MANUFACTURING- CO. 321 meditated fraud, or at any rate the errors to the prejudice of the plaintiff, charged to exist in the account upon which the settle- ment is alleged to have been based, entitled the plaintiff to per- mission to surcharge and falsify it. With regard to the charge of fraud in fact, which charge in the bill is especially directed against Nathaniel Williams and George Williams, I am altogether convinced that it is destitute of foundation. So far as George Williams is concerned, it is perfectly obvious, if any confidence is to be placed in human testimony, that he was, from the beginning, and continually to the conclusion of this whole transaction, most vehemently op- posed to the settlement the record is so full of evidence on this point, that it is impossible to entertain a doubt upon the subject. With respect to Nathaniel Williams, though it was chiefly through his agency that the settlement was effected, I do not think a reasonable suspicion can be entertained, but that he honestly believed, whatever the fact may turn out to be, that his brother, the complainant, was indebted to the defendant in at least the sum agreed upon. The bill charges, that when the brothers, George, Cumberland and Nathaniel, were frustrated in their design to secure to themselves the property of the com- plainant, by procuring him to execute a will, they formed the design to destroy that which they could not obtain, and that having first instigated his creditors to sue him, Nathaniel sug- gested that he should convey his property in trust to Messrs. Mayer and Burnap. Now, when it is recollected, that Mr. Mayer was the counsel of the complainant, and Mr. Burnap his son-in-law, it appears to me that the advice that they should be appointed his trustees, infers any thing else than a design to take advantage of him. But, without going into details, which would be tedious and unprofitable, I content myself with say- ing, that upon a careful examination of all the evidence, I do not see a single circumstance upon which, fairly construed, the charge of fraud against Nathaniel Williams can be supported. I, therefore, dismiss the charge of fraud in fact, which, as it is never to be presumed in any case, certainly should not, in a 322 HIGH COURT OF CHANCE llf. case like this, be inferred upon any but the strongest evidence. I do not, however, place my conviction of its non-existence in this case upon the ground that as between parties, bearing the relations to each other which these parties do, more stringent evidence will be required to establish fraud than in an ordinary case, but upon the higher ground, that however Mr. Williams may have been mistaken as to the actual state of the accounts between his brother and the company, nothing was farther from his intention, as I am satisfied, than to impose upon him to the extent of a dollar. It is quite obvious that he carried through the settlement in defiance of the strong resistance of those who had better opportunities than himself of knowing how the ac- counts stood, and that at one period, the immediate family of the complainant, so far from complaining of him for his efforts to effectuate the settlement, were dissatisfied with the parties who made opposition to it. It is next to be considered whether this settlement was made under such circumstances of error and mistake, as to render it constructively fraudulent, and this question is supposed to de- pend upon whether it was based upon a statement of accounts, or, according to the ground taken in the answer, it was a com- promise of conflicting and unascertained claims, preferred by the defendant against the plaintiff. If the latter, that is, if it was a compromise of claims of this description, it is insisted it can only be impeached upon the ground of actual fraud . Upon a very careful investigation of the evidence, my mind is brought to the conclusion, that the accounts procured by Na- thaniel Williams from George Williams, were the basis upon which the' settlement was made that Mr. Mayer, and Mr. Mayhew, who was consulted as a friend, assented to the terms proposed, upon the assumption that these accounts were cor- rect, and that, but for that assumption, they would not have advised the settlement. I do not, therefore, regard the settle- ment as a mere compromise, but as an agreement to settle, in the mode proposed, a claim which was presented in the form of a stated account, which, without examination, was assumed to be correct. This is certainly true with regard to the account WILLIAMS VS. SAVAGE MANUFACTURING CO. 323 marked J. J., to which, as the evidence shows, a portion of the claim called the furnace account was added, to make up the amount at which the whole claim was settled. Now, I cannot see how it can be said, at least that the ac- count marked J. J. did not furnish the basis of the settlement and if this be so, then it follows, that independently of the ques- tion of fraud, actual or constructive, the plaintiff will be allowed to surcharge and falsify it, to the extent of the errors specified in his bill. 1 Story 1 s Eq. sec., 523 ; 1 Daniell's Ch. Pr., 761, 765; Barrow vs. Rhinelander, 1 Johns. Ch. Rep., 550. There is a circumstance connected with this case, which, though it does not, in my judgment, invalidate the whole settle- ment, and induce me to set it aside altogether, is yet, I think, entitled to great weight upon the question of allowing the plain- tiff to surcharge and falsify the account. There seems to me no doubt that the plaintiff, for a considerable period, extending, probably, from the year 1839, to the fall of 1844, was, though not perhaps actually non compos mentis, deprived of much of the mental capacity which he had before possessed. No man, I think, can read this record, and not come to this conclusion, and I cannot but persuade myself, that in his condition, when these accounts were presented to him, he was incapable of giv- ing them that examination which was indispensable to their full comprehension. His mind had lost much of its vigor, and pain- fully sympathised with the infirmity to which his physical na- ture was a prey. The complainant then, as I think, was una- ble to understand these accounts, and the trustees, and the friend called in, did not examine them all assuming their cor- rectness as the basis of the agreement. Now, I feel a strong conviction, under these circumstances, that even regarding this settlement as a family arrangement, which the court will usually uphold with a strong hand, that still it is its duty, if errors are pointed out, to permit the plain- tiff to surcharge and falsify the account on which the settle- ment was made. This course seems to me to be in conformity with the doctrine of Mr. Justice Story, in the 1st volume of his Equity Jurisprudence, sections 131, 132. 324 HIGH COURT OF CHANCERY. [The defendant, against whom the order was passed on the 22d of November last, in 'conformity with the views expressed by the Chancellor in his opinion of that date, appealed, and filed an appeal bond in form and penalty, and with condition and sureties approved by the court. The order appealed from, however, being within the provisions of the act of 1845, the appeal bond alone does not operate as a supersedeas, and the application now made, is, that the court by special order, stay the execution of the order appealed from. Upon this application the Chancellor says :] This is an application founded upon the act of 1845, chap. 367, which gives the right of appeal from the decrees and orders of the equity courts of this state in a class of cases in which the right did not exist before. The right is extended to decrees or orders, determining a question of right between the parties, and directing an account to be stated on the principles of the determination, with a pro- viso, that appeals taken under the provisions of the act, shall not delay the execution of the decree or order, unless the court passing the same shall so direct ; nor unless the party prosecut- ing the appeal shall give an approved appeal bond. The parties have been heard by counsel upon this applica- cation, and the court will, as briefly as possible, state the reasons of the conclusions to which a careful consideration of the circumstances of the case has brought it. This is understood to be the first application of the kind, for though several appeals have been prosecuted under the act of assembly, and the proceedings under the decrees and orders appealed from, have been suspended until decisions were had in the appellate court, this appears to have been the result of agreement, the power of the court not having been specially in- voked in any instance so far as I am informed. In England, the rule appears to be established^that an order for a re-hearing, or an appeal, will not stop proceedings under the decree or order appealed from, without a special order. 3 Daniell's Pr., 1611. WILLIAMS VS. SAVAGE MANUFACTURING CO. 325 The reverse, however, appears to be the case in New York, where an appeal does, in the first instance, stay proceedings on the point appealed from, and, if the party obtaining the decree wishes to proceed, notwithstanding the appeal, he must make application to the Chancellor for liberty to do so. Green vs. Winter, 1 Johns. Ch. Rep., 80, 81. It does not appear to me, however, to be material to investi- gate very minutely, the rule in England or elsewhere, as there can be no doubt, than an appeal and bond to prosecute the appeal, under the act of assembly in question, will not, inde- pendently of the order of the court, delay the execution of the order or decree appealed from. If the execution of the decree or order is to be suspended, it must be by force of the special direction of the court given for that purpose. Whether such direction shall or shall not be given, is referred by the legisla- ture to the sound discretion of the court, upon a view of all the circumstances of the case. If the court, upon consideration of the circumstances, shall think that greater inconvenience and injury will result to the appellant from proceeding to execute the order, pending the appeal, than would be sustained by the opposite party by delaying it, then the execution should be suspended, if otherwise, the execution should not be delayed. The court, in this case, has no reason to think, that the ap peal has been taken for the mere purpose of delay and vexa- tion. The case is one of much importance in several aspects, the questions interesting, and some of them novel, and the order of the court appealed from, vital to at least some of the most material points involved in the cause, and upon which the defence was placed. It was the undoubted right of the defendant, to appeal from this order, and this court certainly feels no inclination to abridge the right, or so to proceed to execute its order, that irreparable mischief shall be inflicted, if the order upon the appeal shall be pronounced erroneous. The order appealed from, in this case, not only decides, that the settlement of 1844, was founded upon the basis of accounts between the parties, contrary to the defence taken in the VOL. i28 326 HIGH COURT OF CHANCERY. answer, but it gives to the complainant, leave to surcharge and falsify the account in certain particulars, and decides defini- tively certain points in difference, which must change, essen- tially, the state of accounts between the parties ; leaving others open for further evidence. It is said by the plaintiff, that an account stated upon the principles of the order in question, will entirely shift the balance, and show the plaintiff to be a creditor, instead of a debtor, as he appeared to be, to a large amount, by the account upon which the settlement was made. It is not, then, an order, simply determining a question of right between the parties, and directing an account generally, as in the case of Forbes vs. Forbes, referred to in the argu- ment ; but, it is an order, determining to a considerable extent the elements of which the account shall be composed. It de- cides, that the complainant, in the settlement complained of in the bill, was charged with several sums of money erroneously, which of course are to be struck from the account, and, that he should be credited with other sums which were not credited. Upon some of these items the decision is final, as much so as if the Auditor had stated an account in conformity with the order, and his account had been ratified. This order, therefore, differs widely from an order simply rescinding a settlement between parties, and directing an ac- count upon certain legal principles declared by the court, leav- ing the adjudication of every thing else open for further con- sideration. Upon appeal from an order of this latter character, the re- viewing court, in any event, whether they reverse or affirm the order, unless, indeed, they dismiss the bill, must remand the cause to this court, when the whole question of the account, should an account be ordered, would be open to the same ex- tent as before the appeal, and the almost inevitable result would be a second appeal after the account should be taken and affirmed. This, however, is not likely to be the case here, as upon reviewing the order of this court, the Court of Appeals will have before them the materials for putting an end to the controversy. WILLIAMS VS. SAVAGE MANUFACTURING CO. 327 There seems to me, therefore, to be much more propriety in abstaining from proceeding with the execution of such an order as this, than an order which though it may determine a ques- tion of right between the parties, as by vacating a deed or settlement, leaves the whole question of the account open for further directions. There are, as was said by Chancellor Kent, in Green vs. Winter, difficulties in laying down a general rule in such cases. To proceed as of course in a cause pending an appeal, might lead to a great deal of useless labor and expense to the parties, and sometimes to irreparable mischief, and, on the other hand, to permit the proceedings to be stayed in every case, would render a chancery suit the greatest nuisance. It seems to me, that to proceed with the execution of the order appealed from, in this case, pending the appeal, might not only subject the parties to useless labor and expense, but might be productive of irreparable mischief. If the Court of Appeals should differ from the Chancellor, either with regard to the character of the settlement, or the principles upon which the account should be stated, or in his conclusions of fact, and the order of this court shall, in the meantime, be executed, it is manifest, that irreparable injury may be done, because, it may be impossible to restore the parties to the situation they previously occupied, or repair the consequences of the decree. It is said, however, that the defendant may obviate these con- sequences, by appealing from the final decree, and filing a new appeal bond. But this would involve the necessity of carrying two voluminous records to the superior court, at great expense, and, moreover, though the defendant has now been able to give an approved bond, in a penalty sufficient for this occasion, it does not follow, of necessity, that when the final decree shall be pronounced, and perhaps a larger penalty required, that a bond with adequate names can be given. I feel sensibly the argument founded upon the delay, which the judgment I have formed upon this motion may occasion. But, looking to the character of the order appealed from, the length to which it goes in determining the rights of the parties, 328 HIGH COURT OF CHANCERY. the consequences which may result from its enforcement, if the Court of Appeals should consider it materially erroneous, and furthermore, seeing that as the record will be presented to the appellate court, almost every question of law and fact, involved in the cause, may be finally decided, and thus the delay appre- hended essentially shortened. I am persuaded, that justice re- quires that the execution of the order of this court, passed on the 22d of November last, shall be stayed, pending the appeal, or until further order. It is thereupon ordered, that the exe- cution of the order of this court, passed on the 22d of Novem- ber, 1848, be, and the same is hereby, stayed, until the appeal from said order shall be heard and decided by the Court of Appeals, or until the further order of this court in the prem- ises. [The first order in this cause was affirmed on appeal, and the cause remanded with liberty to amend the pleadings.] THE CHESAPEAKE BANK vs. J> SEPTEMBER TERM, 1848. McCLELLAN AND RABORG. [RIGHT OF APPEAL OBJECTION TO TRUSTEE'S SALE.] AN appeal will lie from every decision which settles a question of right between the parties, no matter whether the decision was adverse, or by consent or default. The right to appeal for the mere purpose of delay, seems to be recognised by the act of 1832, ch. 230, which directs the appellate court to award damages in such cases, over and above the interest allowed by law on the judgment. Whether an appeal will lie or not, in any given case, is for the appellate court, and not for this court, to decide; it being a question relating to the jurisdiction of the superior tribunal, and, therefore, for it alone to determine. An objection to a sale, upon the ground that the decree under which it was made had been appealed from, and an approved appeal bond filed, of which the trustee, prior to the sale, had notice, was sustained and the sale set aside. [In this case a decree passed, by consent, on the 5th of July, 1848, for the sale of certain mortgaged premises, unless thede- CHESAPEAKE BANK VS. McCLELLAN. 329 fendants should, on or before the 15th of the same month, pay or cause to be paid, to the complainant, its mortgage debt, amounting to eight hundred and fifty dollars, with interest there- on from the 27th of January, 1847, and the costs of this cause. A trustee was appointed for the purpose of making such sale, and qualified by giving the required bond. He then proceeded to advertise the property, after the expi- ration of the time limited for the payment of the debt ; but be- fore the day of sale, on the 8th of August, 1848, the defendants entered an appeal from the decree, and filed an appeal bond, which was approved by the register of the court, as authorized by the act of 1826, ch. 200, sec. 5 ; and, it appears, by the report of the trustee, that there was exhibited to him, on the day of sale, but before the sale took place, a certificate from the register of the fact of such appeal having been entered, and of the filing and approvement of the bond. The trustee, however, acting under the impression that no appeal would lie from a decree, by consent, proceeded to make the sale ; and having reported it, and exceptions having been filed by the defendants to its ratification, upon the ground, that the appeal and bond superseded the decree, the question was submitted to the court upon the notes of the solicitors. Upon these exceptions the Chancellor says:] THE CHANCELLOR : The trustee maintains, that his proceeding in the matter was regular, because, an appeal will not lie from a decree, by con- sent, and refers to some observations made by the late Chan- cellor, in 1 Bland, 12, in which his honor does say, that a de- cree, passed by consent, cannot be appealed from ; but this po- sition appears to be founded upon an analogy to proceedings at law, which, it seems to me, is not sanctioned by the practice or the decisions in this state. The remark of the Chancellor is, that "as at common law, no writ of error will lie from a judg- ment by default, or by consent ; so in equity, the decree or or- der appealed from must have been adverse, and not made by the express or tacit consent of the appellant." 28* 330 HIGH COURT OF CHANCERY. But, in the case of Quynn vs. the State, Harr. fy Johns. , 36, a judgment, by confession, was taken by writ of error to the Court of Appeals, and the record was not only retained, but the judgment of the general court reversed ; and, it is believed, that the practice has been very general and of long standing, to take before the appellate court judgments and decrees, by con- fession, and by default ; and, that the only question ever made upon the subject of the right of appeal, has had reference, not to the proceedings which led to the decision appealed from, but to the character of the decision itself that is, whether it settled the questions of right between the parties. If it did, the appeal has been entertained, no matter whether the decision was adverse, or by consent or default. The right of appeal, for the mere purpose of delay, seems to have been recognised by the legislature, by the act of 1832, chapter 230 ; for, in such case, the court is directed to award damages, over and above the interest allowed by law upon the amount of the judgment. This law, though it imposes a pen- alty for taking a case before the Court of Appeals, merely for delay, yet appears to recognise the right, subject to the penal- ty, if, upon an examination of the record, the Court of Appeals should think it proper to impose it that is, if the court should think delay alone was the object of the appeal. But, whether an appeal will lie or not, in any given case, is for the appellate court, and not for this court, to decide ; it be- ing a question relating to the jurisdiction of the superior tribu- nal, and, therefore, for it alone to determine. Thompson vs. Me Kim, 6 Harr. fy Johns., 302 ; Oliver vs. Palmer and Ham- ilton, 11 Gill Sf Johns., 137. In view of these decisions of the Court of Appeals, it would seem impossible to contend, that this court would be justifiable in affirming a sale, made under the authority of its decree, from which an appeal had been taken, and for the prosecution of which appeal, an approved bond had been given. The sale, therefore, must be set aside. HARRISON VS. HARRISON. 331 SAMUEL HARRISON -\ vs. > DECEMBER TERM, 1848. ALEXANDER B. HARRISON ET AL.3 [SALES BY TRUSTEES OBJECTIONS TO STATUTE OF FRAUDS.] IT is the well understood law of this state, that in sales made under authority of trustees in chancery, the court is the vendor, and the trustee its mere agent, acting under a specially delegated authority. Though the trustee may depart from the special directions of the decree, yet a subsequent ratification by the court would render a sale as binding and valid, as if he had pursued, in all respects, those directions. The court, in confirming the acts of its agents who have not followed the direc- tions given them, must take care that no injustice is done the parties inter- ested, and that they have an opportunity of being heard before their rights are decided upon. It is not, always, a valid objection to the confirmation of a sale, proved to have been well attended and fair in other respects, that it was made on a different day, and at a different place from those mentioned in the advertisement. The report of the sale by the trustee, is not absolutely necessary to perfect the title of the purchaser. It may well be doubted, whether sales made by trustees under the authority of our courts of equity, are within the statute of frauds. [Alexander B. Harrison, trustee under a decree in chancery, in a creditor's suit, to sell the real estate of John Merchant, de- ceased, made sale thereof at auction, in St. Michaels, Talbot county, on the 2d of May, 1829, in different parcels, and re- ceived the purchase money therefor, but died without having made a report to the Chancellor. The sale, as appeared by the evidence, was well attended, and the prices bid, fair and rea- sonable. On the 19th of May, 1848, John Perrine, of the city of Baltimore, was, on the petition of Joseph Merchant and others, parties defendants in the cause, appointed trustee to collect the purchase money, and advertised the property again. On the petition of Thomas Keithby and others, who claimed it as purchasers, or through purchasers at the sale made in 1829, the proceedings of the trustee were suspended by order of the Chancellor. Testimony having been taken to prove the cir- cumstances attending the sale, the case was argued on the sev- eral petitions and orders. The Chancellor said, that the follow- 332 HIGH COURT OP CHANCERY. ing facts were, in his opinion, satisfactorily proved : That a sale was made by the trustee, on the day above mentioned ; that the prices given, were at the time, fair and reasonable ; that it was public, in the presence of a considerable number of bidders ; that there was competition between them ; that the purchase money had been paid to the trustee, or settled for ; and that the purchasers of those claiming under them, had been in possession of the property for a long time, and had made im- provements thereon to some extent. There was no proof of such an agreement between the trustee and the purchasers as, if it had been an ordinary sale, would have taken it out of the statute of frauds.] THE CHANCELLOR : It is the well understood law of this state, that in sales made under the authority of decrees in chancery, the court is the ven- dor, the trustee being the mere agent or attorney of the court, under a special delegated authority. Andrews vs. Scotton, 2 Bland, 629. And the true character of such a sale is, that it is a transaction between the court and the purchaser, and a pri- vate sale as well as a public sale may be made, if the court deem it advantageous. And after setting aside the sale re- ported by the trustee, as formally irregular, the court may re- vive the terms of the contract with the same purchaser, if no other objections existed, and those terms are deemed advanta- geous to the parties, who are in court prepared to protect their interests. Such is the language of the Court of Appeals in Glenn vs. Clapp, 11 G. # J., 8, 9. Regarding the trustee as the agent of the court in making the sale, it would seem to follow necessarily, that though he may depart from the special directions of his principal, and thus exonerate the latter from the obligation to confirm his act, yet, if he thinks proper to do so, the act of the agent will be as binding as if he had pursued, in all respects, those directions. A subsequent ratification of the act having the same effect, as a previous authority. The court, it is true, must take care, in confirming the acts of its agents who have not followed the directions given them, HARRISON VS. HARRISON. 333 that no injustice is done the parties interested ; and that they have an opportunity of being heard, before their rights are de- cided upon. But if after this is done, the court is satisfied that justice requires the ratification of a sale made by a trustee of this court, there is no principle which forbids it, though the trustee may not have observed those formalities, which were prescribed for him. It was said by Chancellor Hanson, in a case which appears to have been very carefully considered, that with respect to sales made under the authority of the court, he thought himself bound to act as if the property were his own, or held by him in trust ; and that reasons which would induce him, as proprie- tor, or trustee, to set aside a sale made by his agent, would in- fluence him as Chancellor. Lawson vs. the State, 2 Bland, 641, note. Whether this is the true rule or not, need not be deter- mined here, for although the court may not have so large a dis- cretion, in repudiating the contract of its agent, as is suggested by the Chancellor in that case, it may be safely assumed, I think, that though its agent may not have conformed in all res- pects, to the regulations prescribed for him by the court, it may, nevertheless, if justice to all parties can be done, ratify his act. It has been already remarked, that the sales which are now impeached, were public, and fair, and that the terms have been complied with ; and hence it follows, that if they are vacated, it must be upon grounds exclusively affecting what are called the model arrangements, by which the trustee was to be gov- erned. The first objection of this description is, that the sale was not made at the time and place mentioned in the printed adver- tisement, found among the proceedings. The time, as advertised, was the 21st of April, 1829, and the place at the court-house door, in Easton ; whereas the sales actually made, were made on the 2d of May following, and the place, St. Michaels. It is in proof, however, that a large com- pany were present, and it may reasonably, I think, be inferred, that on the day fixed by the advertisement, the sale for some 334 HIGH COURT OF CHANCERY. sufficient reason, was postponed, and that notice was then pub- licly given, that it would be had at the time and place at which it was actually made ; and when it is recollected, that the prop- erty lay in and about the town of St. Michaels, the policy of such change of place, is readily seen. The trustee who made the sale, is now dead, and . nearly twenty years have elapsed, and under such circumstances, to require of the purchasers, who have complied, and paid their money, to prove by positive evidence, a compliance by the trustee with this regulation, would, it appears to me, be a hard measure of justice. The court may presume that notice was given, and indeed when the proof shows, that a large number of persons were present, such a presumption can scarcely be avoided. Next it is objected, that the trustee did not make a report of his sales, as directed by the decree. But, I apprehend, the title of the purchaser cannot depend absolutely upon the performance by the trustee, of this part of his duty. If it did, it is obvious, that in many cases, from death, and other causes, the title of purchasers might be defeat- ed. This court may, I think, if satisfactorily convinced that a sale has been made by its agent, though that agent has not in- formed it, in the mode directed that is, by a report approve and ratify the sale. To show that the title of purchasers are not made to depend upon the full compliance by trustees with their duty as prescribed by the decree, the case of Ramsay's estate has been referred to, in which a sale was ratified, though the trustee gave no bond. In addition to these objections, the statute of frauds has been urged, not by way of plea, or exception to the sale, made in writing, but ore tenus, and by way of argument. It may, I think, upon authority, and upon principle, be very well doubted, whether sales made by trustees under the authority of our equi- ty courts, are within the statute of frauds. In 2 Daniel's Prac., 752, it is said, that sales before a master of the court, under a decree or order, are not within the statute of frauds. And, in the case of the Attorney General vs. Day, Lord Hardwicke said, HARRISON VS. HARRISON. 335 that purchasers before the master are certainly out of the stat- ute ; and, that he would not hesitate carrying the purchase into execution, against a bidder before the master, without subscrip- tion, after confirmation of the master's report ; the judgment of the court taking it out of the statute. Now, if the judgment of the court, confirming the master's report, will take the case out of the statute, it is not easy to perceive, why the judgment of the court, ratifying the sale, though not reported by the mas- ter, will not have the same effect. If the master's report is not subscribed by the bidder, it cannot be regarded as a contract signed by him, or some person authorized by him. If the re- port of the master, though not subscribed by the purchaser, has been considered binding upon him that is, as having been made by his agent duly authorized, then, the language of Lord Hardwicke that the judgment of the court took the case out of the statute would have been inappropriate ; because, the requisition of the statute being already complied with, by the report of the master, there could be no necessity for any judg- ment, to relieve the case from the operation of the statute. Sales of land, by sheriffs, have been decided in this state, to be within the statute of frauds. Barney vs. Patterson, 6 H. . Sf J., 172. But, the essential points of difference between sales so made, and the character and authority of the sheriff and of trustees appointed by this court, are fully and clearly stated by my predecessor, in Andrews vs. Scotton, 2 Bland, 636. These differences are so many and material, that it is impossi- ble, with safety, to apply any one principle to them both. But, the vital difference, perhaps, with reference to the ques- tion now under consideration, is, that the sheriff's sale, if made conformably to law, is final and valid, and passes the title ; whereas, chancery sales, the court being the vendor, are not binding and conclusive until approved and ratified by the court. It is not, however, necessary in this case to decide the broad question, whether the sales are or are not within the statute of frauds, for one or two reasons. In the first place, the statute is not pleaded at all, by any one, but only relied upon ore tenus. 336 HIGH COURT OF CHANCERY. and in argument. In the next, the objection is made, not by a party to the contract, it being between the court on the one side, and the vendees on the other, but, by the heirs of the party whose lands the court had decreed should be sold the right of whom to interfere in this way may well be doubted. And, in the third place, this contract of sale having been performed by the payment of the purchase money, and delivery of possession is taken entirely without the statute, and must be carried into full execution. If other reasons were required for confirming these sales, they would be found in the great length of time which has elapsed since they were made, and the other attending circumstances of the case. They were made in 1829, and it was not until the year 1847, after the death of the trustee, that any attempt was made to dis- turb the title of the purchasers, and then, only by affirming that the purchase money had not been paid. Some of the parties now urging objections, were parties to the cause in which the decree passed, and must, therefore, be pre- sumed to have had some knowledge of it. And, in view of the public manner in which the property was sold, and the large company present upon the occasion, it is difficult to believe they did not know of the sale. It was quite as much their du- ty as the duty of the purchasers, to require the trustee to make his report, and it can scarcely be doubted they would have done so, if they had not known that the creditors of their an- cestor would take the whole purchase money. The purchasers received the 'trustees' deed, and after this lapse of time, it would be a severe measure of justice to re- quire them to show that every formal prerequisite had been complied with, especially, in favor of parties who have for so long a time slept upon their rights. [The order in this case was affirmed on appeal.] HAYS VS. HENRY. 337 ELIZABETH HAYS vs. ^ DECEMBER TERM, 1848. CHARLOTTE HENRY ET AL. [WIFE'S RIGHT TO PERSONALTY FRAUDULENT CONVEYANCES.] IT is not in the power of a husband in this state, by will, to deprive his widow of that portion of his personal estate, to which she is entitled by law. Yet, there can be no doubt of his right to dispose, absolutely, of this description of property during his life, independently of the concurrence and exonerated from any claim of the wife ; provided, the transaction be not colorable mere- ly, and be unattended with circumstances, indicative of fraud upon the rights of the wife. One of the badges of fraud in such cases, is the retention of the possession of the property by the husband, after the transfer of the title, or keeping the deed in his hands after its execution. It being proved, that the husband, with a design to deprive his widow of her share of his personal estate, executed the conveyances in question, but did not part with the possession, but lived upon and enjoyed the property until his death the deeds were set aside as frauds upon the rights of the wife. [This case was removed from the equity side of Baltimore County Court. The bill filed by the widow of Simeon Hays, stated, that he died in the year 1847 ; that he had for upwards of twenty years previous cohabited with Charlotte Henry, by whom he had two children ; that he also had two children by the complainant ; that on the 2d of April, 1844, having con- verted certain of his estate into money, the said Hays bought with it a house and lot in Baltimore, subject to a ground rent, and caused it to be conveyed to said Charlotte, who, on the 9th of the same month conveyed it to him, in trust, for her use during her life, with remainder to their two children, and, in case said children died without issue, to the two children of the complainant ; that both deeds were recorded on the same day ; that Hays had always treated the property as his own ; and, that the conveyances were made solely for the purpose of pre- venting any of his property from going to his wife, the com- plainant, at his death. It was further stated, that letters of administration on his estate had been granted to the complain- ant, and, that if the property in question, were decreed to be a VOL. i29 338 HIGH COURT OF CHANCERY. part of Hays' estate, there would be more than sufficient to pay all his debts, and the expenses of administration ; and prayed that such a decree might pass, and, that she might be per- mitted to receive a third of the residue. The answer of Charlotte Henry, stated, that the property had been bought with her money ; and, denied that the deceas- ed had exercised such acts of ownership over it, as were in- consistent with the nature of the trust ; and further denied the complainant's right to bring her title in question, in the man- ner attempted. A commission to take testimony was subse- quently issued and returned, the nature and effect of the evi- dence taken under which, will appear from the Chancellor's opinion :] THE CHANCELLOR: It has been conceded in this case, and certainly it could not be disputed, since the decisions in Griffith vs. Griffith, Ex^rs., 4 Harr. # McHenry, 101 ; and Coomes vs. Clements, &th Harr. fy Johns., 480, that it is not in the power of a husband in Maryland, by will to deprive his widow of that portion of his personal estate to which she is entitled by law ; the amount of the share depending upon circumstances, being one-third or one-half, according to those circumstances. This has been the settled and unquestionable law in this state, since the decision of the cases referred to. But, although the husband is not permitted to deprive his wife of her reasonable share of his personal estate by will, there can be no doubt of his power to dispose absolutely of this description of property during his life, independently of the concurrence, and exonerated from any claim of the wife, pro- vided the transaction is not merely colorable, and be unattend- ed with circumstances indicative of fraud upon the rights of the wife. If the disposition by the husband be bona fide, and no right is reserved to him, then, though made to defeat the claim of the wife, it will be good against her, because, as was observed in the argument, an act cannot be denounced as fraudu- lent which the law authorizes to be done. HAYS VS. HENRY. 339 But if it be a mere device or contrivance, by which the hus- band, not parting with the absolute dominion over the property during his life, seeks, at his death, to deny his widow that share of his personal estate which the law assigns to her, then it will be ineffectual against her. One of the badges of fraud in such cases, is the retention of the possession of the property by the husband, after the transfer of the title, or keeping the deed in his hands after its execu- tion. Smith vs. Fellows, 2 Atkinson, 62, 377. In Hall vs. Hall, 2 Vernon, 276, the court said, if goods are absolutely given away in his lifetime, this will stand good against the custom (under which the wife claimed.) But if he has it in his power, as by keeping of the deed, &c., or if he re- tains the possession of the goods, or any part of them, this will be a fraud upon the custom, and of course will not prevail against the claim of the wife. In 2 Roper, on Husband and Wife, pages 17 and 18, the author, after reviewing the cases, lays down this rule as the true one to be extracted from them ; that, if the act (of alienation) be accompanied with the delivery of the property, and every thing is done, (so far as it can be,) before the husband's death intestate, to give effect to the transaction, and there is no reservation, and the husband divests himself of all interest in the property, then the act will be necessarily valid, as a due exercise of his admitted right whilst life remained, to dispose of his property in bar of the custom. It is, therefore, very material in this case to ascertain whether Hays, the husband of the complainant, did part with the possession of the property in question. That it was purchased by him, and paid for with his money, I entertain no doubt ; and, I am persuaded, that the utmost in- genuity will in vain seek to create a doubt upon the subject in opposition to the mass of evidence to be found in the re- cord. It was purchased of Mr. Ferine, and by that gentleman, on the 2d April, 1844, conveyed to the defendant, Charlotte Henry, by the direction, as may be inferred from the proof, of 340 HIGH COURT OF CHANCERY. Simeon Hays. A few days afterwards, to wit, on the 9th of the same month, Charlotte Henry, conveyed the same property to Simeon Hays, upon the trusts in said deed expressed. These two deeds were enrolled on the same day, and the in- ference is a very natural and fair one, that they are parts and parcels of the same transaction ; and, were intended to con- summate a purpose contemplated when the purchase was made. That purpose, I am fully convinced, was to deprive the com- plainant, the widow of Hays, of her share of her husband's estate. This purpose, there is no doubt, could have been ac- complished by an absolute and unconditional alienation of the property by sale or gift ; and, although such alienation was made with the intent imputed to this act, it would not vitiate it, provided there was a transfer of the possession as well as the title, and no reservation, whatever, to the husband. But, in this case, Hays did not part with the possession. On the contrary, Mr. Coates stated, that Hays bought the property in question, lived in it, and died in it. There is, moreover, in the assignment of the lease by Char- lotte Henry to Hays, a provision which seems to have been designed to secure him in the possession of the property during his life. The language of the covenant is, "that he shall peaceably and quietly have, hold, use, occupy, possess and en- joy, the said piece of ground and premises," &c., "without the let, suit, molestation, interruption, eviction or disturbance of the said Charlotte Henry," &c. It is true, in the declaration of the trust, it is said, that the property shall be held by him, for the sole use and benefit of the said Charlotte Henry, during her life, &c., and after her death, in trust, for the benefit of her children, with a limitation over in the event of their death without issue, for the use of the children of Hays by the complainant ; and, therefore, it is con- tended, that he took no beneficial interest under the assign- ment, being a mere depository of the naked legal title. But still, the legal title was conveyed to Hays, with a covenant that he should have possession, and the proof shows, that he did in fact, retain the possession and use down to the period of his death in 1847. HAYS VS. HENRY. 341 The inference, therefore, I think, is very strong, not to say conclusive, that these deeds were the result of a contrivance, invented and put in execution, to deprive the complainant of that portion of the personal estate of her husband, to which by law she became entitled, unless bona fide and absolutely sold, or given away by him in his lifetime. If Hays intended to make a complete and unreserved dis- position of the property, why was the deed of trust of the 9th of April executed at all ? Charlotte Henry was perfectly competent to hold the title and deal with the property as she might think fit, and, there- fore, it is not easy to imagine a reason for the execution of the trust deed, unless it was the design of the parties to secure to Hays a control during his life. There is another provision in this trust deed, which I think is worthy of consideration in determining upon its character, and upon the influence which Hays exerted over the disposition of the property conveyed by it. The limitation over, in the event of the death of the children of Charlotte Henry, by Hays, is to his children by the complainant. But, the answer of Charlotte Henry avers, that the property was paid for with her own money, and if this be assumed as true, it is difficult to conceive a reason why, in any event, and upon any contingency, she should ba willing that it should be enjoyed by the children of the complainant. This provision in the deed, then, is to be attributed to the influence of Hays, and raises a strong prob- ability, I think, independently of the parol evidence, not only that his money paid for the property, but that, notwithstanding the title was conveyed by Mr. Ferine to Charlotte Henry, by his direction, his will controlled its destination. Though he had utterly discarded his wife, there would ap- pear to have remained in his heart some feeling of affection for his children by her, and to this feeling, as I think, must be ascribed the .contingent benefit intended for them. In view of all the circumstances of this case, I am of opin- ion, that the complainant is entitled to relief, and shall so de- cree. 26* 342 HIGH COURT OF CHANCERY. The conveyances, however, I regard to be void, as frauds upon the rights of the wife, and will, therefore, pass a decree for the sale of the property to pay her one-third, with a reserva- tion of equities as to the residue of the proceeds of sale. The solicitor of the complainant may prepare a decree. [No appeal was taken in this case.] ALEXANDER FRANKLIN AND ROBERT FRANKLIN . DECEMBER TERM, 1848. BENJAMIN FRANKLIN. [REMEDIAL LAWS ACT OF 1842, CH. 229 BILL OF REVIVOR.J REMEDIAL laws are to be construed liberally, to advance the remedy and obvi- ate the mischief ; but, they are not to be so expanded, as to comprehend cases altogether beyond their purview. So to apply and enlarge the law, would be judicial legislation under the guise of interpretation. The act of 1842, ch. 229, only provides a more summary and economical rem- edy, when cases abate, either before or after decree, by the death of parties, and does not embrace the case of a decree which has become dormant by lapse of time. The legal presumption, when the three years from the date of the decree have elapsed, is, that it has been executed or satisfied ; and the appropriate remedy is, to revive it by a bill of revivor. [On the 3d of January, 1849, a petition was filed in this cause, by Robert Franklin, against the widow and children of Benjamin Franklin, deceased, stating, that on the 25th of July, 1839, a decree was passed therein for the partition of the real estate of Robert Franklin, deceased, in Anne Arundel county, wherein lot No. 1 was assigned to Benjamin Franklin, the defend- ant, and lot No. 3 to the petitioner, and said Benjamin was direct- ed to pay to the petitioner for owelty of partition, the sum of $1,335; that the whole of said sum of money, with interest, was still due, except $500, paid on the 1st of July, 1844, a receipt for FRANKLIN VS. FRANKLIN. 343 which was held by the administratrix of said Benjamin ;, that said Benjamin died, three or four years ago, intestate, leaving a widow, the administratrix above mentioned, and several in- fant children, all of whom reside on the estate and receive the rents and profits thereof; and praying, that the property might be decreed to be sold to pay said debt, or a writ of fieri facias issued, to enforce said decree. The defences made were, that the decree having passed more than three years before the petition was filed, it could only be revived by a regular bill of revivor ; that a guardian should have been appointed to take the infant's answers ; that there was no allegation of an insuf- ficiency of the personal estate ; that the debt had been fully paid ; and, that the cause of action, under the said decree, was or ought to have been, included in the bill filed in this court by the petitioner, on the 18th of January, 1849, and if not, the two causes ought, at least, to be consolidated now.] THE CHANCELLOR: The petition filed in this case by Robert Franklin, on the 3d of January last, is founded upon the act of 1842, ch. 229 ; and, as must, be conceded, must stand or fall, according as it may or may not be warranted by the provisions of that act. Its ob- ject is to procure, in a summary way, the execution of a de- cree passed by this court, on the 25th of July, 1839, either by a sale of the property supposed to be bound specifically by the decree, or an execution of fieri Jacias to make the money. [After briefly alluding to the facts of the case, the Chancel- lor proceeded to notice the defence taken ; that the decree ought to be revived by a bill of revivor.] t The act of assembly, upon which the petitioner relies, is a remedial law, and, to be construed liberally, to advance the remedy and obviate the mischief; but still, the court does not feel itself at liberty to stretch its provisions, to cases which do not appear to have been within the contemplation of the legis- lature, becaase, it may think that the convenience of parties 344 HIGH COURT OF CHANCERY. always promoted by facilitating the administration of public justice would be advanced by such extension of the law. The acts of the legislature, and especially those of the charac- ter now under consideration, are to receive a free and liberal interpretation ; but, they are not to be so expanded as to com- prehend cases altogether beyond their purview. So to apply and enlarge the law, would be judicial legisla- tion under the guise of interpretation. The first section of the act was intended to cure the evil re- sulting from the death of defendants before the cause had ripen- ed into a final decree ; and, for that purpose authorizes the court, in its discretion, to order the cause to be proceeded in as if no such death had occurred, or, to direct a bill of revivor to be filed against the proper representative of the deceased, as may appear best calculated to advance the purposes of justice. The second section was designed to supply a more expedi- tious mode of reaping the fruits of decrees already passed, and which, by the death of parties, subsequently, would therefore have abated. It declares, that a final decree shall not necessa- rily abate by the suggestion of the death of any one of the par- ties thereto ; but,, the court, in such case, may order execution to be made of such decree, as if no such death had occurred, or require a subpoena scieri facias to be issued, or bill of revivor to be filed against the proper representative, or pass such other order or direct such other proceedings as may seem best calcu- lated to advance the ends of justice. This law, however, only provides a more summary and eco- nomical remedy when cases abate, either before or after decree, by the death of parties. The first section provides for the case of death of defendants only, but the succeeding section extends to the death of any one of the parties to the decree, and, of course, was intended to afford a more expeditious method of re- alising the fruits of a decree, notwithstanding the death of either plaintiff or defendant, than the law and practice of the court had before given. But, the act does not embrace the case of a decree become dormant by lapse of time, and when the law presumes from the BEARD VS. LINTHICUM. 345 delay, that it is released or satisfied. It is not very difficult to conceive a reason why the legislature may not have intended to embrace decrees presumed, from efflux of time, to be exe- cuted or satisfied, and to extend to them the summary remedy provided by the act for the case of abatements caused by death. In the latter case, the event the death of the party is one which no diligence or precaution on the part of the suitor can guard against; whilst, in the former, it is his own fault if he suf- fer his decree to become dormant by lapse of time. It is true, this delay is not unfrequently the result of forbearance on the part of the creditor ; but still, until the parties are brought be- fore the court and heard, the legal presumption, when the spe- cified period from the date of the decree has run out, is, that it has been executed or satisfied. Mullikin vs. Duvall, 7 G. fy /., 358, 359. Thinking, then, after a careful consideration of the act of as- sembly, that it does not embrace this case, which is the case of a decree become dormant by lapse of time, as well as abated by the death of the defendant, and that a bill of revivor would be the most appropriate remedy, I shall dismiss the petition of the complainant, though without costs, the case being one of the first impression. [No appeal was taken from this order.] HARRIET A. BEARD vs. x* DECEMBER TERM, 1848. JOHN H. LINTHICUM ET AL.- [STATDTE OF FRAUDS PART PERFORMANCE SPECIFIC PERFORMANCE.] IT has been repeatedly remarked by eminent judges, that the disposition, which at one time existed to relax the statute of frauds, should be opposed ; and, that the courts should take a stand against any further encroachment upon its provisions. A party who seeks to take a case out of the statute on the ground of part per- formance of the contract, must make out, by clear and satisfactory proof, the existence of the identical contract, charged in the bill. 346 HIGH COURT OF CHANCERY It is not enough, that the act relied on, is evidence of some agreement ; but, it must be unequivocal and satisfactory evidence of the contract, charged in the bill. The remedy, in cases of specific performance, must be mutual ; and, if one of the parties is not bound, or is not able to perform his part of the contract, he cannot call upon the court to compel a performance by the opposite party. [The object of this bill, which was filed by Harriet A. Beard, administratrix of John Beard, deceased, was the specific per- formance of a contract for the sale of land, alleged to have been entered into between the deceased husband of the complainant, and John H. Linthicum ; and also a writ of ne exeat against the said Linthicum. The bill stated that Beard, in his lifetime, had bought a parcel of land from George H. Stewart, for the sum of three thousand dollars, which he afterwards agreee to sell to Linthi- cum for the same price, increased by the interest which had ac- crued on the purchase money due to Stewart ; and that Linthi- cum had agreed to give to Beard a bill of sale of certain negroes, to secure said payment. The bill further stated, that Linthicum took possession of the land in pursuance of the agreement, but that he had not paid any portion of the purchase money, or ex- ecuted the bill of sale ; but that he had actually sold one of the negroes, and applied the proceeds of the sale to other purposes, (although upon Beard's remonstrating with him, he had promis- ed to apply it to said payment ;) and that he was threatening to leave the state and carry the negroes with him. Prayer for the specific performance of the agreement, an in- junction to restrain Linthicum from selling the negroes, or re- moving them out of the state, and a writ of ne exeat regno, to prevent him from leaving the state. Linthicum, in his answer, denied the making of the contract stated in the bill, and pleaded the statute of frauds thereto ; and further stated that he did agree to give $1800 for the land, if Beard would procure the consent of Stewart to the sale, and have certain disputes relative to the boundaries of the land, settled ; that Beard, at the time said conditional agreement was made, proposed to him to take possession of the land at once, BEARD VS. LINTHICUM. 347 and have a final adjustment of the contract as soon as the con- sent of Stewart could be obtained ; that he accordingly did enter upon the land and occupied the same, (though he did not consider himself a purchaser thereof,) but that Beard never had procured the consent of said Stewart, or settled the disputes relative to the boundaries of the land ; that he never had agreed to mortgage any negroes to secure the payment of the purchase money of the land ; that the negroes alluded to belonged to his mother; and that he had no intention of removing himself or the negroes out of the state. The answer of Stewart, who was made a defendant, stated that he never would have sanctioned so loose a contract as that charged in the bill, and that he had himself instituted a suit in chancery to obtain a sale of the lands in question, to satisfy his claim. Certain testimony was afterwards taken, the effect of which will appear from the Chancellor's opinion ; and afterwards an agreement was filed to amend the bill, (if the Chancellor would have authorized such an amendment,) by striking out the alle- gation in regard to the interest which had become due since the purchase from George H. Stewart. The case having been submitted at this term, the Chancellor delivered the following opinion :] THE CHANCELLOR: This is a bill for the specific performance of a parol contract to sell land, and the contract being denied by the answers, and the statute of frauds insisted on, an effort has been made, on the part of the plaintiffs, to take the case out of the statute of frauds by proving acts of part performance. It has been repeatedly remarked by eminent judges that the disposition which at one time existed, to relax the statute of frauds, should be opposed, and that the courts should take a stand against any further encroachment upon its provisions, and not go beyond the rules and precedents already established. Such was the language of Chancellor Kent in Philips vs. Thompson, 1 Johns. Ch. -Rep., 131, and such I am persuaded 348 HI GH COURT OF CHANCERY. will be the view which every one will take of the subject who will reflect carefully upon the consequences which must result from a different tendency. The rule is believed to be firmly established, that to entitle a party to take a case out of the statute of frauds, on the ground of part performance of the contract, he must make out by clear arid satisfactory proof the existence of the identical contract laid in his bill. It is not enough that the act relied on is evidence of some agreement, but it must be unequivocal and satisfactory evidence of the contract charged in the bill. Philips vs. Thomp- son, 1 Johns. Ch. Rp., 131 ; Parkhurst vs. Van Courtland, ib. 273 ; 3 Kent's Com. 451 ; 2 Story's Equity, sec. 764. This court has upon several occasions been called upon to express its opinion upon cases resembling in principle the present, and the conclusions to which it has arrived after a careful consider- ation of the subject, have been adverse to the relief asked for. The court, if it acts at all in such cases, must act upon the entire contract as laid in the bill. It must be executed in all its parts specifically and rigorously, and hence the indispensa- ble necessity that each and every part of the agreement set up in the bill should be clearly established by the proof. Owens vs. Baldwin and Wheeler, ante, page 120 ; Waters vs. Waters, ante, page 196. Unless this can be done, it is obviously better to send the plaintiff to a court of law, where relief can be given in dam- ages, with a moderation agreeable to equity and good con- science, and where the various pretensions of the parties can be considered by a tribunal more competent to decide upon the extent of the actual injury sustained by the non-performance of the agreement. In the present case, the contract as laid in the bill, is con- ceded not to be sustained by the proof, and hence the condi- tional agreement to amend the bill by striking out the allegation upon the subject of interest upon the purchase money. The right to amend this bill, and especially at this stage of the pro- ceedings, is contested, and perhaps upon an examination of the books of practice and authorities, it would be found not to BEARD VS. LINTHICUM. 349 be warranted ; but the court does not now propose to decide the point, as even if the amendment be authorized, or the bill had originally taken the shape now proposed to be given to it, still, I think the plaintiff cannot have a decree, because she has not laid before the court that clear, definite and unequivocal proof of the contract in all its terms, which the rule requires. So far as the bill, in this case, charges an agreement by the defendant to secure the payment of the purchase money of the land by a mortgage of slaves, there is a total and absolute fail- ure of evidence, not a witness having spoken upon the subject, nor a single circumstance having been shown, from which such an agreement can be fairly inferred. It is true, some one or more of the witnesses do say something about the plaintiff's intestate having complained of the sale by the defendant of a slave ; but the answer discloses a sufficient reason for this ; and independent of the answer, it would surely be a random con- jecture from this isolated and inconclusive circumstance, to come to the conclusion that the defendant had agreed to give a mortgage upon the slaves in question, to secure the payment of the purchase money of the land. It is surely a pertinent in- quiry to ask, if such an agreement was made, why was not the mortgage given ? There was unquestionably abundant time, and if the contract of sale had been definitively settled, and the terms agreed upon, it is difficult to conceive a sufficient reason for the non-execution of the mortgage. I regard, therefore, this charge in the bill as wholly unsup- ported by the proof, and the rule being, that the identical con- tract in all its parts as set up in the bill, must be proved, it would follow that a failure of evidence in this particular would be fatal to the complainant's prayer for a specific performance. But, conceding that this part of the contract is independent and separate from the residue, or that the giving the mortgage simply referred to the mode of payment ; or that for any other reason, the plaintiff may have a specific execution of the resi- due of the agreement if proved, laying the stipulation about the mortgage out of view, still, I think, the complainant has failed to show herself entitled to the relief she asks for. VOL. i 30 350 HIGH COURT OF CHANCERY. There is not, in my opinion, that clear and convincing proof of a contract for the sale of land and acts of part performance, which must be produced to take a case out of the statute of frauds. There was some agreement, no doubt, between these parties, but what it was, what were its terms and conditions, does not appear, and it is impossible, I think, to say that the act of part performance relied upon, could have been with no other view or design than to perform the agreement set up in the bill ; which, as the cases prove, is indispensably necessary to entitle the party to a specific performance. He must show acts, unequivocally referring to and resulting from that agreement, such as the party would not have done unless on account of that very agreement. In this respect, I think, the present case is deficient, and therefore a specific per- formance cannot be decreed. But, there is another, and, in my judgment, insuperable ob- jection to granting the complainant relief upon this bill. The intestate never was in a condition to complete the title, and the cases are abundant to show, that unless a party is ready and competent to perform the contract on his part, he cannot call for a specific performance from the other side. Benedict vs. Lynch, 1 Johns. Ch. Rep., 370, and the cases referred to by Chancellor Kent in that case are conclusive upon the subject. The title to the land in this case was, and is, in George H. Stewart, who sold to Beard, and to whom more is due than the land, according to the proof, would now sell for. Stewart says in his answer, that he never would have sanctioned such a loose contract as is set up by this bill, and it is alleged by him, and it is in proof, that he is now prosecuting an independent bill in this court, against the widow and heirs of Beard for the sale of the land to pay his claim, and he insists that he should not be embarrassed or delayed in the prosecution of his suit, by the proceedings in this. The remedy in these cases of specific performance must be mutual, and if one of the parties is not bound, or is not able to perform his part of the contract, he cannot call upon the court to compel a performance by the opposite party. Benedict vs. BROOKS VS. DELAPLAINE. 351 Lynch, 1 Johns. Ch. Rep., 370. And it being perfectly clear in this case that Beard never was, and the complainant is not now, in a condition to perform his part of the contract, the re- lief asked for, must on that account be refused. Upon the whole, I am of opinion, that the injunction must be dissolved, the ne exeat discharged, and the bill dismissed. [No appeal was taken from this decree.] CHAUNCY BROOKS ET AL. vs. ^. DECEMBER TERM, 1848. JOHN DELAPLAINE ET AL. [CONCURRENT JURISDICTION OF THE COURT OF CHANCERY AND THE COUNTY COURTS.] THE appearance of the defendants to the bill, and their submitting to answer it, would be a waiver of any objection to the jurisdiction of the court. The power of the county courts, within the boundaries assigned them, are equal, in every respect, to the powers of the Court of Chancery. When two courts have concurrent jurisdiction over the same subject matter, the court, in which the suit is first commenced, is entitled to retain it. This rule is vital to the harmonious movement of the courts ; and, any other would, unavoidably, lead to perpetual collisions, and be productive of the most calamitous results. [On the 28th of March, 1844, John Delaplaine, of Carroll county, executed to Wm. P. Maulsby, a deed of trust of all his property for the benefit, firstly of certain of his creditors there- in mentioned, and after the payment of their claims, for the be- nefit of all other persons having any demands against him. In the month of August following, said Delaplaine applied for the benefit of the insolvent laws of Maryland, and the said William P. Maulsby was appointed his permanent trustee ; and in the month of October, 1846, a bill was filed on the equity side of Frederick County Court by Basil Norris, one of the preferred creditors, against said Delaplaine, and Maulsby, for an account of the trust fund of the said Maulsby, and for an adjudication 352 HIGH COURT OF CHANCERY. of the questions which might arise Under the deed of trust, or grow out of the subsequent application of said Delaplaine for the benefit of the insolvent laws. A decree for an account was obtained in this case, with which said Maulsby complied ; after which a bill was filed in this court by certain of the unpreferred creditors of the insolvent, to have the deed of trust set aside for fraud, and for an account by said Maulsby. The defendants in this case having filed their answer, the question as to the jurisdiction of this court was presented to the Chancellor, who delivered the following opinion:] THE CHANCELLOR : Of the jurisdiction of Frederick County Court as a court of equity over the subject of this trust, it is supposed no serious doubt can be entertained ; but even if this was questionable, the appearance of the defendants to the bill filed there, and their submitting to answer it, would be a waiver of any objection upon that ground. Carroll vs. Lee, 3 G. Sf J., 504. The bill filed in the Frederick court was a creditors' bill, and submitted to the court their rights, as they might exist under the deed, or be affected by the proceedings in insolvency of the grantor ; and the order of the court referring the case to the Auditor, contains a reservation of equities, that such subsequent proceedings might be adopted, according as the creditors might prefer to claim under, or against the deed. The bill filed in this court assails the deed of March, 1844, as fraudulent in fact, and under our insolvent system ; and pro- poses to. set aside the sales made by the trustee Maulsby ; to have the property sold by a trustee to be appointed by this court ; and asks for an account. But Maulsby has been already called upon to account for this same trust in a court of co-ordinate jurisdiction ; which court has directed its proper officer to state the necessary ac- counts, and to bring before it the parties who may be interested. If the creditors, when they come in, are dissatisfied with the conduct of the trustee, either in disposing of the trust estate, or in any other respect, they may in that court take such steps as BROOKS VS. DELAPLAINE. 353 to them may seem proper, for the vindication of their rights. If they have reason to think that the decree of the court, of February, 1847, was obtained by collusion, and fraudulently, the remedy for such fraud is open to them there. Or, if the terms of the decree are such as to leave open the questions they de- sire now to litigate, the court which passed the decree is surely the proper tribunal for the adjudication of those questions. This court has no means of knowing, nor is it important it should know, what further proceedings have been had in Fred- erick County Court, since the decree of February, 1847. It is enough that it is duly informed, that such a decree was passed upon a bill filed there, before the exhibition of the bill in this court. That decree, it is presumed, is in a course of execution, and if this court is to proceed upon the bill filed here, it is indisput- ably necessary that the cause in Frederick should stop ; as otherwise it may happen, and indeed the result can scarcely be avoided, that inconsistent and conflicting decrees will be pass- ed with reference to the same subject matters. But what power has this court to arrest the proceedings of Frederick County Court ? The county courts by the express terms of the act of 1815, chapter 163, section 1, are clothed with all and singular the powers, authorities and jurisdictions that can or may be exercised by the Chancellor of this state, whether the same be derived from the common law, or in virtue of any stat- ute or act of assembly heretofore passed. These county courts are, to all intents and purposes, co-ordinate courts with ttis, exercising concurrent jurisdiction within their respective or- bits the jurisdiction of the Chancery Court being co-extensive with the limits of the state, that of the county courts depending upon the locality of the property, or upon the residence of the defendants. But the powers of the county courts within the boundaries assigned them, are equal in every respect to the powers of this court ; the appeal from all being to the Court of Appeals. There is no instance, as remarked by the late Chancellor in Brown vs. Wallace, 1 G. fy /., 497, in which either one of the 30* 354 HIGH COURT OF CHANCERY. English courts has attempted to hinder or stay any part of the proceedings in a suit which had been rightly instituted, and was then progressing in another ; nor has it ever been intimated that either of these courts could call before it the parties to a suit depending in the other, to give an account of acts done under the authority of the other. The rule established by that case, both by the reasoning and judgment of the Chancellor, and by the Court of Appeals, is this : that when two courts have concurrent jurisdiction over the same subject matter, the court in which the suit is first commenced, is entitled to retain it. This rule would seem to be vital to the harmonious move- ment of courts whose powers may be exerted within the same spheres, and over the same subjects and persons. This court has no more power to stay the proceedings of the county courts as courts of equity, than have the latter courts to prohibit proceedings in this; and if this court should now enter- tain jurisdiction of the subject matter of the present contro- i versy, and proceed to decree the relief sought by the bill, there v may, and will probably, be two decrees inconsistent with each / other, each affecting the same persons. } The only course of safety, therefore, is, when one court hav- (ing jurisdiction over the subject, has possession of the case, for All others, with merely co-ordinate powers, to abstain from any interference. Any other rule will unavoidably lead to perpetual collision, and 'be productive of the most calamitous results. It is said that the creditors who file this bill were not parties to the decree in the Frederick court. But the bill filed in that court was a creditor's bill, and the decree was for the benefit of all the creditors, and in the nature of a judgment for all; and all the creditors are entitled, and have been notified to come in and prove their debts, according to the course of proceedings usual in such cases. And as decided by Chancellor Kent in Thompson vs. Brown, 1 Johns. Ch. Rep., 619, from the date of such decree against an executor or administrator, and on a disclosure of assets, an injunction would be granted on motion MONICA VS. MITCHELL. 355 of either party, to stay all proceedings of any of the creditors, at law. The subject of this trust, prior to the filing of the present bill, was before a court of competent jurisdiction, and of powers equally ample as those possessed by this court. That court and this, if both proceed in the causes before them, may come to different and irreconcileable conclusions, and thus lead to a conflict of powers which can only end in mischief and perplex- ity. I had occasion to examine the subject in the case of Winn and Ross vs. Albert and wife, and then came to the con- clusion, which has been confirmed upon subsequent reflection, that when any one of our equity courts, having jurisdiction over the subject, has possession of it, it must be finally dispos- ed of there ; and that the other co-ordinate courts ought not in any way to interfere. Entertaining this impression, and as it is, therefore, in my judgment, impossible for this court to grant the relief prayed by by this bill, it must be dismissed. [No appeal was taken from this decree.] NEGROES MONICA ET AL. \ vs. DECEMBER TERM, 1848. WALTER MITCHELL ET AL. > [DEVISE TO MANUMITTED NEGROES ACT OF 1831, CH. 281.] A TESTATOR, by his will, manumitted certain negroes, and, after giving them a pecuniary legacy, devised as follows : "I will and devise that my executor shall cause to be erected on some part of my farm called Rose Hill, (the place to be selected by the above manumitted negroes,) a good, substantial dwelling house, with one brick chimney, which house, together with two acres of land adjoining thereto, I give and devise to the above manumitted negroes, and their heirs, forever." HELD That the testator intended by this devise, to provide the negroes in question with a habitation to live in, and, as this intent comes in conflict with the pol- icy of the legislature, which forbids persons in their situation from remaining 356 HIGH COURT OF CHANCERY. in the state, unless upon terms incompatible with the unrestricted enjoyment of the devise, the latter must fail. Slaves manumitted since the act of 1831, ch. 281, cannot remain in this state in a condition of freedom, though the Orphans Courts may, in their discretion, give them annual permits to remain, as by said act is provided. [The principal question presented by this case, the facts of which will sufficiently appear in the opinion of the Chancellor, was, whether certain negroes, manumitted by will since the act of 1831, chap. 281, and consequently incapable of residing within the state, were entitled to a devise of certain real estate, made to them by the same will :] THE CHANCELLOR : Without meaning to decide that a master may not, since the act of 1831, chap. 281, manumit his slaves by will, and, at the same time make to them an effectual devise of real estate, I am yet of opinion, that the devise in the will of Ignatius Semmes, upon which the question in this case arises, must fail. The will was executed in April, 1843, and the testator died soon afterwards. By it he gives freedom to several of his slaves, to each of whom he bequeathed a pecuniary legacy of three hundred dollars, of which several of them have received the sum of two hundred and fifty-nine dollars and fifty-four cents, that being the dividend of the personal assets applicable to the purpose, and it is not understood that the claim of the unsatisfied legatees to that extent is controverted. But, in addition to the bequest of freedom, and the pecuniary legacy, the will contains the following clause : "I will and devise, that my executor shall cause to be erected on some part of my farm, called Rose Hill, (the place to be selected by the above manumitted negroes,) a good substantial dwelling house, with one brick chimney, which house, together with two acres of land adjoining thereto, I give and devise to the above manumitted negroes and their heirs forever." Now, it seems to me, that the testator intended by this de- vise, to provide the negroes in question, with a habitation to live in, and, as this intent comes in conflict with the policy of MONICA VS. MITCHELL. 357 the legislature, which forbids persons in their situation from remaining in the state, unless upon terms incompatible with the unrestricted enjoyment of the devise, the latter must fail. Looking to the 3d. 4th and 5th sections of the act of 1831, chap. 281, it is manifest, that no slave manumitted since its passage can remain in this state in a condition of freedom. It is true, that the orphans courts may or may not grant slaves so manumitted annual permits to remain, but the privilege of doing so depends upon the discretion of the court, and if withheld, they are liable to be expelled at any time. The duty of the courts to give effect to devises, if it can be done, is conceded, but the law qua nihilfrustra will confer no privilege or right upon a party which he cannot enjoy, and for that reason, will never cast the freehold upon an alien heir who cannot keep it. 2 Kent's Com., 53. Being satisfied from the terms of this devise, that it was the intention of the testator to provide for these negroes a perma- nent home, and not to confer upon them a title, of which they could only get the benefit by selling, and as that intention must yield to the legal policy of the state, as declared by the legisla- ture, I should, if no other reason existed, feel bound to declare the devise void. But there is another reason. It appears that the personal assets are insufficient to pay debts and the pecuniary legacies ; and that, consequently, the latter receive dividends only. How then is the house to be erected ? Not, certainly, by having re- course to the real estate in the hands of the devisees, for they are equally objects of the bounty of the testator; and there is nothing in the will to show any such intention. Stevens vs. Gregg, 10 Gill fy Johnson, 143. The executor is charged with the duty of erecting the house, which of course was to be done out of the personal assets, and they being deficient, the duty must necessarily remain unperformed, and as the two acres of land were to adjoin the house, that portion of the de- vise must fail also, there being no house to adjoin. A decree will be signed for the payment of the pecuniary 358 HIGH COURT OF CHANGER ?. legacies, but under the circumstances of the case, the parties respectively will be required to pay their own costs. [No appeal was taken from this decree.] WEST AND COURTENAY } ADM'RS OF WEST ( > DECEMBER TERM, 1848. vs. I NATHANIEL WILLIAMS. [EXCEPTIONS TO ANSWER ALLEGATIONS op THE BILL.] EXCEPTIONS to an answer for insufficiency, can only be sustained where some material allegation, charge or interrogatory in the bill, is not fully answered. The court must see, by referring to the bill, alone, in connection with the ex- ception, that the precise matters, as to which a further answer is sought, are stated in the bill, or, that such an answer is called for by the interroga- tories. Exceptions to an answer, upon the ground that the defendant did not give a de- tailed account of the management of a trust fund which came to his hands, as agent, were overruled, because the bill only called upon him for an account of the business of the trust, and not for an account of the business of the trust and og-enci/. [James West, deceased, in the year 1805, conveyed his prop- erty to trustees for the benefit of his creditors, and was himself appointed by the trustees their agent for managing the trust. On the death of West, in 1809, Nathaniel Williams was made agent in his place, and afterwards on the death of the trustees, he was appointed trustee, and has continued to act in that ca- pacity ever since. This bill was brought by the complainants to recover from Williams certain moneys which they allege to be due the estate of their intestate, on account of his services as agent as aforesaid ; and also an allowance to his widow, one of the complainants, for dower. The case was brought before the court at this term, on exceptions to the defendant's answer, and as all the facts material to that question are given by the WEST VS. WILLIAMS. 359 Chancellor, in his opinion, it is unnecessary to make a full state- ment of the case.] THE CHANCELLOR : To the original answer of the defendant in this case, the plain- tiffs excepted for insufficiency, but before the time fixed for hearing these exceptions had arrived, the defendant filed an answer to the exceptions ; and it seems to be conceded that this answer gives all the information required by the bill, and is full and complete except with reference to a part of that spe- cified in the fourth exception, which is in the following words : "That whereas, the bill calls for a particular and detailed ac- count of the entire trust, since it came under tire charge of the defendant, either as agent or trustee, specifying the sums of money received, the date of each receipt, the amount of each receipt, and the party from whom received. The sums paid away ; the amount of each payment ; the date of each pay- ment ; and the name of the party to whom paid ; the entire ex- penses of the trust, and the particulars of such expenses." And this exception affirms, that the answer gives no such ac- count as the bill in this respect is assumed to call for. Independently of other objections, the existence and validity of which it is not proposed now to notice, it is material to in- quire, whether the plaintiffs by their bill have made such a case as entitle them to all the information called for by this excep- tion. It appears by the bill and exhibits, and the admissions of the answer, that James West, the intestate of the plaintiffs, on the 21st of November, 1805, conveyed all his property, of every description, to Humphrey Pierce and Alexander Macdonald, in trust, for the payment of his debts in the mode specified in the conveyance ; that the trustees accepted the trust and appointed James West their agent in the management thereof, who con- tinued to act as such until his death in December, 1809 ; and that there became and was due to him for advances of cash be- yond his receipts, and for his services as agent, the sum of about $9,900. 360 HIGH COURT OF CHANCERY. The bill then charges, "that after the death of the said West, the said trustees, appointed Nathaniel Williams, Esq., (the de- fendant,) their agent, who afterwards, on the death of said trus- tees, was, by a decree of Baltimore County Court, passed on the petition of Luke Tiernan and others, stating themselves to be creditors of said James West, duly appointed trustee for the estate, with the same powers which by the deed of trust afore- said, were vested in the original trustees." And it appears by a copy of the decree of Baltimore County Court, that the de- fendant was appointed trustee on the 21st of September, 1836. The bill, after some averments, not necessary to be noticed, states, that the complainants had received from the defendant, from time to time, several sums of money, amounting in the aggregate to about the principal of the said sum of $9,900, but that they had received nothing on account of interest, and that a large balance still remains due them for interest, which the defendant refuses to pay. It is chiefly to recover this balance that the present bill is filed ; and to that end, after the forego- ing statement, the defendant is called upon to give a detailed ac- count of the business of the trust, showing the amounts received by him, and the payments made from the trust fund, and par- ticularly the sums paid to the complainants ; and stating the times of the receipts and payments, and the accounts on which they were paid ; and also full and perfect answer make to the premises, &c. The answer to the exceptions is admitted to be satisfactory and full with regard to the transactions of the defendant as trus- tee ; but it is said that it does not give an account of, or any information in reference to the proceedings of the defendant whilst he acted in the capacity of agent of the first trustees. And the rule is insisted upon, that a respondent submitting to answer, must answer fully ; and there can be no doubt that such is the rule. Warfield vs. Gambril, 1 G. if J., 503 ; Salmon vs. Clagett, 3 Bland, 125. If the answer is not explicit, the defendant may be pressed by exceptions till it is so, but exceptions to an answer for insuf- ficency can only be sustained where some material allegation, WEST VS. WILLIAMS. 361 charge, or interrogatory in the bill, is not fully answered. Blaidsell vs. Stephens, 16th Fes., 179 ; Stafford vs. Brown, 4 Paige, 88. It is only where the allegations and interrogatories of the bill are not fully answered, that the defendant can be urged to a fuller response by exceptions. The 4th exception in this case takes the ground that the de- fendant was called upon by the allegations and interrogatories of the bill to give a detailed account of the trust since it came under his charge, either as agent or trustee, and the objection now urged is, that he has not given such account as agent. But upon examining the bill with some care, I do not find that he is called upon by its allegations and interrogatories to give such account, as agent. It is true, the fact of his having become, and having acted as agent is alleged; but it is not averred that he received money as agent ; arid in the interrogating part of the bill, the defend- ant is called upon to give a particular and detailed account of the business of the trusts, showing the amounts received, and payments made from the trust funds. He is not required to give such an account as agent, or trustee, as the exception as- sumes ; but simply an account of the business of the trust ; and there is nothing in the bill which negatives the idea that the defendant had not settled his account, as agent, with his prin- cipals, the original trustees, as it was his duty to do. The court must see, by referring to the bill alone, in connexion with the exception, that the precise matters as to which a further answer is sought, are stated in the bill, or that such an answer is called for by the interrogatories. Such is the principle settled by the case of Stafford vs. Brown, 4 Paige, 88, before referred to, in which the authorities upon the point seem to have been carefully examined ; and such, in my opinion, should be the rule. A plaintiff should not be allowed to except to an answer for in- sufficiency when his own bill is inexplicit and ambiguous, and it is consequently doubtful what information he seeks to obtain from the defendant. The representatives of the original trustees in this case are not parties to the bill, and hence it might very fairly be inferred VOL. 131 362 HIGH COURT OF CHANCERY. that the business of the trust, prior to the appointment of the defendant, in 1836, was not to be inquired into. Certainly, if the defendant had accounted with, and paid to his principals, the original trustees, all the money which came to his hands as agent, he would not be responsible to these plaintiffs, and, therefore, when he alone is brought before the court, and those trustees, or they being dead, their personal representatives, are not made parties, he might very naturally assume that the sub- jects to be investigated in the cause would be confined to his acts as trustee, and not to acts performed in the capacity of agent for others, who, or whose representatives, were not brought before the court. To those original trustees the de- fendant was certainly per directum, liable, and though as this case now stands, it may be that the cestique trusts are entitled to proceed directly against the defendant in respect of his trans- actions as agent, (a point not now meant to be decided,) yet certainly when the original trustees, or those who now repre- sent them, are not made parties, the bill if it meant to call the defendant to account in the double capacity of agent and trus- tee, should do so in terms free from ambiguity or equivocation. This bill, in my judgment, does not do so. It calls upon the defendant for a detailed account of the business of the trust, but does not call upon him for an account of the business of the trust and agency, for the failure to render which the exception is taken. The bill, it is true, speaks of both the trust and the agency, and very properly distinguishes between them ; but the inter- rogating part seems to be confined to a call for information, and an account with regard to the trust, and the defendant might very readily and naturally have supposed that the only relief sought against him was in his character as trustee ; and it may have been from that impression that he submitted to answer, instead of demurring. If by joining these two matters the bill would have been multifarious, and the defendant by the ambiguous manner in which they are presented, has been in- duced to forego that mode of defence, and must now give full and explicit answers to what was not fully and explicitly stat- SMALL VS. OWINGS. 363 ed, he has been placed in a position of disadvantage which more clearness in stating the plaintiffs' case, and their object, would have relieved him from. It is not meant to be said, that these matters of the trust, and agency, are so distinct and un- connected as to make it improper to unite them in the same bill; but if it was intended to join them, it should have been done in a plain manner, that the defendant might have shaped his course accordingly, under the advice of his counsel. The exception must be overruled. [No appeal was taken from this order.] PHILIP A. SMALL ET AL. vs. IARLOTTE C. D. OWIN AND RICHARD GREEN. vs - > DECEMBER TERM, 1848. CHARLOTTE C. D. OWINGS ( [AUTHORITY OF AGENT PLEADING ALLEGATION OF PART PERFORMANCE SPE- CIFIC PERFORMANCE STATUTE OF FRAUDS.] THE authority of an agent to make an agreement for his principal, need not be in writing. Where a party sets up an agreement in his bill, invalid under the statute of frauds, and the defendant by his answer, denies the agreement, it is not, per- haps, necessary for him to insist upon the statute as a bar ; but, the complain- ant at the hearing, must establish the agreement by written evidence. If the defendant admits, in his answer, the parol agreement, without 'insisting on the statute, the court will decree a specific performance, upon the ground that the defendant has thereby renounced the benefit of the statute. The principles that regulate equity pleadings, will admit a different interpreta- tion sometimes to be put upon a particular sentence, than would be required by grammatical rule. The complainant cannot rely upon the admissions of the answer, and obtain relief upon those admissions, unless he has set them out in his bill. A complainant in his bill, must put in issue whatever he intends proving, other- wise the evidence will be excluded. The Court of Chancery decrees only secundum alegata et probata. There being no allegation in the bill of part performance, the evidence seeking to establish such part "performance, was excluded. The ground upon which a court of equity decrees the specific performance of a parol agreement, respecting lands, is, that in case of a clear part perform- 364 HIGH COURT OF CHANCERY. ance by one party, it would be a fraud in the other, to refuse to perform the agreement on his part. It would be perverting the statute, from a shield against, into an instrument of fraud. When acts of part performance are relied upon to take a parol agreement for the sale of lands, (when denied by the owner,) out of the operation of the statute of frauds, full and satisfactory evidence must be offered of the terms of the agreement, and of the performance of it, on the part of the complainant. [The object of this bill was to obtain a decree against the defendant, Charlotte C. D. Owings for the specific performance of an alleged contract to sell certain land; and an injunction against the other defendant, Green, to restrain him from in- terfering with the complainants in their occupancy and enjoy- ment thereof. The bill alleged, that a contract was made between the par- ties on the 8th of July, 1844, to sell a portion of the land, and, that by a subsequent arrangement, the complainants purchased of the defendant, Owings, through her agent Turnbull, six acres of land, including that which was the subject of the first contract. The complainants filed with their bill, copies of the letter and deposition of Turnbull, showing the purchase ; and further stated, that the defendant, Green, combining with his co-defendant, Owings, to vex and harrass the complainants, had entered on the land, and erected a fence on part thereof; had been digging and removing ore therefrom ; and had hin- dered the complainants in the performance of their operations. The bill prayed, that the defendant, Owings, might be de- creed to convey the land to the complainants, and, that Green, might be restrained by injunction from putting up fences on the land and digging ore, &c. The deposition of Turnbull, set out the arrangements made in June, 1845, by him, acting for Miss Owings, with the com- plainants, to settle the difficulty arising from a misunderstand- ing of the previous contract ; and stated, that these arrange- ments with the approbation of Miss Owings, resulted in the second agreement, which was to let the complainants have six acres of land for $2000. The agreement of the 8th of July, 1844, reserved to Miss SMALL VS. OWINGS. 365 Owings, all the wood on the land, and the reversion of the land with the improvements, after all the ore should be taken out of it. The answer of Miss Owings, admitted that she signed the agreement of the 8th of July, 1844, but stated, that she was induced so to do by the misrepresentations of Geiger, the com- plainant's agent, in reference to the land to be conveyed, that she supposed she was selling five acres at $400 per acre, when in fact, the tract contained but two acres ; and, that he also misrepresented to her the determination of Green, regarding a previous contract made by her with him. And she stated, that on detecting the fraud practiced on her, she forbade Gei- ger to enter on the land, which he did notwithstanding. She denied, that she had authorized Turnbull to make any contract for her, or that she had ever entertained the intention of entrusting any of her interests to his agency ; and said, that "to protect herself from any such allegation, (as well as deny- ing the same to be true,) she alleges, that there is no writing signed by her to that effect, and she relies upon, and pleads the statute commonly called the statute of frauds." The Chancellor, in delivering his opinion, after stating the case, said :] THE CHANCELLOR : With regard to the contract of the 8th of July, 1844, as set out in the receipt of that date, I do not deem it necessary to express any opinion, as it is manifest, that that contract, what- ever its character may have been whether obtained by false and fraudulent representations or not has been merged in the subsequent agreement of July, 1845 ; which subsequent agree- ment alone, this bill seeks to enforce. And the question, there- fore, is, whether the complainants have made out a case which entitles them to the aid of this court in compelling the specific performance, by the defendant Owings, of this latter agree- ment. It is urged by the complainants' counsel, that the defendant, Owings, cannot protect herself under the plea of the statute of 31* 366 HIGH COURT OF CHANCERY. frauds, because, in her answer, in which reliance is placed upon the statute, it is levelled, not at the agreement which the bill seeks to enforce, but at the authority of the agent, Turn- bull, to make that agreement ; and as the cases show that the authority of the agent need not be in writing, the statute has no application to the case. It is not, however, I think, altogether clear, that in a case like the present, the defendant was bound to insist upon the statute of frauds at all. The answer certainly denies the authority of Turnbull, to make any agreement for the defend- ant, and, therefore, denies that any agreement binding upon her was made ; and under such circumstances, it is by no means certain, that she is not entitled to the benefit of the statute of frauds, without pleading it. In the case of the Ontario Bank vs. Root, 3 Paige, 478, it was decided, that where the complainant sets up an agreement in his bill, which would be invalid by the statute of frauds, unless in writing, and the defendant by his answer denies the agreement, it is not necessary for him to insist upon the statute as a bar, but the complainant at the hearing must establish the agreement by written evidence. If, however, the defendant in his answer admits the parol agreement, without insisting on the statute, the court will de- cree a specific performance, upon the ground, that the defend- ant has thereby renounced the benefit of the statute. Story's Equity PL, sec. 763; Blayden vs. Bradbear, 12 Ves., 471 ; Cozine vs. Graham, 2 Paige, 177 ; Jones vs. Sluby, 5 H. # /., 372. In this case the defendant certainly has not admitted the agreement set up in the bill ; and, as that agreement, being by parol, and affecting lands, is invalid by the statute of frauds, it is not so clear, that the defendant may not claim the benefit of the statute at the hearing, even though she has not insisted upon it as a bar. But I am inclined to think, that the statute is relied upon in the answer in this case. Perhaps, giving a strictly grammatical construction to that SMALL VS. OWINGS. 367 part of the answer in which the statute is interposed as a de- fence, it would be more properly applied to the authority of the agent, than to the agreement, which it is said the agent made. But, when it is recollected, that the authority of the agent need not be in writing, and, that a plea of the statute, upon that ground, would be ineffectual, it would seem to be consonant with those principles which regulate pleadings in equity, to put a different interpretation upon the sentence than would be re- quired by grammatical rule. Birley vs. Staley, 5 G. 8f /., 432. This, then, being an agreement clearly within the statute of frauds, it remains to be seen, whether the complainants have succeeded in bringing their case within the exception of the rule, that such agreements cannot be made out by parol proof, by showing a part performance of the contract ; for there can be no doubt, that such part performance will take cases out of the operation of the statute. Moale, et al. vs. Buchanan, etal., 11 G. Sf /., 314; Hall and wife vs. Hall et al., 1 Gill, 383. It has been insisted by the counsel for the complainants, that though the defendant has denied the agreement set up in the bill, she has admitted an agreement to sell five acres of land to the complainants ; and that, to that extent at least they are entitled to relief. And the case of Graham et ux., against Yates and others, is referred to as an authority for the position. In that case, however, it does not clearly appear, whether the agreement was or was not in writing. The statute of frauds does not, from the report of the case appear to be relied on, and the defendants in their answer express their willingness to convey that part of the property, admitted to have been sold, upon receiving the purchase money and interest. The case, therefore, is not an authority for the position that the complainants may, as a general rule, rely upon the admis- sions of the answer, and obtain relief on those admissions, unless they have set them forth in their bill. The contrary doctrine was expressly decided in Jackson vs. Jlshton, 11 Peters, S. C. Reports, 229, and I have seen no case maintain- ing a different rule. 368 HIGH COURT OF CHANCERY. It is stated by Mr. Justice Story, in his Treatise on Equity Pleadings, sec. 257, "that every fact essential to the plaintiff's title to maintain the bill, and obtain relief, must be stated in the bill, and of course no proof can be generally offered of facts not in the bill ; nor can relief be granted for matters not charged, although they may be apparent from other parts of the pleadings and evidence, for the court pronounces its decree, secundum allegata etprobata" And in section 28 of the same work, the author says, "it may be proper, however, to remark, that every material fact, to which the plaintiff means to offer evidence, ought to be distinctly stated in the premises, for otherwise, he will not be permitted to offer or require any evi- dence of such fact." These principles have been repeatedly sanctioned by the Court of Appeals of this state, and the rule cannot be question- edj that a complainant in his bill, must put in issue whatever he intends proving, otherwise, the evidence will be excluded. The Court of Chancery decrees only secundum allegata etpro- bata. Haywood vs. Carroll, 4 H. if /., 518. This rule is necessary not only to prevent surprise, but the abrogation of it would enable the complainant to take from his adversary the benefit of his answer, which, if responsive to the averments of the bill, would require a stronger measure of evi- dence to overcome, than if the fact to be proved was not no- ticed in the pleadings. In the treatise, of Mr. Justice Story, already referred to, sec. 264, the rule is pressed still further; it being there said, "that if an admission is made in the answer, it will be of no use to the plaintiff, unless it is put in issue by the bill ; and the con- sequence is, that the plaintiff is frequently obliged to ask leave to amend his bill, although a clear case for relief is apparent upon the face of the pleadings." In this case, the evidence of all the acts of part performance which are relied upon, to save the alleged agreement from the operation of the statute of frauds, is excepted to by the defend- ants, "upon the ground, that the bill of the complainants alleges no part performance of said supposed contract or agree- SMALL VS. OWINGS. 369 ment." And it is clear, upon the authorities which have been cited, that if the bill does not contain such allegation, the evi- dence is inadmissible, and must be excluded. Upon examining the bill in this case, it will be found to be destitute of any averment of part performance of the agree- ment, the specific execution of which, it seeks to have enforced. There is no allegation in it, or in either of the exhibits filed with it, of payment of any part of the purchase money, or of the delivery of possession, or of any other act which can by possi- bility be regarded as a part performance of the contract. The act of part performance, it is to be remembered, "must not be merely introductory, or ancillary to the agreement, but a part execution of the substance of the agreement, and which would not have been done, unless on account of the agreement ; an act unequivocally referring to, and resulting from the agree- ment, and such as the party would suffer an injury from, amounting to fraud by the refusal to execute the agreement." And unless an act, or acts of this kind, are charged in the bill, and proved or admitted, the court will not decree a specific execution of,the agreement. The bill simply alleges, that the complainants purchased of the defendant, Owings, through her agent, Alexander Turn- bull, about six acres of ground, including the piece first pur- chased, and which six acres are described in a plat filed with the bill ; but it does not allege, that one dollar of the purchase money was paid to the vendor, or that they, the vendees, were placed in, or took possession of, or made improvements, or ex- pended money on the property, or did, or suffered any act, whatever, which could by any possibility be injurious to them, in case the contract remains unexecuted. The ground upon which the court proceeds, in decreeing the specific performance of a parol agreement in relation to lands, notwithstanding the statute of frauds is, that in the case of a clear part performance of such an agreement by one party, it would be a fraud in the other to refuse to perform the agreement on his part. It would be perverting the statute from a shield against, into an instru- ment of fraud. Hamilton vs. Jones ', 3 G. fy /., 127; Mary- 370 HIGH COURT OF CHANCERY. land Savings Bank vs. Schroeder, 8 G. # /> 93 ; Moale vs. Buchanan, 11 G. # J., 314. Without meaning to express any opinion upon the character and weight of the evidence of the acts of part performance, relied upon by the plaintiffs, to take this case out of the operation of the statute of frauds ; assuming, that they had by the frame of their bill, entitled themselves to introduce such evidence, I am clearly of opinion, that the evidence is inadmissible, as not being within any issue presented by the bill ; or indeed by the pleadings on either side. No act of part performance has been alleged, and none can be proved, and, therefore, it follows that the complainants cannot have the relief they seek by their bill. The agreement also, in this case, might perhaps be regarded as deficient, in that decree of certainty and precision which would be required to enable the court to decree its specific ex- ecution. When acts of part performance are relied upon to take a parol agreement for the sale of lands, when denied by the answer, out of the operation of the statute of frauds, full and satisfactory evidence must be offered of the terms of the agree- ment, and of the performance of it, on the part of the com- plainant. Hall vs. Hall, I Gill, 383. A court of equity will not defeat the salutary intent of the statute of frauds, and it will not enforce a parol contract for conveyance of land, even where the possession thereof, has been delivered, where it does not clearly appear what the con- tract was. Wingate vs. Bail, 2 Harr. fy Johns., 76. In this case we have seen, that by the contract of July, 1844, the fee in the land therein described, was not to be conveyed to the complainants. On the contrary, the agreement in terms provides, that when the ore should be taken out of the land, the land itself was to revert to the vendor, Miss Owings. In the subsequent parol agreement of 1845, and which was for the purchase of six acres, the two acres comprehended in the first purchase were embraced ; and it may not, perhaps, be regarded as a very violent presumption, to suppose that the GEORGES CREEK COMPANY VS. DETMOLD. 371 contract in relation to the six acres, was similar in its terms to the contract in relation to the two acres. That is, that when the iron ore should be removed from the land, the land itself should revert to the vendor. And, indeed, when it is manifest from the whole case, that the land was only desirable to the plaintiffs on account of the ore it contained, it is not at all im- probable, that such was the agreement of the parties. But, at all events, it is very certain, that the terms of the agreement which this bill seeks to have enforced, do not appear ; and, as we have seen, the law is settled by the highest authority in this state, that there must not only be evidence offered fully and sat- isfactorily demonstrating the terms of the agreeme?it ; but, that those terms, so far as they are incumbent on the plaintiff, must be performed on his part before he can have a decree, compel- ling performance on the other side. The plaintiffs, by their pleadings, have not put themselves in a condition to offer this proof; and, therefore, if they have offered any such point, which I do not mean to decide, they cannot have the benefit of it. Entertaining these views, I am of opinion, that the bill must be dismissed, but without prejudice, and shall pass a decree ac- cordingly. And, under the circumstances of the case, costs will not be decreed. [An appeal was taken from this decree, but it has not yet been decided.] THE GEORGES CREEK COAL N AND IRON COMPANY / vg > DECEMBER TERM, 1848. CHRISTIAN E. DETMOLD. ) [INJUNCTION TRESPASS WASTE PRACTICE.] COURTS of equity will interfere, by injunction, even as against trespassers, if the acts done, or threatened to be done, to the property, would be ruinous and irremediable. But, an injunction is not granted to restrain a mere trespass, where the injury 372 HIGH COURT OF CHANCERY. is not irreparable and destructive to the plaintiff's estate ; but is susceptible of perfect pecuniary compensation, and for which the party may obtain ade- quate satisfaction in the ordinary course of law. In the case of waste, where there is a privity of title, as between tenants for life, or years, and the reversioner, it is not necessary for the plaintiff to show irreparable injury or destruction to the estate, to entitle him to the remedy by injunction. But, as between strangers or parties claiming adversely, there is no distinction between trespass and waste ; and, in both cases, the injury must be shown to be irreparable, before this court will grant an injunction. A bill filed by a corporation need not be under its corporate seal. That it is the bill of the corporation, is sufficiently vouched by the signature of the so- licitor, whose authority to file it need not be exhibited. [By the written agreement between these parties, dated the llth of October, 1845, the plaintiff leased to the defendant, for the term of seven years, the furnace erected on the property of the plaintiff, known as the Lonaconing Furnace, together with certain rights and privileges therein enumerated. Then follows a provision, giving the defendant exclusive use of the worked openings of the company, and the right to make other openings, &c.; and all timber necessary to the con- struction and maintenance of the works, mines and buildings, to be cut under the direction of the company. The defendant was to pay a nominal rent for the space of two years and two months from the date of the agreement, after which period he was to pay for the property, rights and privileges aforesaid, at the rate of one dollar per ton for pig or cast iron, in full for all materials mined by him and used in the manufacture of iron ; and for minerals and materials mined by him and sold to other persons he was to pay a mine rent of twenty-five cents per ton. It was further agreed, "that should a rail or other road be made by the company from the works at Lonaconing to the rail road now being constructed by the Maryland Mining Company, at any time within the said two years and two months, then the said rent of one dollar per ton should become payable on the com- pletion of said road, provided, the transportation on said road be done for the defendant by the company, at a rate not exceeding two cents and a half per ton per mile." It was also agreed, "that the said Detmold should be per- GEORGES CREEK COMPANY VS. DETMOLD. 373 mitted to make tram and other roads for the transportation of materials to and from the furnace and mines, but not so as to interfere with existing roads," &c. There was a further stipulation, that the defendant should have the right to put up additional blast furnaces, &c.; and, it was provided, that if during the term of the agreement, the de- fendant should erect works for the manufacture of bar or mal- leable iron, then the company stipulated to execute to him a lease of ninety-nine years, renewable forever. There was then a provision, that at the expiration of seven years, (unless defend- ant should entitle himself to a renewable lease for ninety-nine years,) that the improvements and erections made by the de- fendant, (except dwelling houses,) and all rail or tram roads, other than those made with the tram-plates furnished by the company, should be restored by the defendant to the company, at a valuation to be put upon them by disinterested parties. The defendant took possession under this agreement, and so continues to the present time ; but, on the 5th of September last, the complainant filed a bill in this court, charging the de- fendant with various acts, alleged to be violations of the con- tract, and of a nature which, in the opinion of the court, enti- tled the plaintiff to an injunction to prevent their repetition. These acts were, first, the cutting down of wood and tim- ber upon the lands of the plaintiff, for the purpose of erecting and constructing a saw mill, on ground adjacent to the furnace and steam engine by which the furnace is worked, with the de- sign, of employing the engine in working the saw mill ; and secondly, in cutting down wood and timber for the purpose of making a rail or tram road from the furnace, through the lands of the complainant, and other intervening lands of other parties to the rail road of the Maryland Mining Company, distant about seven miles from the furnace, and not touching at any point the lands of the complainant. The bill alleges, that the agreement gives the defendant no authority to erect a saw mill on the lands of the complainant, or to cut wood and timber thereon for that purpose, or to make a rail or a tram road, of which the termini are not at the fur- VOL. i 32 374 HIGH COURT OF CHANCERY. nace and at a mine, and which may not be necessary for the transportation of materials from the one terminus to the other; and, that the defendant is not authorized to make a road for the transportation of iron, the product of a furnace, to a market, which, the bill alleges, is the sole object in making the road in question. It further alleges, that the lands have been already greatly wasted; and, that if the defendant is not restrained by the au- thority of this court, they will be irreparably wasted and in- jured, by cutting down and removing large masses of wood and timber, which defendant has already cut, and is yet engaged in cutting, so as, in the apprehension of the complainant, there will not be left upon the lands a sufficiency for its purposes, as an appendage to the furnace. The bill, then, after charging that the defendant "had, in the prosecution of his purpose to make the road, entered upon lands rented to other persons, and, thereby, impeded the complainant in collecting the rents, proceeds to charge that the erection and employment of the saw mill in the immediate vicinity of the steam engine, furnace and their dependant improvements, will expose them all to great hazard of loss, by fire, against which, there can be no adequate security. An injunction was granted upon this bill, prohibiting the de- fendant from cutting down wood and timber, upon the lands of the plaintiff, for the purpose of constructing the saw mill, or making a tram or rail road from the furnace to the rail road of the Maryland Mining Company, or in any other direction, ex- cept to a mine on the lands of the plaintiff, or for any purpose other than the transportation of materials to and from said fur- nace and mine. Upon the argument of the motion to dissolve the injunction, the Chancellor, after making a statement of the facts of the case, of which the above is in substance a copy, said :] THE CHANCELLOR : This injunction, in the view taken by me at the time, rested upon two very sufficient grounds, assuming the contract did GEORGES CREEK COMPANY VS. DETMOLD. 375 not authorize the defendant to erect a saw mill, in the particu- lar location selected for it, nor to make a rail or tram road, and to cut wood and timber for the purpose upon the lands of the plaintiff, to connect with the road of the Maryland Mining Com- pany. These grounds were, the danger to which the furnace and its dependant improvements would be exposed from fire, by the erection and working of the saw mill in their immediate vicinity ; and the 'destruction of wood and timber to such an extent, as to leave the lands without an adequate supply for its purposes, as an appendage to the furnace. It seemed to me very clear, that in whatever light the defend- ant might be viewed, whether as a mere stranger and trespass- er, or whether there was privity of title between him and the complainant, the acts complained of were of that irreparably ruinous and destructive character, as to call for the preventive interposition of this court. There was a period, to be sure, when the courts were extremely reluctant, if not absolutely un- willing to interfere at all, as against a mere trespasser, however grievous the injury might be, upon the ground, as observed by Lord Thurlow, that the defendant being a mere stranger, might be turned out of the possession immediately. But, there seems now to be no hesitation, whatever, to inter- fere, by injunction, even as against trespassers, if the acts done or threatened to the property would be ruinous and irremedia- ble. 2 Story^s Equity, sees. 928, 929 ; Eden on Injunctions, 193. Chancellor Kent says, in Jerome vs. Ross, 7 Johns. Ch. Rep., 333, that the common law remedy by action and the assessment of damages by a jury, is, in ordinary cases of trespass, found to be amply sufficient for the protection of property ; and, that it was not advisable to introduce the chancery remedy, by injunc- tion, and to call forth the power of the court, by attachment, fine and imprisonment, except in strong and aggravated in- stance of trespass, which go to the destruction of the inheritance, or where the mischief is remediless. He further observed, in the same case, that it is not sufficient, that the act be simply per se a trespass ; but, it must be a case of mischief, and of ir- 376 HIGH COURT OF CHANCERY. reparable ruin to the property, in the character in which it has been enjoyed. And, the Court of Appeals of this state, in the case of Ame- lung vs. Seekamp, 9 G. fy /., 468, adopting the language of Chancellor Kent, in Jerome vs. Ross, say, "that an injunction is not granted to restrain a mere trespass, where the injury is not irreparable and destructive to the plaintiff's estate ; but, is susceptible of perfect pecuniary compensalion, and for which the party may obtain adequate satisfaction in the ordinary course of law. I thought it, therefore, quite manifest, that if the erection and working a saw mill, in the immediate vicinity of the plaintiff's furnace, and its dependent improvements exposed them, as al- leged, to great hazard by fire, and if the destruction of wood and timber, for making the road, would be so considerable as to leave an insufficient supply upon the lands, as an appendage to the furnace; and assuming, as I did then assume, that the agreement between the parties gave the defendant no authority for these acts, that a clear case was made out for an injunction. It was a case of irreparable ruin to the property in the charac- ter in which it had been held and enjoyed, and not susceptible of perfect pecuniary compensation. Much of the argument upon the motion to dissolve the in- junction has turned upon the construction of the contract ; and I am free to confess, that there is much difficulty in putting an interpretation upon it which will reconcile its various provisions and make it conform to what may, reasonably, be supposed to have been in the contemplation of the parties at the time it was made. Looking, exclusively, to the 5th article of the agreement, and it would seem very clear, that the defendant could make no tram or other road, except for the transportation of mate- rials to and from the furnace and mines ; and yet, there are other provisions, from which the inference is very strong, that the right to make a road, by which the defendant could reach a market, was intended to be reserved to him. He had a right, for example, to mine and sell minerals and materials to other GEORGES CREEK COMPANY VS. DETMOLD. 377 persons, upon paying a stipulated mine rent to the plaintiffs, and a road, the termini of which should be a mine and the fur- nace, would avail him nothing, so far as this right is concerned. Again, the rent to be paid by the defendant was to be nominal for two years and two months, after which a substantial rent was to be paid ; but, it was provided, that if within the two years and two months, the plaintiffs should make a rail or other road from their works at Lonaconing to the rail road of the Maryland Mining Company, then the same identical rent should become payable as would have become payable at the expira- tion of the said period of two years and two months, provided, the transportation on said road should be done by the plaintiff for the defendant at the rate mentioned in the agreement. It would seem, therefore, that the payment of this substantial rent was in the view of the parties connected with the enjoyment of the right to reach the road of the Maryland Mining Company, and by it to get to market. There are, however, other provisions in the contract which are calculated to lead us to a different conclusion ; and, if re- quired not to put a construction upon it, I would look carefully into its several stipulations, and endeavor to arrive at the inten- tions of the parties, to be collected from the entire instrument. But, I do not think the decision of this motion requires me now to expound this contract. If the defendant was a mere stranger and trespasser, it has been conceded, indeed since the case of Amelung vs. Seekamp it could not be denied, the plaintiff would not be entitled to what has been called the strong and menacing hand of an in- junction, unless he could show a case of great and irremediable mischief, which damages could not compensate. But, it is supposed, that as in this case, the relation of landlord and ten- ant exists ; that is, there is privity of title, that the court will, by injunction, stay the commission of any act, which, when committed, would be waste at common law, and that, cutting down timber is such waste. Chancellor Kent has said, and cites authority to prove, that the American doctrine on the sub- ject of waste is somewhat varied Trom the English law, and is 32* 378 HIGH COURT OF CHANCERY. more enlarged, and better accommodated to the circumstances of a new and growing country. 4 Kentfs Com., 76. In discussing the remedies now resorted to for waste, he says, the ancient remedy by writ of estrapement, and writ of waste, at common law, are essentially obsolete, and the modern prac- tice in this country as well as in England, is to have recourse to the prompt and efficacious remedy by an injunction bill, to stop the commission of waste, whtn the injury would be irrep- arable, or by a special action on the case, in the nature of waste, to recover damages. 4 Kent's Com., 77, 78. But, notwithstanding this remark, which was made, not with reference to a mere stranger or trespasser, but as applicable to cases in which there was privity of title, I am of opinion, that the court will interfere much more readily in the latter, than in the former case, and, that it is only in the case of a mere tres- pass by a stranger, or person claiming adversely, that this court will withhold its arm, unless the trespass be productive of irreparable mischief or ruin ; or to prevent a multiplicity of suits, or where the interposition of the court is required by some very special circumstances. Such is the language of the Court of Appeals in Amelung vs. Seekamp, and the distinction between the case of a stranger entering upon land as a tres- passer, and were this is privity of title, is clearly recognised by Chancellor Kent himself, in Livingston vs. Livingston, 6 Johns. Ch. Rep., 497. The counsel for the plaintiff insists, that, in the case of waste, it is not necessary to show irreparable injury or destruc- tion to the estate, to entitle him to the remedy by injunction ; and it may be, that such is the rule, where there is privity of title, as between tenants for life or years, and the revisioner ; but, I am clearly of opinion, that, as between strangers, or par- ties claiming adversely, there is no such distinction between trespass and waste, and that in both, under such circumstances, the injury must be shown to be irreparable, before this court will grant an injunction. Waste in timber, consists in cutting down, lopping, topping, or doing any act whereby it nSay be brought to decay, Coke GEORGES CREEK COMPANY VS. DETMOLD. 379 Lit., 53 A. ; and yet it is impossible to maintain, that such waste, if committed by a mere stranger and trespasser, would justify this court in granting an injunction, unless it could be shown not to be susceptible of a perfect pecuniary compensa- tion. The Court of Appeals have said otherwise they have said, the injury must be shown to be irreparable, and destruc- tive to the plaintiff's estate, and incapable of a perfect pecuni- ary compensation, in the ordinary course of law. The answer in this case, denies the charge in the bill, that the cutting down the timber required for the construction of the road will do the plaintiff irreparable injury, or leave the lands without an adequate supply of wood and timber for its pur- poses as an appendage to the furnace, and I see nothing in the evidence to overthrow or destroy the effect of the answer. It must, therefore, upon this motion, be assumed, that if the injunction is dissolved, the injuries complained of in the bill are not irreparable, but are susceptible of a perfect pecuniary compensation ; and if so, then it clearly follows, that the in- junction must be dissolved, unless it can be supported upon the ground of privity of title, so as to exempt the defendant from an action of trespass for the damage, the principle being, that if adequate redress can be had at law, the hand of this court will not be extended to prevent the trespass. It becomes, therefore, material to inquire, whether, with res- pect to the lands upon which this wood and timber are grow- ing, the defendant can be regarded as a tenant to the complain- ant. For, if he be not a tenant, then conceding that irrepara- ble injury need not be shown when there is privity to the title, to induce this court to interpose by injunction, but that it will interfere in this form in every case of waste at common law, still the writ of injunction would not be the appropriate remedy in this case. Now, I do not understand that the plaintiff leased to the de- fendant any thing more than the furnace and its appendages, and some adjacent ground sufficient to facilitate the operations of the furnace. The other rights of the defendant, under the contract, are mere easements, or privileges, to be enjoyed, 380 HIGH COURT OF CHANCERY. many of them, under the direction of the complainant. The twelfth cause of the agreement declares, that it was the object of the company in entering into the agreement, among other things, to promote leases to other parties, and the entire frame of the instrument shows that such purpose was kept steadily in view. The defendant was to have the privilege to cut timber on the lands of the company, (not within the limits of the demised premises,) necessary in the construction and maintenance of the works, mines and buildings ; but this was a mere privilege, and did not constitute the defendant, in any sense, the tenant of the lands from which the timber was to be cut. In the case of Moats vs. Witmer, 3 Gill fy Johns., 118, it was decided, that a party who had a right to enter upon pre- mises, for a particular purpose, became a trespasser, and an ac- tion of trespass could be maintained against him, if he entered for a different purpose. That it was the intention of the de- fendant which gave character to the act of entry. If made for a purpose provided for in the agreement, it was of course inno- cent, if not, he subjected himself to be sued in trespass, and to the payment of damages commensurate with the injury. So here the defendant, under the agreement, might cut down wood and timber for a particular purpose ; but, if he undertook to do so for another purpose, he is a trespasser, and must an- swer in damages for the wrongful act. It is the purpose for which the timber is cut, which gives complexion to the act. If the purpose be authorized, the act is rightful ; if not, he is a trespasser, and a jury would not fail to make him pay in dam- ages, in proportion to the injury. A court of equity, it seems to me, would be passing beyond the boundaries which have been assigned to it, if it were, in such a case, to interpose its extraordinary power of arresting acts by injunction, and, if ne- cessary, enforcing its prohibition, by attachment, fine and im- prisonment. Thinking, therefore, that the plaintiff has not made out a case of irremediable injury, so far as the cutting wood andt imber is concerned, for making the road, and that the courts of law, if GEORGES CREEK COMPANY VS. DETMOLD. 381 such cutting is not authorized, are quite competent to give re- dress, that part of the injunction must be dissolved. With regard to the injunction to prevent the cutting wood and timber, for the purpose of erecting a saw mill on the lands, it appears, by the answer and evidence, that the mill was com- plete before the service of the injunction, at least so far finished as not to require any further use of timber, nothing being neces- sary but putting the saw in the frame, and placing the band on the wheel. The injunction, therefore, in this particular, comes too late. That part of the bill which alleges the danger from fire to the furnace, and other improvements caused by the working of the mill, is explicitly" contradicted by the answer, and the evi- dence tends rather to sustain than to weaken the force of the contradiction. The complainant's counsel, apparently conced- ing that the testimony of the witnesses is against him upon this point, insists that in the nature of things, the collection of a quantity of combustible materials, in the vicinity of the fur- nace, must increase the danger from fire. Such would ordinar- ily seem to be the case, but I cannot bring myself to think, that it would be safe in the court, (unless in a case infinitely strong- er than this,) to permit its own speculations about causes and their effects, to countervail the testimony of witnesses, who, from experience and observation, must be peculiarly competent to speak upon the subject. Being of opinion, therefore, that the only grounds upon which this injunction can be supported have been removed by the an- swer and evidence, it must be dissolved, and an order will be passed accordingly. It was objected by one of the counsel for the defendant, that this injunction could not be maintained, because the bill was not under the corporate seal, nor verified by the proper officer of the company. Assuming this objection to be now in season, I do not think it a good one. The answer of a corporation is put in without oath under its corporate seal, but I do not find it any where said, that a bill filed by a corporation must be under its seal. That it is the bill of the corporation is suffici- 382 HIGH COURT OF CHANCERY. ently vouched by the signature of the solicitor, whose author- ity to file it need not be exhibited. 2 Har. 4r Gill, 374. The corporation could not swear to the bill, and I can see no good objection to the affidavit of the treasurer of the company. I think the truth of the facts set forth in the bill sufficiently veri- fied by his affidavit, and that is all that is required. 1 Bland, 180. [An appeal was taken from this order, but it was subsequent- ly dismissed by the appellant.] *> RICHARD R. PUE, PROCHIEN AMI OF MATILDA R. H. PUE AND HENRY H. PUE, MINORS $ MARCH TERM, 1849. vs. HENRY H. PUE ET AL. [CONSTRUCTION OF WILLS.] IT is the duty of the courts to give effect to every part of a will, without change or rejection, provided, an effect can be given to it, not inconsistent with the general intent of the whole will taken together. When there are two conflicting clauses, the principle is, that you are not to disturb the prior devise further than is absolutely necessary for the purpose of giving effect to posterior qualifying disposition. When a testator uses, in one part of his will, words having a clear meaning in law, and in another part, words inconsistent with the former, the first words are to be cancelled and overthrown, only, when the two provisions are totally inconsistent with each other, and where the real intention of the testator can- not be ascertained. It is now fully established, that the general intent of the testr.tor, though first expressed, will overrule the particular intent. [This case originated on the petition of Richard R. Pue, the next friend of Matilda R. H. Pue, and Henry H. Pue, infants ; stating that Philip Hammond, deceased, by his last will and testament, devised to his daughter Harriet, a tract of land in Anne Arundel county in fee simple, upon which she entered PUE vs. PUE. 383 after his death ; that she subsequently intermarried with Henry H. Pue, by whom she had two children, the said Matilda and Henry, and died in the year 1814 leaving her husband and said children surviving her; that her husband is now in pos- session of the land as tenant by the courtesy ; that it would be beneficial to all parties, but particularly the infants, that the estate be sold, and the proceeds of sale properly distributed amongst them ; and praying for such sale. Before a sale (to which Henry H. Pue by his answer agreed) was made, a peti- tion was filed in the cause by Rezin Hammond and others, ob- jecting to the proceedings, on the ground that they had not been made parties thereto, although interested as trustees for the said infants ; and denying that the said lands were devised to the said Harriet Hammond in fee simple, or that her hus- band had any interest therein. The petitioners also prayed to be made parties, which was accordingly done. A commission was afterwards issued, and certain testimony taken, relative to the propriety of a sale, the effect of which is stated by the Chan- cellor in his opinion ; and evidence was also given of a lease, to which the land was subject, but which the lessees had agreed to surrender on certain conditions, for the purpose of facilitat- ing a sale. The two clauses of Philip Hammond's will, under which the parties respectively claim, are set forth in the Chan- cellor's opinion.] THE CHANCELLOR : Upon a more careful examination of the will of Philip Ham- mond, deceased, my mind has been brought to the conclusion, that his daughter Harriett, who afterwards intermarried with Henry H. Pue, the elder, took an estate in fee, in the lands men- tioned in the proceedings in this cause ; and that, consequently, her children upon her death, took by descent from her, and not as purchasers under the will of their grandfather, the testator. The language of the devise to Harriett is confessedly full and ample to pass the fee. It is to her, "her heirs and assigns for- ever," and she must, therefore, take the entire estate, unless in some other part of the will there are provisions, which, either 384 HIGH COURT OF CHANCERY. expressly, or by plain implication, reduce the estate thus clear- ly devised, to a lesser interest. The will is a very long one. It disposes of a large estate among the children and other objects of the testator's bounty. To his sons, of whom he had several, he devises portions of his real estate for life, in express terms, with remainder in fee to their children ; but to his daughters, Matilda Hammond and Harriet Hammond, he gives the absolute and entire interest, in the most unequivocal language the devises to them being, them, "their heirs and assigns forever." There could, therefore, of course be no doubt upon the ques- tion, but for a clause in the latter part of the will, which is sup- posed to be repugnant to, or inconsistent with, the devises in fee to the daughters, and to place them upon an equality with the sons, who took estates for life only. These clauses being regarded as repugnant, the rule in the construction of wills is supposed to be applicable, which makes the posterior clause in local position, prevail, when the clauses are utterly irreconcila- ble, so that they cannot stand together ; the subsequent words being considered to denote a subsequent intention. The clause relied upon, and which, in conformity with the above rule, is supposed to reduce the fee simple estate given to Mrs. Pue, to a life estate, is as follows : "I will and desire, that in case any of my said sons or daugh- ters should die, leaving a child or children under the age of twenty-one years, that my surviving sons take the property of such child or children into their care and possession, and man- age the same for the benefit of such child or children. And, I do hereby give and devise, to my said sons who shall be so surviving, the property herein before devised to such child or children, until they shall respectively arrive at the age of twenty- one years, or marry ; in trust, however, to receive the rents," &c., thereof, for the sole use, benefit and interest of such child or children. It is supposed, and it has been argued, that by force of this clause, which is posterior in local position to the clause which contains the devise in fee to Mrs. Pue, one of the daughters of PUE vs. PUE 385 the testator, that the devise to her was converted into a life estate, merely, with remainder to her children ; and that the surviving sons of the testator are entitled to hold the property in trust for such children, until they respectively attain the age of twenty-one years or marry. It is quite possible, that if there were no provisions in the will upon which this latter clause could take effect, except on those to be found in the devises to the daughters, the construc- tion contended for would prevail, as it is the duty of the court to give effect to every part of the will, without change, or re- jection ; provided, an effect can be given to it, not inconsist- ent with the general intent of the whole will, taken together. But when, upon an examination of this will it is found, that that there are provisions upon which this latter clause can ope- rate, without at all disturbing the devises to the daughters, it is believed that there is no rule of law which requires its applica- tion to those devises. The principle appears to be, that you are not to disturb the prior devise further than is absolutely necessary for the purpose of giving effect to the posterior quali- fy ing 'disposition. 1 Jarman on Wills, 414. It was said by Lord Redesdale in Jesson vs. Wright, 2 Bligh, 56, "it must not be understood that because a testator uses in one part of his will words having a clear meaning in law, and in another part words inconsistent with the former, that the first words are to be cancelled or overthrown." This is only to be done when the two provisions are totally inconsistent with each other, and where the real intention of the testator cannot be as- certained. Corecuboven vs. Shuler, 2 Paige, 122. It is quite apparent in this case, that the testator did not in- tend to give his sons and daughters the same interest in the real estate devised to them respectively, and it would seein equally manifest, that he knew the proper language to be em- ployed in creating a life estate and an estate in fee. In the devises to each one of his numerous sons, he says in terms I give him the land described, for and during- his natural life ; and to the child or children of such son born in lawful wedlock, and their heirs forever. The same precise language is repeated VOL. i. 33 386 HIGH COURT OF CHANCERY. in the devise to each son, whilst in the clauses devising to the daughters the terms used are, to her heirs and assigns forever. In view of the marked difference in these devises; the repe- tition of the same identical language in the devises to each son, and each daughter, it would require a very strong implication to induce the court to believe, that notwithstanding the appa- rent care of the testator to give different estates to his sons and daughters, as thus manifested, still he intended to place them upon a footing of entire equality. If such was his intention, why did he give himself the trouble to repeat with scrupulous care, the same language in the several devises to his sons, and employ totally different terms, with a meaning essentially vari- ant, when he came to provide for his daughters ? We might speculate upon the motives which actuated the testator to make this difference, and by possibility hit upon the true one ; but it is quite as likely we should fall into error, and as we have no concern with his motives, and are only bound to carry his intentions into effect, as well as we can ascertain them, we will not indulge in conjectures upon the subject. That he did not mean to place his sons and daughters upon an equality with regard to the real estate devised to them, seems to me very obvious. The sons, as we have seen, took estates for life with remain- ders in fee to their children ; and upon these devises the clause creating the trust will operate, without disturbing the devises to the daughters. The cause in question was intended to operate upon property, which the testator had devised, or thought he had devised to his grandchildren ; but he had devised nothing to the grandchildren who might be born of his daughters, and, therefore, as to them, the provision in the latter part of the will, must be ineffectual, though it will operate upon the prop- erty devised to the grandchildren born of the sons. The tes- tator may have thought, that although he had given his daugh- ters estates in fee, still their children, if they left any, would take under his will, and not by descent from the mother, and that, therefore, he could place it in the hands of trustees for their use. But it is clear that he had devised nothing to the children PUE vs. PUE. 387 of his daughters, his power over the lands given to his daugh- ters having been exhausted by the devise in fee to them ; and the language in the clause creating the trust, so far as these grandchildren are concerned, proceeded upon a mistaken view of his power ; for I do not think it can be inferred from this inaccurate reference to the devise to the daughters, that he in- tended to change the nature of the estates he had previously given them, in clear and technical terms. 1 Jarman, 425. Another consequence would follow the constructions con- tended for by the counsel for the surviving sons of the testator, which, it appears to me, would be repugnant to his obvious in- tention ; and that would be, that the fee in the lands devised to the daughters, would be undisposed of by the will, and would descend upon his heirs at law. The will was made be- fore the act of 1825, ch. 119, and, therefore, the child or chil- dren of the daughters, if they take as purchasers under the will, could take no more than estates for life, which would be plac- ing them in a worse situation than the children of the testator's sons, to whom the remainders of the property devised to their fathers are expressly limited in fee simple. This construction, therefore, would defeat the general intent of the testator, which, though first expressed, shall overrule the particular intent, as is now fully established. 1 Jarman, 411, in the notes. My impression, therefore, is, that Harriet, the daughter of the testator, took an estate in fee, in the land which the petition in this case seeks to have sold ; and the remaining question is, whether it sufficiently appears, that it will be for the interest and advantage of the parties interested, that it should be sold. This of course depends upon the proof; and, upon a careful examination of it, I am of opinion, that it does so appear, and, therefore, a decree will be signed for a sale. This decree will provide for a surrender of the lease as proposed ; and as the petitioners, Rezin Hammond and others, intervened in this cause, with the leave of the court, the costs of the entire pro- ceedings will be paid out of the proceeds of the sales. [No appeal was taken from this decree.] 388 HIGH COURT OF CHANCERY. JOHN MOUSLEY ET AL. vs. MARCH TERM, 1849. EDWARD WILSON ET AL. [ACT OF 1793, CH. 43.] THE act of 1793, ch. 43, forbids the restoring the landlord to the possession of the premises, when he is proceeding under that act, only when the title is disputed or claimed by some person, in virtue of a right or title, accrued or happening since the commencement of the lease. [This bill was filed by the complainants, Rachel Mousley, widow of Richard Simpers, his infant children, and heirs at law, and John Mousley, the present husband of Rachel, to ob- tain an injunction, and- the specific performance of a contract alleged to have been made (in writing it was believed) between Edward Wilson, the defendant, and the said Richard Simpers, deceased. The bill stated, that on the 3d of December, 1842, Richard L. Simpers contracted with Edward Wilson, for the purchase of fifty acres of land in Cecil county, for $1500, to take effect on the 26th of March, 1843 ; that in part payment of the pur- chase money, he assigned to Wilson three single bills in his favor, which were collected by the latter ; that Wilson being indebted to him on several notes, and on open account, he re- leased him from their payment ; and, that he entered upon the land in pursuance of the agreement, on the 25th of March, 1843, and continued to reside thereon till his death in 1846 ; that his widow, together with his children, continued to reside thereon ; and in the year 1847, (being ignorant of her rights,) she agreed to rent the land from Wilson for one year, at $30 rent ; that notice was given her to quit at the expiration of that time, and on her refusing to do so, steps were being taken, un- der the act of 1793, ch, 43, to put her and the other complain- ants out of possession ; and, that Wilson, although offered the balance of the purchase money, (of which a small portion was still due,) on the execution of a deed for the land, had refused to accede to the proposition. An injunction was, accordingly, MOUSLEY VS. WILSON. 389 granted. The defendant denied the making of the agreement charged in the bill ; but admitted the assignment of the single bill, and the release of the sums which he owed to Simpers. He denied, however, that the assignment and release were for the purpose alleged in the bill. Leave was afterwards ob- j:ained by the complainants to take testimony, which having been filed, the case was argued before the Chancellor, on the motion to dissolve the injunction, who delivered his opinion at this term. As to the effect of the testimony, the Chancellor said :] THE CHANCELLOR: It is very clear, I think, from the evidence in this case, taken in conformity with the act of assembly, that at the time stated in the bill, an agreement was made between the late Richard L. Simpers and the defendant, Wilson, for the sale by the lat- ter to the former, of fifty acres of land ; that a part of the money was paid by Simpers in his lifetime, and, that he was in pos- session of the land, as purchaser, to the period of his death, in the year 1846. Whether the contract was in writing, as the bill alleges, the complainants were informed, is not quite clear ; but, as part performance is alleged and proved, it may not be very material ; as part performance would take the case out of the statute of frauds. Moale et al. vs. Buchanan et a/., Gill fy Johns., 314. It is said, however, that as the bill in this case alleges that the contract was in writing, it is not competent for the com- plainants to prove a parol agreement, and ask for its specific execution on the ground of part performance. The allegation, however, is very far from being explicit and positive. It is, that "the agreement was in writing as the complainants have been informed." But this, it is thought, is not the stage at which it would be proper to decide on the admissibility of the proof, upon the ground that the allegations of the bill are not so framed as to let it in ; and the court would certainly not be dis- posed to adopt a very strict rule in a case like the present, 33* 390 HIGH COURT OF CHANCERY. when the right of minors are involved, suing by their next friend. Being satisfied that a contract for the sale of the land was made between the parties, either in writing or by parol, and that a part of the purchase money was paid, and possession of the premises held by the vendee under the the purchase, and that, therefore, the merits of the case are with the complainants, it is the duty of the court to interpose for their protection, un- less some clear legal principle forbids it. The case, as has been already remarked, is free from the ob- jection founded upon the statute of frauds, and, I do not think, the technical objection, having reference to the frame of the bill, can so far prevail, at least at this stage of the cause, as to induce the court to dissolve the injunction. It is very clear, I think, that the heirs at law of Simpers, the vendee, can be in no way prejudiced by the agreement between his widow and this vendor, that she would become his tenant for a part of the premises. The relation of landlord and tenant as between them, can, therefore, have no effect upon the title of the heirs to the aid of this court. But it is said that the interposition of this court by injunction is rendered unnecessary, and, therefore, improper, by the pro- visions of the act of 1793, chap. 43, under which the proceed- ing was instituted. That the complainants may obtain ample redress, if they are entitled to retain possession of the premises, by pursuing the course pointed out by the legislature, without invoking the extraordinary powers of a court of equity. Upon reference to the act of assembly, however, I am per- suaded it will be found that these complainants, the heirs at law of Simpers, are not in a condition to avail themselves of its pro- visions. The proviso to the act is, "that if the said tenant in possession shall allege, that the title to the said lands," &c., "is disputed or claimed by some other person or persons whom he shall name, in virtue of a right or title accrued or happening since the commencement of said lease, by descent, deed,"&c., "and if, thereupon, the person so claiming shall appear, or upon a summons," &c., "shall appear before the said justices, and MOUSLEY VS. WILSON. 391 shall make oath," &c.; "and shall, with two sufficient sureties, enter into bond to the lessor or lessors, in such sum as the said justices shall think proper, not less than three hundred dollars, to prosecute his, her or their claim to the next county court," &c.; "that then, and not otherwise, the said justices shall for- bear to award restitution as aforesaid, of the possession as afore- said." It will be seen from this proviso, that the justices are only authorized to forbear restoring the landlord to the possession of the premises when he is proceeding under this act of assembly, when the title is disputed, or claimed by some person, in virtue of a right or title accrued or happening since the commencement of the lease. Unless this is the case, that is, unless the tenant can show, or there appear grounds for believing, that the title has vested in some other person, after commencement of the lease, the general rule, that a tenant shall not be permitted to dispute the title of his landlord, shall prevail, and he will be made to surrender up the possession. But in this case, the title of these infant complainants, the heirs at law of Richard L. Simpers, whatever that title may be, did not accrue, or happen after the commencement of this lease, from Wilson to Simpers. Their title accrued upon the death of their father in 1846, and the lease commenced in the spring of 1847, so that the justices could not forbear to award restitution of the possession to the landlord, if his case entitles him to the benefit of the provisions of the act of assembly, as appears to be conceded. The complainants, therefore, even if the tenant should think proper to call them before the justices, could not by any proceeding at law, prevent the possession from being restored. There would, moreover, be another formidable dif- ficulty in the way of these infant complainants. The act of assembly requires them to give bond, with sufficient sure- ties, to prosecute their claim at the next county court which shall be held in and for said county, thereafter. But these par- ties, being minors, could not give such bond, and for that rea- son likewise, could not avail themselves of the benefit of the act. 392 HIGH COURT OP CHANCERY. Thinking, then, that this court has jurisdiction in a case like the present, to enforce the specific execution of this contract, set up in the bill ; and that the equity stated for an injunction has not been removed, when the depositions are considered in connection with the pleadings, the injunction will be continu- ed until the hearing, or further order. [No appeal was taken from this order.] ELYSVILLE MANUFACTUR- ING COMPANY ^ MARCH TERM, 1849. vs. THE OKISKO COMPANY. [PAROL EVIDENCE TO CONTRADICT A RECEIPT IN A DHED ACTS OF A CORPOR- ATION HOW EVIDENCED SUBSCRIPTION TO STOCK.] IT is the undisputed law of this state, that the receipt in a deed, acknowledging the payment of the consideration money, is only prima facie proof, and may be contradicted or explained by parol evidence. * When a deed is rendered inoperative and void by disproving the consideration, expressed in it, evidence of a different consideration will not be received to set it up. But, where a party maintains the validity of a deed, and seeks, upon the alle- gation, that the consideration money has not been paid, to enforce its payment, by the assertion of the vendor's lien, evidence maybe admitted to prove that he has been satisfied for the purchase money, by receiving something else as an equivalent therefor. The rules of evidence in regard to explaining, or varying, or contradicting written evidence, are the same in courts of equity as in courts of law. It is well settled, in this country, that the acts of a corporation, evidenced by a vote, written or unwritten, are as completely binding upon it, and as full au- thority to its agents, as the most solemn acts done under the corporate seal ; and, that promises and engagements may as well be implied from its acts, and the acts of its agents, as if it were an individual. A vote or resolution appointing an agent, need not be entered on the minutes, but may be inferred from the permission or acceptance of his services. The president of one corporation subscribed for stock in another corporation. The certificate for the stock was received by the agent of the former, and re- tained by it ; and the stock, on two occasions, was voted by an officer or member of the former corporation. It was HELD that from these facts, the authority to the president to make the subscription might be presumed. ELYSVILLE MANUFACTURING CO. VS. OKISKO CO. 393 [The bill in this case, alleged, that on the 20th August, 1846, the complainants executed to the defendants, a deed of certain property, lying partly in Howard district, and partly in Baltimore county, for the sum of $25,000 ; that the defend- ants had taken possession thereof, and peaceably occupied the same ever since ; that, although a formal acknowledgment of the receipt of the purchase money was written on the deed, it had never in fact been paid ; and that, the defendants were threatening to sell the same, without regard to the rights of the complainants. The bill prayed for an injunction, to restrain the defendants from selling ; and also, that the property might be sold under the direction of the court, to satisfy the com- plainant's claim. The answer denied that the said purchase money was still due, and in explanation stated, that in the month of July, 1845, the Elysville Manufacturing Company, consisting of the five Messrs. Ely, the owners of the property in dispute, being in want of means to conduct their operations, agreed with certain merchants in Baltimore, that if the latter would join with them and contribute the sum of $25,000, the company would con- vey to the association thus formed, the said property, and in consideration thereof, hold a like sum of $25,000 in the capital stock of the association thus formed ; that the sum proposed was raised, in pursuance of the agreement ; that this associa- tion was afterwards incorporated by the name of the Okisko Company ; that the Elysville Manufacturing Company, by Thomas Ely, its president, subscribed for two hundred and fifty shares of the capital stock, amounting to the sum of $25,000, as shown by an agreement filed with the answer : that the subscribers, other than the complainants, paid for their stock in cash, and that a certificate for two hundred and fifty shares was delivered to the complainants, on the execution of said deed, and by them received, as the true and only con- sideration therefor. A great deal of testimony was afterwards filed in the cause, and exceptions to its admissibility were taken and argued at the hearing of the motion to dissolve the injunction, the nature of which will appear from the Chancellor's opinion. 394 HIGH COURT OF CHANCERY. As to the statement in the answer, that the consideration money of the deed had been paid in stock, the Chancellor said :] THE CHANCELLOR: It is the undisputed law in this state, that the receipt in a deed, acknowledging the payment of the consideration money may be contradicted ; that it is only prima Jade proof, and is exposed to be either contradicted or explained by parol evi- dence ; and in this respect constitutes an exception to the general rule, which protects written evidence from the influence of such testimony. Higden vs. Thomas, 1 H. if G., 139 ; Wolfe vs. Hauver, 1 Gill, 85. But, although the receipt in the deed, acknowledging the receipt by the vendor of the consideration, may be disproved by parol, and an action maintained by him, for the purchase money on the production of such proof, still it is insisted, that the opposite party, the vendee, is held to the proof of the con- sideration expressed ; and that he will not be allowed to sup- port the instrument, by setting up a different consideration, repugnant to that expressed. In the case of the Union Bank vs. Betts, 1 Harr. fy Gill, 175, the Court of Appeals decided, that were a deed was im- peached for fraud, the party to whom the fraud is imputed will not be permitted to prove any other consideration in support of the instrument. The consideration offered to be proved in that case, was marriage, and the attempt was to set up marriage as the con- sideration, in lieu of the money consideration expressed; but this was decided to be inadmissible, the deed being impeached for fraud. The proof, if admitted, would have changed the deed from one of bargain and sale, to a covenant, to stand seized to the use of the grantee. In the case of the Union Bank and Betts, the disproof of the consideration expressed, had render- ed the deed fraudulent and void as a bargain and sale, and by admitting the parol proof offered, this void instrument would have been re-established as an instrument of a different char- acter. ELYSVILLE MANUFACTURING CO. VS. OKISKO CO. 395 In every subsequent case decided by the Court of Appeals, the case of the Bank and Betts, is explained in this way; that is, as having decided, that when a deed is rendered inopera- tive and void by disproving the consideration expressed in it, evidence of a different consideration will not be received, to set it up. Clagett and Hill vs. Hall, 9 G. fy J., 91 ; Cole vs. Alberts and Runge, 1 Gill, 423. But the question presented in this case, is of a different description. This deed is not impeached for fraud, as in the case of the Union Bank vs. Betts, and Cole vs. Albers and Runge. The complainants in this case maintain the validity of the deed, and seek, upon the allegation, that the considera- tion money has not been paid, to enforce its payment by the assertion of the vendor's lien. And the question is, whether in a court of equity he can be permitted to assert this lien, and compel payment in this way of the consideration expressed in the deed, if it appears by the evidence, that he has been satis- fied for the purchase money, by receiving something else as an equivalent therefor. In the case of Wolfe vs. Hauver, 1 Gill, 84, which was an action of assumpsit, to recover the value of lands sold and con- veyed, but not paid for, objection was made to the admissibility of parol evidence to disprove the acknowledgment in the deed ; but the court admitted it, upon the ground, that such acknowl- edgment was only prima facie evidence, and the plaintiff, the vendor, obtained the verdict and judgment. In that case as here, the deed was not impeached for fraud, nor was the evi- dence of non-payment offered to render it inoperative and void; and the Court of Appeals say, "the introduction of the evi- dence proposed to be offered, neither changes nor affects any right transmitted in the property conveyed by the deed ; it operates no change in the legal character of the instrument, nor in any manner affects injuriously any part of the deed, as a conveyance ; the receipt of the purchase money is no necessary part of the deed, as it would in every respect be as valid with- out it as with it." The deed then being valid, and passing the legal title, and 396 HIGH COURT OF CHANCERY. the bargainer therein not impeaching it as fraudulent, but claiming the aid of this court to enforce his lien as vendor, to recover the purchase money expressed in it, the question is, shall he be permitted to do so, if upon the evidence it is shown that he has received, not in money, but in something else of value, what at the time he considered as an equivalent for the money ? Suppose, in the case of Wolfe vs. Hauver, the defendant, the purchaser, could have shown that he had paid, and the plaintiff had received, as an equivalent for the two thousand dollars, (the consideration expressed in the deed,) merchan- dise or other property ; and that such was the agreement of the parties, at the time the contract for the purchase was made? Can it be possible, that under such circumstances the com- plainant could have been allowed to recover a judgment for the purchase money ? If he could, where would be the defend- ant's redress for a wrong so monstrous and palpable? If he could not defend himself at law, because he could not in the face of the deed prove any other than the payment of the monied consideration expressed, he would be equally defence- less in equity ; because the rules of evidence in regard to ex- plaining, or varying, or contradicting written evidence, are the same in both courts ; and thus the court must unavoidably be the instrument in inflicting the grossest injustice. If in the case now under examination, the consideration of the deed from the complainant to the defendant, instead of being, as is alleged, twenty-five thousand dollars of stock in the Okisko Company, had been the conveyance by the defend- ant to the complainant of real estate of the same value, and each deed had been upon a money consideration expressed, is it possible, that upon a bill filed by one of the grantors, claim- ing the enforcement of the vendor's lien, this court must have given him a decree for a sale of the property, upon proof that the monied consideration expressed, had not been paid ? And that, the other vendor must in like manner proceed upon his equitable lien to recover his money, which in case of any serious deterioration of the property, from any cause, might be impossible. ELYSVILLE MANUFACTURING CO. VS. OKISKO CO. 397 The question in such a case, would not be, whether a deed shown to be fraudulent and void, by disproving the considera- tion expressed, could be set up by evidence of a different con- sideration ; but whether a party asking the assistance of the court to enforce the payment of the purchase money, had in fact been paid. And whether paid in money, or in something which he agreed to receive as money, cannot be material. I am, therefore, of opinion, that the evidence is admissible. It is said, however, that though the evidence may be ad- missible, there is no sufficient proof to establish either the agreement set up in the answer, or a valid subscription binding the complainant, the Elysville Manufacturing Company, to the stock of the defendant. With regard to the agreement, that the complainant would convey to the defendant the property in the deed mentioned, in consideration of receiving twenty-five thousand dollars of the capital stock of the defendant, I am persuaded, that a reason- able doubt cannot be entertained. There is, in the record, a mass of evidence upon the point, both oral and written, which, in my judgment, irresistibly con- ducts the mind to the conclusion ; and many of the well authenticated and admitted acts, and declarations of the parties can be accounted for upon no other hypothesis. It would be tedious and useless, to recapitulate the evidence upon which this conviction rests ; and I content myself with saying, that after listening with much attention to the comments of counsel and carefully reading the proof, I am unable to see how it is possible to arrive at a different result. The only remaining question relates to the validity of the subscription, by the complainant, to the capital stock of the de- fendant. The subscription, in point of fact, by the president of the former company, is not denied ; nor is it denied, that at or about the time the deed was delivered to the defendant, the attorney, in fact of the complainant, by whom the delivery was made, received from the defendant a certificate for the stock, and that this certificate has never been returned to the defend- ant since. VOL. i 34 398 HIGH COURT OF CHANCERY. The validity of the subscription is, however, questioned upon two grounds ; first, because the president of the Elys- ville Company, by whom it was made, was not authorized to make it. And, secondly, because the ten dollars on each share, required by the 8th section of the charter of the defend- ant, to be paid at the time of making the subscription, were not paid in money. In urging the first objection, it is said, that a corporation aggregate must act collectively, and by vote, or resolution. But though this may be true, it is now well settled in tnis country, that the acts of a corporation evidenced by a vote, written or unwritten, are as completely binding upon it, and as full authority to its agents, as the most solemn acts done under the corporate seal ; and, that promises and engagements may as well be implied from its acts, and the acts of its agents, as if it were an individual. Jlngel on Corporations, 60, 127, 128. In the case of the Union Bank vs. Ridgely, 1 H. 8f Gf., 426, the court say, "that the same presumptions arise from the acts of corporations, as from the acts of individuals ; consequently that the corporate assent, and corporate acts, not reduced to writing, may be inferred from other facts and circumstances, without a violation of any known rule of evidence." And again, in Burgess vs. Pue, 2 Gill, 254, the court say, "a vote or resolution appointing an agent, need not be entered on the minutes, but may be inferred from the permission or acceptance of his services." "And, that acts done by a cor- poration, which pre-suppose the existence of other acts, to make them legally operative, are presumptive proof of the latter." Such being the law upon the subject, and it being quite com- petent to this court, without the production of an express au- thority from the Elysville corporation to its president to make the subscription in question, to infer it from other acts, I am clearly of opinion, that the facts and circumstances of this case are quite sufficient to warrant the inference the fact of the receipt of the certificate by the agent of the complainant ELYSV1LLE MANUFACTURING CO. VS. OKISKO CO. 399 its retention to the present time, so far as the record informs us, and that the stock has been voted, on two occasions, by an officer or member of the corporation of the complainant, are acts which pre-suppose the existence of the other acts, to wit : The authority to the president to make the subscription. The other ground upon which the validity of this subscrip- tion is assailed, is that the ten dollars required by the eighth section of the charter to be paid at the time of subscription, have not been paid. It may be remarked, upon this objection, that it is taken by a party who holds a certificate for the stock subscribed by him, and has held it for upwards of two years. That, in consequence of this subscription, and the conveyance of the property, made by such party, the other members of the corporation have ad- vanced large sums of money upon their subscriptions, which sums have been expended upon the property now attempted to be affected by the vendor's lien ; and, that if the efforts of the vendors are successful, the moneys so expended may be en- tirely lost to the associates of the vendors. The attempt, there- fore, as it seems to me, is destitute of any support in equity. It appears to be quite apparent, that if these vendors had not subscribed for the stock, and executed the deed of the 20th of August, 1846, the other members of the corporation would not have advanced their money. The subscription was not only made, and the deed executed, pursuant to the agreement of the parties, but there has been, so far as the record discloses, an entire acquiescence on the part of the vendor, from that time until this bill was filed, in September, 1848, and not only a passive acquiescence, but an active participation on the part of the vendor in the affairs of the corporation, by attending and voting at the corporate meetings. There do not appear to be any grounds for doubting, that until this bill was filed, the de- fendant considered the complainant a stockholder in the cor- poration ; and, that the money of the other corporators was ex- pended upon the faith of that conviction, and my impression is, that conviction on the part of the defendant, was the natural result of the conduct of the complainant. 400 HIGH COURT OF CHANCERY. The case relied upon by the complainant's counsel in 1 Caine's Rep., 381, The Union Turnpike Company vs. Jenkins, is entirely unlike this case in some of its most essential features. In that case, which was an action of assumpsit brought by the company against the defendant, to recover certain payments called for pursuant to the act of incorporation, the court decid- ed that the payment of ten dollars on each share, required to be paid at the time of subscribing, was essential to the consumma- tion of the contract; and that without such payment the court was at a loss to see any consideration for the promise to pay the remaining instalments. The subscription and payment were both regarded as necessary to perfect the contract. That unless the concurrence of both could be shown, the defendant could not be regarded as entitled to the rights of a stockholder. And the Chief Justice remarked, that if the speculation had been an advantageous one, and before the first call of the pre- sident and directors the stock had risen considerably in value, they could have refused to consider the defendant as a stock- holder, on account of his not having made the payment requir- ed by the act, at the time of subscribing. This want of mutu- ality, therefore, was the ground upon which the defendant was held not responsible for the payments called in. This con- stituted the want of consideration necessary to maintain the action. But this case is not at all like that. Here, the Elysville Com- pany have received a certificate for the stock subscribed by its president, and have executed a deed to the defendant, of prop- erty, as the equivalent for, and in payment of, the stock. The contract, therefore, is no longer executory, but is an executed contract on both sides ; and the attempt here is, not to resist the performance of an executory agreement, upon the ground that some act was not done, essential to give it legal validity ; but to cancel and abrogate a contract carried into full and com- plete execution by both parties. Suppose in the case referred to, the defendant had paid up the instalments as they were called in, and had received a certificate for the stock ; would it have been possible for him, or the company, thereafter to repu- CROUCH VS. SMITH. 401 diate the subscription, upon the ground that he did not pay the ten dollars at the time of subscribing ? It seems impossible to suppose that this could be done ; and yet such is the effort here on the part of this complainant. After paying as agreed upon ; receiving a certificate for the stock ; attending and voting at corporate meetings ; and acquiescing for two years, during which large sums of money are expended by the other subscrib- ers, an effort is made to repudiate the whole proceeding and recover back the consideration paid. I think this cannot be done, and shall, therefore, dissolve the injunction ; and the de- cision of this motion necessarily disposes of the petition* filed the 3d of March last. THOMAS M. CROUCH ET vs. > MARCH TERM, 1849. HARRIET SMITH ET AL. AL.^ j. J [VALUATION OF COMMISSIONERS WOOD CUT NOT REALTY.] COMMISSIONERS having been appointed by the parties to value a certain priv- ilege of cutting wood and timber, to which the widow and son of a testator were, by his will, entitled ; it was HELD that the maxim, omnia rite esse acta prcKsumuntur, is applicable to the proceedings of these commissioners, and, that every fair intendment should be made in support of their acts. The rule which applies to the valuations made by commissioners appointed to divide real estate, that such valuations, though not conclusive and liable to be rejected, if clearly shown to be erroneous, are entitled to great respect, and are not to be disturbed, unless the weight of evidence in opposition to them is decidedly preponderating, is applicable also to the valuation made by these commissioners. Wood and timber cut down prior to the sale of the land, does not pass to the purchaser, but is severed from the inheritance, and becomes personal prop- erty. [Walter Smith, deceased, of Prince George's county, by his will, devised certain lands to his widow, and to his son Walter, *The petition referred to was filed by the complainants, stating that the property in dispute was lying idle and unused, and was going to decay, and praying that it might be sold, and the proceeds of sale deposited in court, to abide the issue of the cause. 34* 402 HIGH COURT OP CHANCERY. and gave them the privilege of cutting from his lands in Anne Arundel county, devised to his four unmarried daughters, "so much wood and timber as might be necessary for the support of the lands" devised to his said widow and son. The lands out of which this privilege was granted were after- wards sold under a decree of this court, with the understanding that the widow and son of the testator, should receive out of the proceeds of sale, so much in lieu of said privilege as the Chancellor might deem right ; and certain persons having been appointed to value the same, they reported, that the widow was entitled to receive $150 and the son $500. At this stage of the proceedings a petition was filed by Crouch and Lazenby, who had intermarried with two of the parties entitled to a share of the proceeds of the land sold, and who were also the purchasers thereof, objecting to the ratifica- tion of this report, on the ground, that Walter Smith had, after the sale of the property, removed from the premises a quantity of wood and rail stuff which had been previously cut down by him ; and praying, in the event of the sale being ratified, that the value of the wood and timber so cut, might be deducted from the proportions of the valuation to be paid by the petition- ers to said Smith. The right of Walter Smith to exercise the privilege granted him by his father's will, had never been called in question by the previous proceedings, nor was any notice given by this pe- tition of an attempt to resist it ; but at the hearing, the counsel for the petitioners contended that the testator, by a codicil to his will, had revoked the privilege, and that said Walter was not entitled to any allowance in lieu thereof. The matter of this petition having been argued by counsel, the Chancellor at this term, after stating the case, delivered his opinion, as follows :] THE CHANCELLOR : It appears by the evidence, that the wood and rails which had been thus removed by Smith, amounting probably to some sixty or eighty dollars in value, were cut by him prior to the CROUCH VS. SMITH. 403 agreement of the 8th of May, 1848, (making the allowance to Smith and his mother in lieu of their right to cut wood,) under which the decree was passed, and the only question presented by the petition and answer, is, whether the removal of this wood and rail stuff by Smith, after the sale, is a sufficient rea- son to reject the return of the commissioners ; or whether the court may not itself so far modify their return, as to order a proportion of the value thereof to be deducted from the sums to be paid by the petitioners. One of the questions, therefore, discussed by the counsel for the petitioners in the argument, is not raised by the petition ; and as the respondent Smith was not notified by it, that his entire right to cut wood and timber from this land would be disputed, and, therefore, may have omitted to offer the proof which, under other circumstances may have been in his reach, it might not be proper to permit this question to be brought into view. Smith was not apprised by the petition of Crouch and Lazenby, that the privilege given him by the will of his father, to cut wood and timber from this land, was supposed to be re- voked by the codicil. On the contrary, all the previous pro- ceedings in the cause distinctly recognized the continued ex- istence of this right, and the only question which he was called upon to meet, had reference to the effect upon the valuation of the selected appraisers of the parties, which it was alleged ought to be produced by the removal of the wood and rails in ques- tion. It is now, however, said, that the codicil to the will of the testator must be regarded as revoking altogether the privilege in question, given by the will to the widow and son of the tes- tator ; or at all events, that if it does not amount to a total re- vocation of the will in that particular, it must be considered as reducing to some extent the value of the privilege, and that, therefore, the estimate of the commissioners is excessive, and should be rejected. I am very clearly of opinion, that even if the question was properly before the court, and these petitioners could now, not- withstanding their reiterated recognition of the existence of the 404 HIGH COURT OF CHANCERY. privilege in question, deny it, and make it the subject of con- test, the objection could not be maintained. It seems to me, that if the testator had designed to revoke the privilege in question, and throw these parties altogether upon other sources of supply for their wood and timber, he would have done so in express terms and not have left it to im- plication. He certainly does not do so in express terms, nor is there such an inconsistency, or conflict, between the provi- sions of the will and codicil that both may not well stand to- gether. That the weight of the burden to be borne by the Anne Arundel county land, was intended to be diminished by the purchase of the land mentioned in the codicil, is, I think, quite apparent; and, therefore, in estimating the value of that bur- den, and the corresponding privilege, it was the duty of the parties selected for the purpose, to take that circumstance into their consideration ; and we are told by Dr. Cheston, one of those parties, that they were aware of it, and of the rights of Mr. Smith, under the will and codicil of his father, which were before them. It must, therefore, be presumed, that the proper weight was given by the commissioners to this source of supply, and more especially would the court be indisposed to reject their valua- tion for this reason, when the petitioners themselves did not make the objection in their petition, so as to give the other side an opportunity of denying it in their answer, and rebutting it by proof. My opinion is, that the maxim omnia rite esse acta prasu- muntur, is applicable to the proceedings of these commissioners, and that although they were required to report to the court, sub- ject to its further order and direction, yet still, every fair in- tendment should be made in support of their acts. They were authorized and required to make the valuation upon oath, according to the best of their judgment, and this they say they did ; and by no allegation in the petition is their judg- ment in this respect called iu question. In the case of Cecil vs. Dorsey et al., this court was recently CROUCH VS. SMITH. 405 called upon to consider the effect which should be given to the valuation made by commissioners, appointed to make partition of the real estate among the parties entitled ; and upon full ar- gument and deliberation it was decided, that though such valu- ation was not conclusive, and might be rejected if clearly shown to be erroneous, yet still it was entitled to great respect, and would not be disturbed unless the weight of evidence in oppo- sition to it was decidedly preponderating. The commissioners were regarded as occupying the double capacity of arbitrators and witnesses, and it was thought that the court would not be justified in reversing their judgment, unless upon evidence of error as strong or stronger than would induce a court of law to reject the verdict of a jury, and order a new trial. Such was the view taken by this court of the prin- ciple which should govern it, when dealing with the valuation of commissioners in cases of partition, and no reason is seen why the same rule should not be observed on this occasion, when the judgment of persons selected by the parties interest- ed, is under review. Supposing, then, that these petitioners, Crouch and Lazenby, had impeached the valuation of the commissioners in this case, upon the ground of its being excessive, (which, however, they have not done,) it. certainly would be incumbent upon them to make out a strong case to induce the court to reject it. This they have not only failed to do, but the case is wholly destitute of proof upon the point. Not a single witness has said that the valuation is too high, and the petitioners attempt to make out their case upon the hypothesis, that the commission- ers in forming their judgment, did not take into consideration the clause in the codicil to the will, by which another source of supply of wood and timber was provided for Mr. Smith. And this course of reasoning is adopted, although one of the commissioners says, expressly, in his evidence, that the will and codicil was before them, and that they were aware of the rights of Smith under them. In view of these circumstances, and looking to the evidence of Henry W. Tomlin, one of the parties in interest, identical with the petitioners, and that of George 406 HIGH COURT OF CHANCERY. W. Hilleary, one of the commissioners, who testifies that Crouch said that the valuation was lower than he anticipated, it would seem impossible that this ground of complaint can be maintained. The only objection urged in the petition is, that Walter Smith had removed from the land, after the sale, certain parcels of wood and rail stuff, which he had previously cut down in the exercise of the right given him by the will. This, it is said, was not known to the persons selected to make the valuation, and if known would have had an influence upon their judg- ment, and reduce the amount allowed by them to Mr. Smith. It is very certain that as this wood and timber had been cut down prior to the sale, it did not pass to the purchasers of the land ; it was severed from the inheritance and became, and was, personal property, and having been cut by Smith in the fair exercise of the right given him by the will, was his property ; and no reservation was required to authorize him to remove it. The commissioners made their valuation ou the 25th of Sep- tember, 1848, after the wood and rails had been removed, and it is to be presumed, their estimate was a prospective one, hav- ing reference exclusively to the future. Two of the commis- sioners say, that the right claimed, and exercised by Smith, to remove the wood and rails, if known to them would have had no influence upon their judgment ; and I can see nothing in the statement of the other which would induce me, under all the circumstances of this case, to reject the return. If Mr. Tomlin is to be believed, and there is not certainly the slightest ground to impugn his credit, which is entitled to the more weight, because he is swearing against his interest, Crouch knew, and consented that Smith should take the wood and rails away, and it is clearly shown by the evidence of Mr. Hilleary, that the valuation was less than Crouch expected. The petition must, therefore, be dismissed, and the return of the commissioners ratified. [No appeal was taken from this order.] ALBERT VS. SAVINGS BANK OF BALTIMORE. 4Q7 WILLIAM J. ALBERT AND EMILY J. ALBERT, HIS WIFE, vs - \ JULY TERM, 1849. THE SAVINGS BANK OF BALTI- MORE ET AL. [BONA FIDE PURCHASER OP STOCK TRUSTEE'S RIGHT TO TRAKSFER EXECUTED CONTRACT OF A CORPORATION FORBIDDEN BY ITS CHARTER LIABIL- ITY OF A CORPORATION ON TRANSFERS OF ITS STOCKS.] A BONA FIDE purchaser of stock in a bank or other corporation, standing in the name of trustees, without notice of the trust, will be protected, whether the trustees have the legal authority to make the transfer or not. If there be no fraud or collusion, the bank and not the transferee must abide the loss, if a loss be sustained by any act of the proper officer of the bank in the transfer of its stock, arising either from a misconception of his duty or a want of judgment. The mere addition of the word "trustee" to the name of the person who ap- pears on the books of a corporation as the stockholder, with nothing to indi- cate the character of the trust, or the party beneficially interested, will not deprive him of the legal capacity to transfer the stock, though by so doing, he may commit a breach of trust. A corporation may avail itself of its want of authority to make the contract sought to be enforced against it, though it has received and enjoyed the con- sideration upon which it was made. But, where a contract of a corporation has been executed by the parties to it, it is not competent for a mere stranger to the contract to assail it, and deprive the corporation of the advantage derived from it, upon the ground, that it was interdicted by the charter. Where the entry on the transfer book of a bank displayed the origin, nature and character of the trust, and who were the beneficiaries, it was HELD that the bank had notice of the trusts with which the stock was clothed, and would be responsible, if it permitted a transfer to be made by other persons than the trustees, who alone were authorized to make it. In such case, if the trustees themselves should offer to transfer, under circum- stances calculated so excite suspicion that they were about to abuse their trust, the bank would be bound to institute the necessary inquiry ; and if it omitted to do so, and loss resulted, the loss would be thrown upon it. Where a party transfers stock as "executor," the bank must know that there is a will of which, in Maryland, it is bound to take notice. But, where the entry upon the books of a corporation only showed that the stock stood in the names of certain persons, as trustees, without showing who were the cetuis que trusts, or what the nature of the trust was, it was HELD that this entry standing by itself, was not sufficient to put the corpor- ation upon the inquiry, and to make it responsible, on the grouud of negli- gence. 408 HIGH COURT OF CHANCERY. THE CHANCELLOR: This case presents questions of importance and difficulty. By the will of Talbot Jones, who died in the year 1834, there was bequeathed to the testator's two sons, Samuel Jones and Andrew D. Jones, and the survivor of them, a portion of his estate, in trust, for the use and benefit of his daughter, Emily Jane Jones, now Mrs. Albert, and one of the complainants, dur- ing her natural life ; to the end that she, during that period, be permitted to have and enjoy the same, and the income and profits thereof, to her own use and benefit, and without being subject to the control, power, or disposal of any husband she might thereafter have, or in any manner liable for the payment of his debts ; and for the income thereof, her receipts, whether sole or covert, are made sufficient discharges ; and by the will, the parties named as trustees are made executors. Afterwards, upon a bill filed by certain of the parties in in- terest, against the said executors and trustees, for the purpose of obtaining the direction and aid of the court, in the execution of the trust, and for other purposes, a decree passed on the 6th of November, 1841, by which it was, among other things, ad- judged, that said Samuel and Andrew D. Jones, as trustees un- der said will, should hold in trust, to and for the use of Emily J. Albert, certain property therein mentioned ; included in which are several sums of the six per cent, stock debt of the city of Baltimore, amounting together to 86,300. It does not appear from the will of Talbot Jones, whether any portion of the stock debt of the city of Baltimore was in- cluded in the devise and bequest for the use of his daughter, the present Mrs. Albert, the property so devised, consisting of other stocks which are enumerated ; portions of his real estate and the rest and residue thereof. But it does not appear that on the 20th of November, 1841, Samuel Jones and Andrew D. Jones, executors of Talbot Jones, transferred by endorsements on the certificates to themselves, as trustees, three parcels of said stock, amounting in the aggregate to the sum of $6,299 99 ; and that the dividends upon this stock from the 1st of January, 1842, to the 1st of October, 1845, inclusive, were paid to Wil- ALBERT VS. THE SAVINGS BANK OF BALTIMORE. 4Q9 liam G. Albert, the husband, upon an authority to Emily J. Al- bert, dated the 10th of December, 1841, and signed by Samuel and Andrew D. Jones, executors. It further appears that on the 16th day of October, in the year 1845, this stock was transferred to the Savings Bank of Baltimore, by the endorsation of the said trustees and filing the original certificates in the office of the register of the city, to secure the repayment of the sum of $5,500, loaned by the bank to the commercial firm of Talbot Jones & Co., which consisted at that time of the said Samuel Jones only. The original certificates, copies of which are produced, and which amount to the sum mentioned, certify, "that the corporation of the city of Baltimore is indebted to Samuel Jones and Andrew D. Jones, trustees," the several sums of money therein ex- pressed, and u^.w.1 the back of each of them an authority to transfer to the Savings Bank of Baltimore is signed by these parties, as such trustees. Certificates were issued to the bank accordingly, dated on the day of the transfer by the trustees, signed by the proper officers of the city, stating that the city was indebted to the bank in the sums of money mentioned in the certificate, and thus stood in the name of the bank until the 19th of January, 1847, when a note given by Talbot Jones & Co., in renewal of the note first given for the money loaned, not having been paid, the stock was sold by the bank for its reimbursement, leaving in its hands a surplus of $656 90, which is held for the use of the person legally entitled thereto. The bank denies all knowledge of the decree of the 6th of November, 1841, and of the trust for the female complainant; or that the stock in question stood upon the books of the city in the names of Samuel and Andrew D. Jones, as trustees ; or that the same was transferred to it by said trustees. It denies that it knew at the time or knows now, by whom the transfer was made, being satisfied with, and not looking or supposing they were bound to look beyond what appeared upon the face of the certificates ; and it may be stated without qualification or reserve, that there is nothing in the record to show that the VOL i 35 410 HIGH COURT OF CHANCERY. bank knew, or had reason to suspect, that the said stock was affected by a trust of any description whatsoever. In truth, the counsel for the complainants was not understood to ask for a decree against the bank upon the ground of either actual or constructive notice of the trust ; the right to relief, as against it, being claimed upon other grounds. Assuming that the trustees had the power to sell and trans- fer this stock, it would seem to be unquestionable that the bank, regarded as a bona fide purchaser, and without notice, will be protected. The opinion of the Circuit Court of the United States for the Maryland District, in the case of Lowry vs. The Commercial and Farmers Bank of Baltimore, and others, de- livered by the Chief Justice, in July, 1848, is very clear and full upon this point ; and the same principle was conceded in the case of Wayman and Stockett vs. The Westminster Bank, et. al., 5 Gill, 336. The mischiefs which would be consequent upon a different doctrine, in disturbing the usages of trade and business, and in depreciating the value of property of this description, are stated forcibly by the Chief Justice in the case referred to, and are distinctly presented by the court in the case of Davis vs. The Bank of England, 9 Eng. Com. Law Reps. 444. In the latter case, though the property in the stock did not pass, the transfer having been made by a forged power of attorney, yet it was decided that a bona fide purchaser from the party who committed the fraud was entitled to recover from the bank the dividend which fell due upon the stock, which consisted of consolidated annuities, made payable at the Bank of England. The Judge said in that case "If this be not the law, who will purchase stock, or who can be certain that the stock which he holds belongs to him ?" That "this facility of transfer is one of the advantages belonging to this species of property, and this advantage would be entirely destroyed if a purchaser should be required to look for the regularity of the transfer to all the various persons through whom such stock had passed." The case of Wayman and Stockett vs. The Westminster Bank, et al., may, perhaps, -be understood as going beyond the case ALBERT VS. THE SAVINGS' BANK OF BALTIMORE. 41 1 decided in the Circuit Court, for in that case the stock was transferred by parties who had no legal authority to make the transfer, not being clothed with the legal title, and having but a limited beneficial interest in the stock itself, and yet the Messrs. Wilson, who took the transfer from parties thus desti- tute of the legal capacity to sell, and having but a limited bene- ficial interest, being bona fide purchasers without notice, were protected. And it is very manifest, that unless purchasers may rely with confidence upon the certificate of the bank, as evi- dence of ownership, the difficulty of tracing out the true title and the distrust which must surround this description of property, will materially diminish its marketable value. In the case of Hodges vs. the Planters Bank of Prince Georges County, 7 G. # /., 306, the Court of Appeals say (speaking of a trans- fer of the stock of a bank made by the proper officers upon the books,) "If fraud or collusion exist, it will, as in all other cases, vitiate the act ; but if there be no fraud or collusion, the bank, and not the transferree, must abide the loss, if a loss be sustained by any act of the proper officer of the bank arising either from a misconception of his duty or a want of judgment." So far, therefore, as the Savings Bank is concerned, they be- ing bona fide purchasers without notice, it might not be ne- cessary to show that the trustees, Samuel and Andrew D. Jones, had legal authority to transfer this stock. If the city of Balti- more suffered them to make the transfer upon their books, and issued a certificate to the transferree, the city, and not the transferree, must bear the loss ; and whether the title to the stock passes or not, the latter will be protected ; unless, indeed, the party by whose negligence or default the loss was occa- sioned should be incapable of making it good ; which, of course, in this case cannot be supposed. But my opinion is, that Samuel and Andrew D. Jones had the legal capacity to transfer this stock ; though they may have committed a breach of trust in doing so. In the entry in the books of the city there was added to their names, as proprietors of this stock, the word "trustees." The language of the entry, as appears by the certificate, is, 412 HIGH COURT OF CHANCERY the corporation of the city of Baltimore is indebted to Samuel Jones and Andrew D. Jones, trustees, in the sum of," &c.; but there was nothing there to show who was the cestui que trust, or what the nature of the trust was ; nor is there any ground for believing that the officers of the corporation did know in fact. In the case of Harrison vs. Harrison, which was supposed by the court in Davis vs. The Bank of England, to be best re- ported in 2 Jltk., 121, the legal authority of the trustee to transfer was conceded ; though in doing so he might be guilty of a breach of trust, and of course responsible to the cestui que trust. The judge, in Davis vs. The Bank of England, in remarking upon this case, as reported in Jltk., says "In this report, it appears that the stock was transferred by a trustee, and if so, the question whether a transfer unauthorized by a stockholder would alter the property in the stock, could not arise, the trustee having a legal authority to transfer, although he might be guil- ty of a breach of trust in exercising that authority." The case of Stockdale vs. The South Sea Company, reported in Barnardiston, 363, has been relied on as maintaining a con- trary doctrine ; but I do not so understand it. In that case, speaking of the company, the Lord Chancellor says "How- ever, it is very certain, that these great companies are only to consider the person in whose name the stock is standing, un- less the trust of the stock is declared on their books." Now, what is meant by a declaration of the trust ? Does it mean the mere addition of the word "trustee" to the name of the person who appears upon the books as the stockholder ; or must there not be something indicating the character of the trust, or the party beneficially interested ? There never could have been a question, I presume, of the power of a person to transfer stock in whose name it stood, simply, and without any addition ; and when the courts speak of the legal authority of a trustee to transfer, they must be un- derstood as meaning trustees, who are known to be such, either by some entry upon the books of the corporation, or in some ALBERT VS. SAVINGS BANK OF BALTIMORE. 413 other way. To doubt the power of the party in whose name the stock stands, when there is nothing to show that he holds it in a fiduciary character, would seem to be impossible : and, therefore, when questions have arisen as to the legal authority of the trustee to sell and transfer, it must be understood as ap- plying to cases in which the fiduciary character appears, but there is nothing to indicate the nature of the trust or the bene- ficiaries. It is supposed to be very clear, that no relief can be had against the Savings Bank of Baltimore, except with regard to the surplus in their hands, unless the fact that Samuel Jones was a director of the institution at the time of the loan to him, renders them liable. The second proviso to the second section of the act of 1818, ch; 93, (the charter,) declares among other things, the corpora- tion shall not be authorized to loan any part of the funds de- posited to any director of said corporation. The loan in this case was to the firm of Talbot Jones & Co., of which, as it appears by the evidence, Samuel Jones, the di- rector, was the only member ; and it is insisted that, as the charter prohibits loans to directors, the contract was void, and the bank acquired and could exert no title to the stock pledged as security for the repayment of the money loaned. If the contract of loan between the bank and Jones were now open and unexecuted, and an attempt were made to enforce its performance, it appears to me the case of The Pennsylvania, fyc. Steam Navigation Co. vs. Dandridge, 8 G. 4" J-j 284, would be conclusive upon the question. The doctrines announced by the court at pages 318, 319 and 320, render it too clear for controversy, that even the corporation itself, may avail itself of the want of authority to make the contract sought to be enforc- ed against it, though it has received and enjoyed the consider- ation upon which it was made. If, then, a suit had been brought by the bank against Jones, or by Jones against the bank, upon this contract, it would, in my judgment, have been competent to either of the defendants, under such circumstances, to deny the validity of the contract, as forbidden by the charter. 35* 414 HIGH COURT OF CHANCERY. But this is not a suit upon the contract by either of the par- . ties thereto, against the other. The contract between the par- ties has been consummated and closed by a sale of the stock held by the bank and the re-payment of the money loaned. There has been a satisfaction and extinguishment of that con- tract by payment, four months before this bill was filed by a stranger to that contract ; and the question is, whether it is competent to this stranger, now that the money has been paid and the contract performed, to open it, and, upon the ground that it was interdicted by the charter, take away the money from the bank ? I cannot think so. Even in the case which has been refer- red to, of The Steam Navigation Co. vs. Dandridge, which was a suit between the parties to the contract, I am persuaded, that if either of them, after the performance of the contract, had in- stituted an action against the other, either to recover back the money paid, or for any other purpose, and had placed its right to recover upon the ground of the invalidity of the contract, the answer would have been you come too late with your com- plaint, the contract has been performed and is extinguished, and there is an end of it. I am, therefore, of opinion, that there can be no decree against the bank, except for the surplus which it holds for the party legally entitled thereto. The right of the complainants to a decree against the city of Baltimore will now be examined. The answer of the city denies all knowledge in fact of the de- cree referred to in the bill, or that the said stock was set apart and directed thereby to be held by Samuel Jones and Andrew D. Jones, as trustees, under the will of Talbot Jones, for the use of Mrs. Albert ; or that the transfer of said stock by the trustees, to the bank, was made with the knowledge of the officers of the corporation, for the use and benefit of Samuel Jones, or Andrew D. Jones, or in any manner misapplied from the purposes for which it was held in trust. And the answer likewise denies that the officers of the city corporation knew for whom the said Samuel Jones and An- ALBERT VS. SAVINGS BANK OF BALTIMORE. 415 drew D. Jones did hold said stock, and there is no evidence bringing home to the many knowledge, in fact, of any of these particulars. The question then is are there in the facts and circum- stances of this case sufficient grounds to charge the city of Baltimore with constructive notice of the violation of his duty as trustee, by Samuel Jones ? Did the city know enough to put it on the inquiry and to make it responsible for neglecting to do so, in the same manner as if it knew, in fact, of the exist- ence, character and nature of the trust ; and that the trustees, or one of them, meant to misapply the trust fund when the transfer was made ? If the city is liable at all, it is upon the ground of negligence, in not instituting the proper investiga- tion, when it was in possession of the knowledge of circum- stances sufficient to awaken its suspicions that Jones was about to commit a breach of trust by a misapplication of the trust property. In this case, as has been stated, the stock stood upon the books of the city, in the names of Samuel Jones and Andrew D. Jones, trustees ; but for whom they were trustees, and what was the nature and character of the trust, did not appear. In this respect, it differs altogether from the case of Wayman and Stockett vs. The Bank, et a/., in 5 Gill; for, in the latter case, the entry on the transfer book of the bank, displayed the ori- gin, nature and character of the trust, and who were the bene- ficiaries, and the Court of Appeals say, that "the bank by this transfer had notice of the trusts with which the stock was clothed, and that the complainants were the legal proprietors of the stock; and its officers being the trustees of the stock- holders, could not, without making the bank responsible, by any negligence or mistake, allow the title to pass to the stock by a transfer, by any other persons than the trustees, without involving the bank in responsibility." The power of the trus- tees, holding the legal title, to transfer the stock, thus standing in their names, was affirmed by the court, who maintained them to be the only persons authorized to make the transfer, and the bank was held liable, because it permitted the transfer 416 HIGH COURT OF CHANCERY. to be made by others. It is believed, however, that even if the trustees had themselves offered to transfer, under circumstances calculated to excite suspicion, that they were about to abuse their trust, the bank would have been bound to institute the necessary inquiry, and if it omitted to do so, and loss resulted, the loss would be thrown upon it. Such was the decision of the Circuit Court, and such is be- lieved to be the law. There are, however, circumstances in the case referred to in the Circuit Court, which clearly distin- guish it from this. In that case, long after the period allowed by the law in this state for the settlement of the estates of deceased persons, one of the executors, his co-executor not concurring, transferred the stock to another bank as security for the loan obtained by him. This loan being repaid, the bank, from whom the execu- tor borrowed the money, transferred the stock back to him, by the name of the commercial firm under which he was trading, by which name he subsequently transferred the same stock to himself and his co-executor, as such ; and then, shortly after- wards, the same party signing his name as acting executor, again transferred the stock to the same bank as security for other sums borrowed by him for his own use, and these latter loans not being paid by him, the stock was sold, and hence the loss. These various acts, the Chief Justice said, all appearing upon the books of the bank permitting the transfer, the purpose for which the last transfer was made, could not be doubted by the officers, familiar as they were with the usage of loaning money upon the hypothecation of stock; and in truth, as stated by the court, the bank, in its answer, impliedly admits such knowledge by saying, "if the president had known that the transfer was about to be made, he would have prevented it." In this case, there was but a single transfer, and that was made by both the parties in whose names the stock stood, and there is nothing in the answer of the city, or to be found in the evidence, upon which any presumptions can be raised, that the officers of the city knew, or suspected, that the parties making the transfer were abusing their trust. ALBERT VS. SAVINGS BANK OF BALTIMORE. 417 In this case in the Circuit Court the stock stood in the name of the deceased, Talbot Jones, and was transferred by Samuel Jones as executor, from which the bank must have known that there was a will ; of which, as the Chief Justice says, in Ma- ryland, the bank was bonnd to take notice. In this case, though the stock may at one time have stood in the name of the de- ceased, yet, from the year 1841, it had stood in the name of the trustees, and as these trusts may be, and often are, created by agreement, of which no record need be made, the same facility of ascertaining the true ownership of the property did not exist, as in the case decided in the Circuit Court, where the bank was pointed to the will of the deceased, to be found upon the pub- lic records of the state. In the case now under consideration, the officers of the city of Baltimore saw by the books of the corporation that this stock had stood in the names of these parties as trustees, from 1841 to 1845 ; and although in 1841 it had been transferred by themselves as executors to themselves as trustees, and although the transfer made by them as executors in 1841, was evidence that Talbot Jones left a will, yet as the stock continued to stand in their names as trustees from that time down to 1845, the officers of the city might well assume that the- will of the deceased had ceased to operate upon it. There is another ^circumstance in this case, which, as it ap- pears to me, draws a marked line of distinction between it and the case decided by the Circuit Court. The dividends upon this stock, from January, 1842, to Octo- ber, 1845, inclusive, were paid to the husband of Mrs. Albert, under an authority to her, signed by the executors, and from October, 1845, to January, 1847, during which period it stood in the name of the Savings Bank, they were paid to its presi- dent, Mr. Gushing, and there is no evidence whatever, that during that time, or until the filing of this bill, in May, 1847, any inquiry or complaint was made by the complainants to the city, on account of this diversion of their accustomed receipts. The bill alleges that in May, 1846, one of the complainants informed Mr. Gushing that this stock was held by the trustees, 418 HIGH COURT OF CHANCERY. in trust for the female complainant ; but this allegation is ex- pressly denied in the answer of Mr. Gushing, and there is no evidence in support of the averment. The answer admits that there was a conversation between William J. Albert and the re- spondent, in the spring of 1846, in reference to a parcel of the stock of the Water Company, held by the bank as security for money loaned to the firm of Talbot Jones & Co., in which he, Albert, intimated that the stock was his, or that he had some interest in it, but the answer wholly denies that the conversa- tion related to the stock now in controversy. When this conversation was held, two dividends had accrued on this stock, those for January and April, 1846. They had accrued and been received by the Savings Bank, since its trans- fer to them in October, 1845, and it is difficult to believe that Mr. Albert, who had been accustomed to receive the dividends himself, did not know at that time, of the transfer of the stock to the bank : and yet he said nothing about it, though setting up a claim to another parcel of stock which had been placed with the bank by the same parties. Samuel Jones, in his answer, says, that he transferred this stock to the Savings Bank in 1845, with the full knowledge and consent of said Albert, and the presumption is, I think, very strong that this is the case ; as, otherwise, it can scarcely be doubted, inquiries would have been instituted by him, and the stock traced to the bank; and if Albert, the husband, knew it, and consented to it, it is certainly not pressing presumption to an unwarrantable extent to presume that Mrs. Albert also knew and consented to it. It is not at all reasonable to suppose, that the loss of the in- come and dividends upon this stock would not have excited inquiry; and inquiry of the officers of the city would have led directly to a knowledge of the party to whom the stock had been transferred. It may be, that if the complainants had (in the latter part of 1845 or in the spring of 1846, when, I think, they must have known of the transfer of this stock) adopted the proper steps, or given the necessary information to the city and bank, that no loss would have occurred. ALBERT VS. SAVINGS BANK OF BALTIMORE. 419 Samuel Jones did not stop payment until September, 1846, or petition for the benefit of the insolvent laws until January, 1847 ; and it may very well be said, if the officers of the bank and the city had been put on their guard in due season, they might have secured themselves from loss, if, under the circum- stances of the case, they would have been liable. This was not done, and it was not until after the failure of Jones that this bill was filed, which, for the first time, brought to the knowledge of the defendants the facts upon which relief against them is asked. I do not think that the entry upon the books of the corpora- tion, that this stock stood in the names of Samuel Jones and Andrew D. Jones, trustees, was standing by itself, sufficient to put the city upon the inquiry, and to make it responsible upon the ground of negligence ; and I am not prepared to say that the fact that another received the dividends upon the order of the trustees, would have that effect. But, be that as it may, there has, I think, been negligence, if not acquiescence, on the part of the cestui que trusts quite equal to that imputed to the city, and, therefore, I do not think they are entitled to relief. The bill will be dismissed as against the city and Gushing, and as against the bank there will be a decree for the surplus now held by it. [This decree was appealed from, but no decision has yet been had upon the appeal.] 420 HIGH COURT OF CHANCERY. GOODBURN AND WIFE } vs. S- JULY TERM, 1849. STEVENS ET AL. J [PARTNERSHIP ELECTION op INTEREST OR PROFITS DOWER AGE OF WIDOW ARREARS OF DOWER PAYMENT OF MORTGAGE TRUSTEE 5 * COMMISSIONS.] WHERE one of several partners dies, if the surviving partners continue the trade or business, it is at their own risk ; and they will be liable, at the op- tion of the representatives of the deceased partners, to account for the profits made thereby, or to be charged with interest on the deceased partner's share of the surplus, besides bearing all losses. Where the administratrix of a deceased partner filed a bill against the surviv- ing partners, alleging that the business of the partnership had been carried on under the old name, and large profits made, and praying that her intes- tate's share of such profits might be paid over to her, as administratrix, HELD That by such a proceeding, she had elected to claim profits, and not interest , and, that a party cannot claim profits for one period and interest for another. The real estate of a partnership, though regarded in a court of equity as per- sonal estate for all partnership purposes ; yet, in the absence of an express or implied agreement, indicating an intention to convert it into personal es- tate, will, when the claims against the partnership have been satisfied and the partnership accounts adjusted, be treated in a court of equity, as at law, as real estate, and be subject to the dower of the widow of a deceased partner. It having been decided that a widow was entitled to an allowance out of the proceeds of sales of partnership lands, in lieu of dower; and the husband having died in 1825, and the sale not having been made until 1845, it was HELD That the age of the widow at the death of her husband should be taken, in fixing her allowance under the chancery rule. The right of a widow to dower in partnership property, is suspended until the purposes of the partnership are accomplished, by paying all claims against it, and adjusting the accounts. She cannot, therefore, claim rents and profits from the death of her husband. A mortgage debt must be paid out of the personal estate of the mortgagor ; and, if that is not adequate, then the balance should be paid out of that por- tion of the real estate contained in the mortgage. When a court of equity has control of both personal and real estate, it will, in order to prevent circuity and save expense and delay, apply them in the or- der in which, as between the heir and executor, they are liable. When several sales are made at different times, the commissions of the trustee should be calculated upon each sale separately, and the sales are not to be treated at if made at one time. GOODBURN VS. STEVENS. 421 [On the 15th of January, 1830, Ann B. W. Hayes, who has since intermarried with Joseph Goodburn, filed her bill in this court, stating, that on the [9th of December, 1824, she inter- married with Samuel Hayes, who, on the 20th of May, 1825, died intestate, without issue, possessed of 47-100ths of a manufacturing establishment in Cecil county, called Elk Forge, consisting of several thousand acres of land, with the various buildings thereon, on Big Elk Creek, and land and valuable personal property on Little Elk Creek, and in the states of Dela- ware and Virginia ; that the business of the firm in which the property, both real and personal, was employed, had been carried on for many years in the name of Samuel Hayes & Co.; said firm at the death of Hayes, consisting of himself, Samuel Stevens and wife, Maria Rudolph, Thomas Hayes, Elizabeth B. Hayes, Robert M. Hayes, and Geo. Hayes ; of whom, all except Samuel Stevens and wife, were his heirs and repre- sentatives, as were also the complainant and Henry M. Hayes, the latter of whom, sold his interest in 1827, to the other sur- viving partners, except Stevens and wife ; that Samuel Hayes, acquired 25-100ths of his interest, by purchase from William Scale, to whom he mortgaged the same to secure the payment of the purchase money, of which there was due at his death, $5000 ; that his other debts amounted to about $700, and his property, independent of his partnership interest, was only worth about $500 ; that at his death, the debts due the firm exceeded those owed by it, and, that there were large profits for division. That failing in her repeated efforts to obtain an allowance of her interest, the complainant, on the 26th Septem- ber, 1825, took out letters of administration on her deceased husband's estate, since which time, she had frequently tried, without success, to obtain a settlement with the surviving partners ; that the latter continued to conduct the business of the establishment under the same name, with James Jackson, as manager ; that they had made extensive improvements, and, as complainant believed, with the profits of the partner- ship ; and, that they had divided amongst themselves annually, a sum exceeding $3000, whilst complainant had not received VOL. i 36 422 HIGH COURT OF CHANCERY. $100, and Scale had only been paid interest on the residue of his debt. The bill concluded with a prayer, "that the said surviving partners may be restrained from using the said part- nership name of Samuel Hayes & Co.; that they may be en- joined from using the share or proportion of the personal prop- erty which belonged to the said Samuel Hayes ; that a re- ceiver may be appointed to receive the profits of said concern, until this matter shall be fully considered in this honorable court ; that the said surviving partners may be compelled to render a full, true, and perfect account of all the transactions of said concern ; that they may be compelled to pay off, and satisfy the debt due the said William Scale from that portion of said concern which was originally bought of him ; that they may be required to pay over to your oratrix as administratrix of the said Samuel Hayes, his share or proportion of the per- sonal property of said concern, as well as his share or propor- tion of the profits which have accrued thereon since his death ; that your oratrix may have a reasonable and just allowance made for her dower in her said husband's interest in said lands and premises; and, that the said surviving partners, and the said James Jackson, their manager, may answer this bill," &c. On the 18th of the same month, an injunction was granted as prayed, after which, the defendants filed their answers. The answer of Samuel Stevens and wife, with which the others mainly corresponded, admitted the interest of said Hayes, and its amount, but stated, that the purchase money of the one-fourth purchased of Scale, had not been paid, and submitted that the same ought to be paid out of the personal estate ; they admitted the marriage of the complainant, the death of her husband, intestate and without issue, the grant of letters of administration to his wife, the names of his heirs, the use of the partnership name, the names of the partners, and the conveyance by Henry M. Hayes. They stated, that Hayes' interest at his death, went to his heirs, who consented to a continuance of the partnership ; they refused to admit the com- plainants' right to control the affairs of the firm after the death of her husband ; denied their opposition to a settlement with GOODBURN VS. STEVENS. 423 her, stating, that they had been, on the contrary, anxious for it; and admitted the improvements charged in the bill, but pre- sumed complainant could not object to them, as the estate did not descend to her. The defendants further stated, that the personal property belonging to the partnership at the death of Hayes, was used and consumed in the course of business ; they denied that there would be any balance due to Hayes on a settlement, (as the expenses of the concern, which were great, were by consent paid out of the profits to save the realty,) or that there had been any division of the profits since his death. The defendant also stated, that Hayes had been the active manager of the firm, for which he received a salary, that he had drawn his proportion of the profits, and was at his death in- debted to the firm ; and objected to the appointment of a re- ceiver. At July term, 1830, exceptions to the answers were filed by the complainant, and a motion to dissolve the injunction was made by the defendants. On the 2d July, these exceptions were overruled, but the injunction was dissolved, so far as it prevented the defendants from using the deceased's portion of the partnership property. In August, 1841, Mrs. Hayes, having in the meanwhile in- termarried with Joseph Goodburn, proceedings were instituted by which he was made a complainant in the cause, and on the 31st of the same month, a decree was passed, by consent, in a creditor's suit instituted by Sewall and others against said S. Hayes and others, for the sale of the partnership property men- tioned in these proceedings, and appointing a trustee for that purpose. At different times previous to July term, 1844, this cause was, by order of the Chancellor, consolidated with two other cases affecting the partnership property, one of which was the said case of Sewall et al. vs. Hayes, et al., whereby the assignees of William Scale's mortgage and the creditors of the partnership were made parties hereto ; and at the said term the Chancellor passed a decree in all three of the consolidated cases for a sale of all the property for the benefit of all parties, 424 HIGH COURT OF CHANCERY. for a settlement, and reserving the equities of the parties as to the distribution of the net proceeds of sale. On the 21st Octo- ber, 1845, after much proof had been taken, the special auditor filed his report, in which he assumed, that the partnership was insolvent in 1825, at the death of Hayes, and was closed at that period, and not afterwards continued ; and that the complain- ant Mrs. Goodburn was entitled from that time to the 8th De- cember, 1841, to interest on one-third of Samuel Hayes' inter- est in the property, estimating its value by testimony taken un- der the first commission. Various exceptions were taken to this report, both by the complainants and the defendants, and on the 19th January, 1846, the Chancellor (BLAND) passed the following order : "Ordered, that this case be, and the same is hereby again referred to the said special auditor, with directions to restate the accounts from the pleadings arid proofs now in the case, and from such other proof as may be laid before him. It must be recollected, that the persons of whom the partnership in the proceedings mentioned, has been constituted, are to be consid- ered as having been endowed with two separate legal capaci- ties ; first, with that of an associated conventional capacity as a partnership ; and, secondly, with that of a natural capacity belonging to them as individuals. And that as the social arti- ficial capacity of a partnership is entirely distinct from the nat- ural capacity of each individual ; and as each legal capacity stands in all cases as a distinct person, these two capacities of these parties must be carefully observed, and treated through- out this case, as distinct persons in respect to all property be- longing to the partnership, and so long as such property may be so held, or be continued under the control of this court in this suit. The accounts are to commence with the original for- mation of the partnership, and to be brought down through all its mutations, by any changes of the persons by whom it was constituted, unto its final dissolution by the decree of the thirty- first day of August, in the year eighteen-hundred and forty-one. The partnership might have been treated as having been termi- nated by the death of Samuel Hayes, deceased ; but his repre- GOODBURN VS. STEVENS. 425 sentatives, so far frora asking for its then dissolution, have, some of them, insisted on its continuance ; and his widow and ad- ministratrix has only called for a settlement on the apparent presumption of its continuance ; the partnership must, therefore, be taken to have been continued on its then existing terms, by the express or implied consent and contract of all concerned. All the property belonging to the partnership, of whatsoever nature or kind, must be considered as its estate ; and being so held by those individuals in their associated capacity as a part- nership, must be treated as liable, exclusively, and in the first place, to none other than claims against that artificial capacity or person. And, consequently, whether such property of the partnership be considered as real or personal estate, none of it can be held liable to the claim of a creditor, dowress, heir, devisee, widow, legatee, or next of kin, of any living or deceased partner, in his natural capacity, until all claims against the partnership have been satisfied, and the whole concern has been so completely wound up and adjusted, as to enable each member of the partnership to take his due share of the surplus or residuum in his individual or natural capacity. And as a widow of a deceased partner can have dower assigned to her out of none other than such real estate of inheritance of which her husband had been, in his natural capacity, sole seized 'dur- ing the coverture ; and as it does not appear that Samuel Hayes, deceased, was at any time so seized of any real estate held by the partnership, as in the proceedings mentioned, his widow can have no right to dower, as claimed by her bill of complaint. And recollecting, moreover, that as no one of the partners, or his representatives can be entitled to anything more than his due share of so much of the partnership property as remains after all its concerns have been entirely closed, it is only that residuum which is to be distributed according to its true value ; and as that true value can only be ascertained by an actual sale, it has been deemed necessary in all cases, to have it all sold, whether consisting of real or personal estate, so as to make an accurate distribution of the net proceeds of sale, considering the whole as personalty, among the partners according to the 36* 426 HIGH COURT OF CHANCERY. terras of the contract of partnership, or amongst the legal rep- resentatives of a deceased partner, according to their legal rights and interests. "And the parties are hereby authorized and allowed to take testimony in relation to such accounts, before any justice of the peace, on giving three days notice as usual ; provided, that such testimony be taken and filed in the chancery office, in this case, on or before the tenth day of April next." [From this order the complainants took an appeal under the act of 1845, chapter 367, which having been argued before the Court of Appeals, MARTIN J. at June Term, 1847, delivered the following as the opinion of the Court :] This is an appeal from the order of the Chancellor, of the 19th of January, 1846, instructing the Auditor as to the prin- ciples upon which he was to state the account between the parties. By this order the Chancellor has determined : First, That the partnership in which Samuel Hayes was con- cerned, was to be treated as subsisting until the 31st of Au- gust, 1841, when it was dissolved by the decree passed in the case of the creditor's bill ; and that the accounts of the part- nership were to be brought down to that period. Secondly, That the entire estate of the partnership, compris- ing both its real and personal property, was to be regarded as a fund applicable exclusively, and in the first place to the pay- ment of the debts of the partnership in preference to all other claimants. And thirdly, that the real estate held and owned by the part- ners, and used by them in the business of the partnership, was to be considered as converted for all purposes into personalty as possessing, in all respects, the qualities and incidents of personal property, and therefore not subject to the claim of dower. The appeal has been prosecuted at this stage of the cause, in pursuance of the act of Assembly of 1845, ch. 367, enlarg- GOODBURN VS. STEVENS. 427 ing the rights of appeal in cases where decrees or orders to account have been passed by the chancery courts; and a pre- liminary point was raised by the counsel, with respect to the questions which were properly open for adjudication on this appeal. The first section of the act provides "That an appeal may be taken from any decree or order of the court of chancery, or county court sitting as a court of equity, determining a ques- tion of right between the parties, and directing an account to be stated on the principle of each determination :" and it is clear, that in our examination of the order, we can only inquire into the correctness of the principles announced by the Chan- cellor as the basis of the Auditor's report. The right of appeal from these interlocutory orders has been conferred only where a question of right has been determined between the parties, and an account directed to be stated on the principles of such de- termination and it must be evident that we could not consider any other questions than those determined by the court below for the government of the Auditor, without exercising original jurisdiction. A power incompatible with the character and at- tributes of this tribunal, and certainly not intended to be com- municated by the statute under which this appeal has been taken. With respect then to the first question decided by the Chan- cellor, we think he erred in regarding this partnership as sub- sisting until the 31st of August, 1841. The doctrine upon this subject has been stated with clearness and accuracy by Judge Story in his late work on partnership. He says, "although the partnership be fixed for a particular term or period, yet it is always understood as an implied con- dition or reservation, unless the contrary is expressly stipulated, that it is dissolved by the death of either of the partners at any time within the period. This doctrine is founded in equi- table principles, and is the natural result of the peculiar ob- jects of the contract. Every partnership is founded in a delec- tus persona, which implies confidence and knowledge of the character, skill, and ability of the other associates; and their 428 HIGH COURT OF CHANCERY. personal co-operation, advice and aid in the management of the business. The death of any one partner necessarily puts an end to such aid and co-operation. If, therefore, the part- nership were not put an end to by the death of any one of the partners, one of two things must follow : either that the whole business of the partnership must be carried on by the surviving partners exclusively, at the hazard of the estate and interests of the deceased partners, or else, that the personal representa- tive of the deceased, totoies quoties, who may be a stranger, wholly unfit for, and unacquainted with the business, must be admitted into the management. The law will not force either of these alternatives upon the parties, but it presumes, in the absence of all contrary stipulations, that by a tacit consent, death is to dissolve the partnership, because it dissolves the power of a personal choice, confidence, and management of the concern." In Crawshay vs. Maule y 1 Swans, 508, Lord Eldon said, "The doctrine that death ends a partnership, has been called unreasonable. Much remains to be considered before this ob- jection can be approved. If men will enter into a partnership, as into a marriage, for better and for worse, they must abide by it; but if they enter into it without saying how long it shall endure, they are understood to take that course in the expecta- tion, that circumstances may arise from which a dissolution will be the only means of saving them from ruin ; and considering what persons death may introduce into a partnership, there is strong reason for saying that such should be its effect. Is the surviving partner to receive into the partnership, at all hazards, the executor or administrator of the deceased, his next of kin, or possibly a creditor, taking administration ?" And the Su- preme Court have declared in Scholefield vs. Eichelberger, 7 Pet. 594, "that although the liability of a deceased partner, as well as his interest in the profit of a concern, may, by contract, be extended beyond his death ; yet, without such stipulation, death dissolves the concern." The same doctrine is announced in Vullimay vs. Noble, 3 Mer. 614 ; Crawford vs. Hamilton, 3 Mer. 136 ; Gratz vs. Bayard, 11 S. # Raw., 41 ; Dyer vs. GOODBURN VS. STEVENS. 429 Clark, 5 Metcalf, 575, and in other cases to which it is unne- cessary to refer. It must, therefore, be regarded as an estab- lished principle resulting from the nature of the contract, and necessary for the protection both of the rights of the surviving partners, and the estate of the deceased, that the death of either of the partners produces, ipso facto, a dissolution of the concern ; unless there is inserted in the contract some provision imposing upon the surviving partners, and the representative of the de- cedent, an imperative obligation to continue it. There is to be found in this contract of partnership no such stipulation, and we think that the death of Samuel Hayes, on the 20th of May, 1825, is to be treated as the true period of the dissolution. The counsel for the appellee have, however, contended, that if this partnership was continued from the death of Samuel Hayes, to the 31st of August, 1841, with the express or implied consent of Mrs. Hayes, the order of the Chancellor in this re- spect was correct, and that the consent of the widow and ad- ministratrix, to its continuation is to be inferred from her con- duct, and especially from the character of her bill, in which she claims a right to participate in the profits earned by the partners, between the death of her husband and the period of the institu- tion of her suit. Samuel Hayes died on the 25th of May, 1825. On the 26th of September, of the same year, Mrs. Goodburn obtained letters of administration upon his estate, and on the 15th of January, 1830, she filed her bill, in which she charges, "that the per- sonal property of her husband, had been employed in the busi- ness of the partnership, by the defendants," and prays, "that they may be compelled to account for the profits made since his death, out of the personal property, and that she may have a reasonable and just allowance for her dower in the lands." And assuming the facts stated in the bill to be true, it was the un- questionable right of the administratrix, at her election, to de- mand either the actual profits made by the survivors from the use of her husband's share of the prrtnership property, or inter- est upon the capital thus employed. In Story on Part., sec. 343, it is stated "That dissolution 430 HIGH COURT OF CHANCERY. by death puts an end to the partnership, from the time of the occurrence of that event. It completely puts an end to the power and authority of the surviving partners, to carry on for the future, the partnership trade or business. It is, therefore, the duty of the surviving partners, to cease altogether from car- rying on the trade or business thereof; and if they act other- wise, and continue the trade or business, it is at their own risk, and they will be liable, at the option of the representatives of the deceased partner, to account for the profits made thereby, or to be charged with the interest upon the deceased partner's share of the surplus, besides bearing all the losses." The rule is also correctly given in a late treatise on the subject. Gary , 117. The author says, "where the surviving partners continue the business, employing in it the share belonging to the represen- tative of the deceased partner, and no express direction has been given by the deceased, relative to the continuance of the business, the party entitled to the share of the deceased, is at liberty to choose, either to receive the legal interest on the capital so employed, or to take the profits that have arisen from the use of such capital ; and in order to enable a party so inter- ested to determine his choice, a decree will be passed directing an inquiry, whether the account of interest or profits will be most advantageous ; but unless under particular circumstances, the party having the choice, cannot elect the interest for one period, and the profits for another, but must elect to take one or the other, for the whole period." In Crawshay against Collins, 15 Fes., 227, Lord Eldon said, "If the surviving partners do not think proper to settle with the executor and put an end to the concern, but to make that which is in equity the joint property of the deceased and them, the foundation of increased profit, they must be understood to pro- ceed on the principle which regulated the property before the death of their partner." The same doctrine is declared and illustrated in the cases of Brown vs. Brown, 1 P. W., 140; Hammond vs. Douglas, 5 Fes., 539; Ex-Parte Ruffin, 6 Fes., 119; Brown vs. De Tasht, 1 Jacob, 295. Heathcote vs. Hulme, 1 Jac. 4r Walk., 122, and is too firmly established to be questioned. GOODBUKN VS. STEVENS. 431 And, therefore, it was the undoubted privilege of the appel- lant on the case made by her bill, to demand the profits pro- duced by the employment of her husband's share of the property, from his death to the institution of her suit ; the assertion of this claim cannot be justly regarded as evidence of an assent, on her part, to the continuation of the partnership, so as to im- plicate her as a partner, or as a ratification of the acts of the surviving partners. We cannot perceive anything in the conduct of the appel- lant evincive of her assent to the continuance of this partner- ship ; and this question is placed beyond controversy by the commanding fact, that in her bill she expressly prays that the defendants may^be restrained from using in the business of the concern, her husband's proportion of the personal estate. There is another objection to the position taken by the coun- sel for the appellees, that cannot be overcome ; and that is, that it is manifest from the answers of the surviving partners, that they never consented to receive the administratrix into the firm as a continuing partner. While they acknowledge their liability to account to her for the partnership property as it ex- isted at the death of Samuel Hayes, they reject the idea, that she possessed any authority to interfere in the management of the affairs of the company subsequent to that period. We have already seen that a contract of this description is one of personal confidence, in which the ability, skill, and character of each partner is supposed to enter into the consideration of his asso- ciates in the formation of the connection, and that, therefore, there can be no legal continuance of a partnership dissolved by death, in the absence of a new assent on the part of the surviv- ors. You cannot impose upon the surviving partner, the obli- gation to introduce into the partnership the representative of his former associate. Thornton vs. Dixon, 3 Bro. Ch. R., 200 ; Marquand vs. New York Manufacturing Company, 17 Johns. , 535 ; Pearce vs. Chamberlain, 2 Ves. Sr., 33. We think, therefore, that the death of Samuel Hayes, on the 20th of May, 1825, is to be treated as the period of the disso- lution of this partnership, and that the accounts are to be taken 432 HIGH COURT OF CHANCERY. at that time, for the purpose of ascertaining the condition of the partnership, and the rights of the respective partners to the joint property. The second and third propositions determined by the Chan- cellor relate to the question, as to what extent and for what purposes the real estate of this partnership was to be treated as converted into personalty ? We consider it as now established, by at least a preponderance of authority, and upon proper and just grounds, that the whole partnership estate, whether con- sisting of real or personal property, is to be regarded in the view of a court of equity, as a consolidated fund, to be appro- priated primarily and exclusively to the satisfaction of all the partnership engagements. In Fereday vs. Whightwick, 4 Con. C. R.j 319, the master of the rolls said "The general princi- ple is, that all property acquired for the purpose of a trading concern, whether it be of a personal or real nature, is to be con- sidered as partnership property, and is to be first applied ac- cordingly, in the satisfaction of the demands of the partner- ship." In Hoxie vs. Carr, 1 Sum., 183, Mr. Justice Story, in deliv- ering the opinion of the court, says : "A question often arises, whether real estate purchased for a partnership is to be deemed for all purposes personal estate, like other effects. That it is so as to the payment of the part- nership debts, and the adjustment of partnership rights, and winding up the partnership concerns is clear, at least in the view of a court of equity." And again he says: "The question, however, in the present case, is not whether real estate, when it is partnership property, becomes to all in- tents and purposes, in cases of intestacy and wills, personalty, but whether it be so treated in equity as between the partners themselves and the creditors of the partnership. It seems to be the established doctrine of courts of equity, that it is to be treated as personalty, as between the partners and their credit- ors, in whosoever name it may stand on the face of the convey- ance." This principle is sustained by the cases of Dyer vs. Clark, 5 Medf. y 562 ; Howard vs. Priest, 5 Medf., 582, and GOODBURN VS. STEVENS. 433. is to be received, we think, as the correct doctrine upon this subject. But the true question presented for our consideration, on this branch of the case, and that to which the argument of the coun- sel has been addressed, is: whether assuming the partnership to have been solvent, on the 20th of May, 1825, the period of its dissolution, the interest of Samuel Hayes in the partnership lands is to be treated as real estate, descendible to his heirs, and chargeable with dower ; or as changed for all purposes into personal estate, and distributable as such among his personal representatives ? It cannot be denied, that upon this question, there has been, both in England and the United States, great diversity of judi- cial opinion and decision. But the case before us is clear of any agreement between the partners, direct or implied, impress- ing upon their real estate the character of personalty, and under such circumstances we consider the true rule to be, that the in- terest of the deceased partner in the partnership lands is to be treated as real estate, and that the appellant is entitled to a suit- able allowance out of the proceeds of the sales of these lands, as an equivalent for her dower ; provided, of course, the part- nership shall be found to have been solvent at the period of its dissolution. The doctrine that real estate purchased with the partnership funds for its use, and on its account, is to be regarded in a court of equity, as the personal estate of the company for all purposes of the partnership, stands upon a familiar and just principle. It is the clear case of an implied or constructive trust, resulting from the relation which the partners bear to each other, and from the fact that the estate was brought into the firm, or pur- chased with the funds of the partnership, for the convenience and accommodation of the trade. For this reason, in whoseso- ever name the legal title may reside, the estate is held, in the eye of a court of equity, for the use of the partners as the ces~ tui que trusts, and if a partner dies, the legal estate of which he was seized as a tenant in common passes to his heirs or de- visees, clothed with a similar trust in favor of the surviving VOL. i 37 434 HIGH COURT OF CHANCERY. partners, until the purposes for which it was acquired, have been accomplished. But when all the claims against the partnership have been satisfied, the partnership account adjusted, and the object of the trust fulfilled, in a case where the partners have not, either by an express or implied agreement, indicated an intention to con- vert their lands into personal estate, no solid reason can be as- signed, why the real estate should not be treated in a court of equity, as at law, according to its real nature, and consequent- ly chargeable with the widow's dower. The proposition thus announced will be found to be sustain- ed, among other cases, by Thornton vs. Dixon, 3 Bro. C. R. y 200; Bell vs. Phym, 7 Fes., 456 ; Balmain vs. Shore, 9 Ves. 508 ; Cookson vs. Cookson, 8 Simons C. R., 529, and by a very elaborate and able opinion, delivered by Chief Justice Shaw, in Dyer vs. Clark, 5 Medf., 562. In this case it ap- peared, that the real estate in controversy was purchased by the partners, with the partnership funds, for the use and conveni- ence of the trade. On the death of Burleigh, one of the part- ners, his administrator sold his undivided moiety of the lands for the sum of fifteen hundred dollars. The firm was represent- ed to be insolvent, unless the proceeds of the real estate, so sold by the administrator, should be applied to the liquidation of the partnership accounts. The prayer of the bill was, that the plaintiff might be allowed to retain the rents which had accru- ed since the decease of Burleigh, to be applied to the adjust- ment of the partnership accounts, and that the defendant might be restrained from paying the proceeds of the real estate to the individual creditors of Burleigh. The widow and heirs of the deceased partner also asserted their claims upon the fund. In this case, in reference to the rights of the widow, the court say : "That the right of the widow is not distinguishable from that of the creditors and heirs of the deceased partner. That as far as this estate was held in trust by her deceased husband, for the purposes of the partnership, she was not entitled to dower. For all beyond that, she was entitled, because he held it as real estate, unless she is barred by her release." GOODBURN VS. STEVENS. 435 It follows from the views thus expressed, that we consider the partnership as dissolved on the 20th of May, 1825, and that that is the period at which the partnership accounts are to be stated. That the whole estate of the partnership, consisting both of its real and personal property, is to be applied exclusively and in the first place, to the payment of all the partnership engage- ments, as they existed on the 20th of May, 1825. That if the partnership was solvent at the period of its dis- solution, the widow of Samuel Hayes is entitled to a proper al- lowance out of the proceeds of the sale of the partnership lands, as an equivalent for her dower. But as to what sum is to be regarded as a fair equivalent for her dower under the circum- stances of the case, and whether she has a lien for her dower on the proceeds of the sale, are questions upon which we ex- press no opinion, as they are not open for adjudication on this appeal. The order of the Chancellor is reversed, and the case re- manded to the Court of Chancery for further proceedings. Decree reversed without costs, and cause remanded. [In the intervening period between the appeal taken and the remanding of the cause to this court, various incidental pro- ceedings were had, unnecessary to be mentioned here. After the cause was remanded as aforesaid, the special auditor filed another report and several accounts, to which sundry exceptions were taken by the parties, complainants and defendants, respec- tively ; and the same having been argued before the present Chancellor (JOHNSON,) he, at this term, (after stating the points decided by the Court of Appeals,) delivered the following opin- ion, in which the nature of the points now in controversy will sufficiently appear.] THE CHANCELLOR, (JOHNSON :) It is, therefore, settled by the Court of Appeals, that the ac- counts are to be taken to the day of the death of Samuel Hayes, and that the right of his administratrix to recover as a creditor, depends upon the state of the accounts at that time. 436 HIGH COURT OF CHANCERY. The Auditor reports that the deceased was a creditor of the firm at that time, and this does not appear to be now disputed ; the controversy with reference to this part of the claim of the complainant, applying to its amount, and not to its existence. In the statement of the Auditor, designated as G. No. 19, the principal of this claim is stated to be $6,644 56, and in account G. No. 24, which is an account between the administrator and the surviving partners, interest is allowed her on this sum from the 1st of May, 1826 to the 1st of September, 1848. Both sides are dissatisfied with this mode of stating the ac- count, the complainants insisting that interest should run from the 1st of May, 1825 to the day of the death, and the defend- ants insisting that as the bill prays for profits, the Auditor should not have allowed interest, but should have stated an account of profit and loss from 1825 to 1841, when a decree was passed for a sale of the property, and have allowed the administratrix a proper proportion of those profits. The rule upon the subject of the right of the representatives of a deceased partner at their election, to demand an account of the surviving partners, (if they continue the trade,) of the profits, or to charge them with interest as stated in Story on Part., section 343, was adopted by the Court of Appeals, when this case was in that court, and must, therefore, be looked upon as the true one. It is there said, "that if the surviving partners continue the trade orlbusiness, it is at their own risk, and they will be liable at the option of the deceased partner, to account for the profits made thereby, or to be charged with interest upon the deceased partner's share of the surplus, besides bearing all the losses." The correctness of this rule has not been, and of course can- not be denied, sanctioned as it is by the high authority of the Court of Appeals ; but it is said, that no election has been made in this case, the complainant, the administratrix of the deceased partner, having only called for an account of the profits with a view of determining whether she will claim a share of those profits or interest on the amount due her intestate. Such, however, is not my understanding of the bill. It al- GOODBURN VS. STEVENS. 437 leges that the surviving partners have carried on the business under the name and style of the old firm ; and after making ex- pensive improvements from the profits of the concern, they have divided among themselves large annual sums, and it prays that these surviving partners "may be required to pay to the com- plainant as administratrix, the share of her intestate of the per- sonal property of said concern, as well as his share or portion of the profits which have accrued thereon since his death." My opinion, therefore, would have been, independently of the opinion of the Court of Appeals, that the complainant had made her election to claim a share of the profits ; and I should not have been prepared to say, that having so elected, she would have been at liberty afterwards to claim interest. But the Court of Appeals, as I think, have settled this ques- tion also. They say, "it was the undoubted privilege of the appellant," (the complainant,) "on the case made by the bill, to demand the profits produced by the employment of her hus- band's share of the property, from his death to the institution of the suit." And having thus elected to claim profits and not interest, and the general rule being that the party is not at liberty to claim profits for one period and interest for another, I think the complainants must be restricted to a claim for pro- fits, until the 31st of August, 1841, when the business was brought to a close, by the decree for a sale of the property. An account of profits must, therefore, be taken down to that period, and upon the sum thus found due the complainant, to- gether with the amount due her intestate at his death, interest must be allowed from the date of the decree to the mean day of sale, under said decree. Besides this claim against the partnership growing out of its indebtedness to the deceased partner, the complainant, the widow of Samuel Hayes, claims a reasonable and just allow- ance in lieu of her dower interest, in the real estate owned by her husband, and which constituted a part of the partnership property. This real estate, as has been decided by the appel- late court, though regarded in a court of equity as personal es- tate for all partnership purposes, yet in the absence of an ex- 37* 438 HIGH COURT OF CHANCERY. press or implied agreement, indicating an intention to convert it into personal estate, will, when the claims against the part- nership have been satisfied, and the partnership accounts ad- justed, be treated in a court of equity as at law, as real estate, and be chargeable with the dower of the widow. In this case, the Court of Appeals have, in express terms, decided, that the widow of Samuel Hayes, is entitled to a proper allowance out of the proceeds of the sales of the partner- ship lands, as an equivalent for her dower, if the partnership was solvent at the period of its dissolution. And the question is, what this proportion shall be, and whether, in addition to the equivalent for dower, she is not entitled to rents and profits, from the period of the death of her husband until the sale of the property. The court of Appeals have said nothing, in regard to any claim of the widow for arrears of dower, or interest on those arrears ; nor have they decided whether she has a lien for her dower, on the proceeds of sale. All that has been decided, is, that when the claims against the partnership have been satis- fied, the accounts adjusted, and the object of the trust fulfilled, the widow is to be entitled to an allowance out of the proceeds of the sales, as an equivalent for her dower in her husband's interest in the real estate. The real estate sold for $33,771 27, and the Auditor reports, that on the 17th of September, 1845, that being the date of the last sale, the proportion of the widow, as an equivalent for the interest of her husband therein, was 1-8, she being about forty- seven years of age, amounting to $1,731 91. It is insisted on the part of the complainants, that this mode of stating the account is erroneous ; first, because the propor- tion should have been determined by her age at the time of the death of her husband, in 1825; and, secondly, because no allow- ance is made her, for arrears of dower from that time. My opinion is, that the death of the husband, in 1825, is the epoch to be taken, in fixing the allowance to be made to the widow in lieu of her dower, and that she must be paid the equivalent for the value of her interest at that time, according GOODBURN VS. STEVENS. 439 to the rule of this court. The accounts are to be taken to that period ; and the equivalent to her, must be measured by the value of her husband's interest in the real estate of the partner- ship at that time, after the claims of the creditors are satisfied. But, the complainants insist, that not only has the Auditor erred, in fixing on the 17th of September, 1845, as the period for determining the money equivalent to be paid the widow, in lieu of her dower ; but that he has also erred in not making her an allowance for arrears of dower from her husband's death to the day of sale, with interest on the yearly arrears as they accrued. That she was entitled to a money allowance in commutation of dower, has been settled by the Court of Appeals. Is she also entitled to arrears of dower, and interest on those arrears? The complainants say that she is, and that the annual allow- ance ought to be computed on one-third of the interest on $13,855 29, the estimated proportion of the product of the real estate belonging to the heirs of her husband. I do not find it anywhere decided, that a widow can recover interest on arrears of dower ; and in Park on Dower, 332, Lord Loughborough, is said to have stated, that there were no cases warranting such a proposition. But without deciding, or intending to express any opinion on the right to recover interest on the arrears of dower, when the title of the widow to recover the arrears themselves is clear, the question here is, whether under the peculiar circumstances of this case, and upon this bill, such title can be maintained. The bill does not claim arrears of dower. The prayer is, that, "the complainant," (the widow,) "may have a reasonable and just allowance made for her dower in her said husband's interest in said lands and premises." There was no demand upon the defendants, to account for the rents and profits of the lands, the claim and the account of profits, having reference exclusively to profits made by the sur- viving partners, from the employment of the partnership prop- erty, and the proportion thereof, to which the complainant, as administratrix of her husband, was entitled. And it would 440 HIGH COURT OF CHANCERY. seem to be quite obvious, that if the defendants were made to account for profits to the representative of their deceased part- ner, for the use of this real estate as a part of the partnership property ; and are also compelled to pay the complainant, as widow, a proportion of those profits as arrears of dower, they will, to that extent, be paying twice for the use of the same property. Her deceased husband, who owned nearly one half of all the real estate employed in the business of the partners, would receive or rather she, as his representative, would re- ceive nearly one moiety of the profits, of which, as there were no children of the marriage, she, as widow, would be entitled to one half; and then, upon the ground taken by the complainants, she would as dowress, receive one-third of the supposed annual value of the interest of her husband in the same lands. It ap- pears to me, there can be no equity in this, and it cannot be- allowed. There are, moreover, circumstances attending this property, which would seem to take it out of the general rule applicable to ordinary cases of bills for dower, and rents and profits. The general rule is well settled, that the courts will decree dower, and rents and profits, to the widow from the death of her hus- band. Wells and Wife vs. Beall, 2 Gill and. Johns., 468. But this property, being partnership property, and as such subject to the partnership engagements ; and as upon the death of the deceased partner it descended to his heirs at law, clothed with an implied or constructive trust, until the purposes of the partnership were accomplished ; the right of the widow to dower was postponed until those purposes should be accom- plished by paying all claims against the partnership, and ad- justing the accounts. Such was the decision of the Court of Appeals, when this case was before it in 1847. The right, therefore, of the widow was not a fixed and ab- solute right, but one depending upon the contingency, that there would be a surplus after paying the debts of the partner- ship ; and consequently it cannot, I think, be maintained, that the principles applicable to cases in which the title of the widow is clear, and consummate by the death of the husband, will apply to this case. The property was subject to a trust para- GOODBURN VS. STEVENS. 441 mount to the title of the widow ; and until that trust was ful- filled, her right was in suspense ; and hence she cannot have rents and profits from his death. Dower could not have been assigned to her at that time, nor can she have rents and profits, the incidents to the dower. It is true, as has been urged, that it was the business of the surviving partners to pay the debts, and wind up the concern ; but if they failed to do so, the complainant had it in her power to stimulate them by a bill in this court : and a bill was ac- cordingly filed by her for that purpose. But an examination of the proceedings will show that the long delay which has taken place, and the slow progress of the cause, is chargeable, per- haps, in a greater degree to the complainants than the de- fendants. My opinion therefore is, that the complainant can only have an equivalent in money, payable out of the proceeds of sales, according to her age, and the state of her health at the period of the death of her husband, with interest thereon from the mean day of sale; but that she is not entitled to arrears of dower, or interest in lieu thereof, from his death until that day. And I am also of opinion, that the widow is entitled to receive this sum in preference of the creditors of the new partnership, becoming such since the death of her husband. With regard to the bonds and mortgage to William Seal, I think the principal sums should be paid out of the personal es- tate of the mortgagor, in the hands of his administratrix, and if that is not adequate for their payment, then the balance should be paid out of the proceeds of that portion of the real estate contained in the mortgage. The complainants claim in their bill, that the defendants shall be compelled to pay this claim from that portion of the concern which was originally bought of Seal, which was a clear recognition of its validity ; but the rule being, that as between the heir and the executor, the personal estate shall ex- onerate the real being the primary fund for the payment of the mortgage the heir in equity shall have the preference, and may insist upon such application of the personal estate. 2 Powell, 777, 780. 442 HIGH COURT OF CHANCERY. This being so, I can see no reason why the heirs at law of Samuel Hayes may not insist, that his personal estate, as be- tween his personal representatives and themselves, shall be ap- plied in exoneration of the real. And as both the personal and the real estate are now in this court, brought here by the act of the administratrix, it seems to me, this court may now see, that the proper application is made. If this mortgage debt should be paid by the heirs, they would have a clear right to reimbursement out of the personal estate, and the latter being in this court, no good reason sug- gests itself, why the proper application should not be made at once, to prevent circuity, and save expense and delay. It is not that this court usurps the powers of the Orphans Court, but upon a principle of equity, which regards the personal es- tate as the primary, and natural fund for the payment of debts ; and the court will having both funds under its control apply them in the order in which, as between the heir and executor, they are liable. 1 Story's Eq., sec. 571. I think, therefore, this mortgage debt, or the principle thereof, must be paid out of the personal estate, if it is sufficient for the purpose. I have said, that the principal sums due upon the mortgage to William Seal, should be paid out of the personal estate of Hayes, the mortgagor; but I do not think the interest should be, which accrued between the death of Hayes, and the sales of the property in 1845. During that period the defendants were in possession of the mortgaged property, and acknowl- edged that they received some profits ; though, in their answer they say they received very little ; the profits being applied, as they represent, to keeping in repair, and enlarging the es- tablishment. It appears to me, however, that they ought to have kept down the interest upon the debt, and that the pay- ments which they made on account of interest, and which are stated in the Auditor's statement G. No. 6, must be assumed to have been made out of the profits. There is another reason why the interest upon the bonds and mortgage to Seal should not be thrown upon the personal estate in the hands of the administratrix of Hayes. GOODBURN VS. STEVENS. 443 The evidence shows that the property of the partnership was worth quite as much at the death of Hayes in 1825, as when the sales were made, although expensive improvements were made out of the profits after his death, and the accumulation of interest, therefore, upon those bonds, would be a clear loss to the estate of Hayes, if the burden must be borne by his per- sonal estate. The surviving partner might, and ought, upon his death, to have sold the property and divided the proceeds among the parties entitled, according to their respective inter- ests, and in that event, the estate of Hayes would have had to pay only the amount due at that time. But, by keeping it, and carrying on the business, they suffered a large amount of in- terest to accrue, which if not paid by them, must be paid by the estate of Hayes, without any corresponding advantage in the appreciation of the property. This, it seems to me, ought not to be allowed. According to all the authorities, the sur- viving partners have no right to expose the estate of the de- ceased partner to the vicissitudes of the business, without the consent of the persons interested in his estate. The interest, therefore, upon these bonds to Seal, from the death of Hayes until the property was sold, must be paid out of the profits, or out of the defendant's proportion of the pro- ceeds of the real estate bought of him. With regard to the bond to Rachel Bryant, (from Samuel Hayes, which was paid by certain of the defendants, and as- signed to them,) it is, I think, barred by limitations, and cannot be set up as against the complainants. Several sums are allowed the trustee in statement G. No. 14, which, I think, are not properly chargeable against the proceeds of the sales. His own personal expenses, and the travelling expenses of other persons, and for clover seed, and other matters connected with the cultivation of the land, cannot be allowed. Nor can he be allowed for sums paid R. M. Hayes, nor for postages ; but I see no objection to an allowance for counsel fees, which are admitted to be reasonable. The complainants' 8th exception, (to the deduction from her claim, of that proportion of the costs incurred in the cause, and 444 HI( *H COURT OF CHANCERY. the trustees' expenses and allowances, which the interest of her late husband bore to the whole partnership estate,) appears to me to be well taken. The administratrix of Hayes is to be re- garded as a creditor, and entitled to be paid as any other credi- tor would be, in preference to the parties who held the estate subject to her claim. It has already been said, that the bonds to Seal, secured by the mortgage, are, as to the principal sums, to be paid out of the personal estate of Hayes in the hands of his administratrix, if it be sufficient ; and that the interest thereon from the death of Hayes until the property was sold, must be paid by the de- fendants, either from the rents and profits, or out of their pro- portion of the proceeds of the real estate. The interest from the period of the sales must be paid by the administratrix out of the proceeds of the personal estate. And I have also said, that this court will retain the money, and make the proper ap- plication of it in this court, upon the grounds already stated. But it is not to be understood, that the court will, in this pro- ceeding, discharge the functions of the Orphans' Court, and settle the administration accounts ; and, therefore, when the accounts are stated, ascertaining the sum due the complainant, as administratrix of her husband, after deducting therefrom the amount payable on the mortgage debt, the residue will be paid over to her, to be accounted for in the Orphans' Court of the proper county. It may also be said, that I approve of the mode in which the Auditor has stated the trustees' commissions on the several sales, (the trustees having calculated the commissions separate- ly on each sale, when made at different epochs, and not treat- ed the sales as made at one time ;) and that in charging inter- est on Seal's bonds, he should charge up to the mean day of sale. Many of the exceptions going to the details of the accounts, it is not necessary to decide, as the present questions which will be considered by the Orphans' Court, when the accounts of the administratrix are stated there. [No appeal was taken from this order.] GWYN VS. LEE. 445 CHARLES R. GWYN AND JOHN R. GWYN vs. }> JULY TERM, 1849. JOSIAH LEE ET AL. 1 Jci [HOLDER OF PROMISSORY NOTES USURY.] A bonafide holder of a negotiable instrument for a valuable consideration, with- out notice of facts which effect its validity as between antecedent parties, if he takes it by indorsement before it becomes due, acquires a valid title, and may recover upon it, though, as between the antecedent parties, the trans- action may be invalid. The holder of such paper before it is due, is not bound to prove that he is a bonufide holder for a valuable consideration without notice ; for the law will presume this, in the absence of rebutting proof. If the want, or failure, or illegality of the consideration has been established, or if it be shown that the note was lost, or stolen, before it came into the possession of the holder, it is then incumbent on him to show that he has given value for it. Since the act of 1845, ch. 352, usurious instruments are not, under any circum- stances, avoided, but are made valid securities in all courts, no- matter by whom proceedings may be instituted upon them, to the extent of the princi- pal sum, and six per cent, interest. [In his opinion, in this case, in which the facts are fully stated, the Chancellor says-:] THE CHANCELLOR : This case though not very important with reference to the amount involved in its decision, is yet not destitute of interest to the commercial community. It appears that some time in the month of April, 1848, the complainants, trading under the firm of Gwyn & Company, placed in the hands of George Baughman, of the firm of Baugh- man, Nicholson and Cannon, their promissory note for $1227 33, made payable to the last named firm, dated the 9th of that month, and payable eight months after date, and, as the com- plainants allege, the note so made and delivered by them to Baughman, was made and delivered upon the offer and agree- ment of Baughman to procure the same to be discounted for their use at some bank in Baltimore. VOL i38 446 HIGH COURT OF CHANCERY. Baughman did not comply with this, his alleged agreement, but, on the contrary, on the llth of September, 1848, three months before the maturity of the note, the firm of which he was a member borrowed from the defendant, Lee, twenty-one thousand dollars, and lodged and hypothecated with him as security for the re-payment of the money, this note, with many others, a list of which is given in his answer. Of these notes, it appears some have matured and remain unpaid, and that others have not yet matured, so that a considerable portion of the money loaned is still due. There is nothing to show that Lee, the defendant, had any knowledge or any reason to suspect when he received this note as stated, that it had been procured by fraud or misrepresenta- tion, or was without consideration ; and in his answer he ex- pressly denies that he had any such knowledge or suspicion ; and, denying all belief in the allegations of the bill charging such fraud and want of consideration, the defendant avers him- self to be a bona fide holder of the note, for a full and valuable consideration and without notice. The bill charges, that the note was pledged by Baughman, Nicholson and Cannon, to the defendant, Lee, to secure the payment of a large sum of money which they had borrowed of him, and upon which he charged and exacted from said firm, usurious interest. The bill does not allege that the defendant knew of the circumstances under which the note was given to Baughman, nor does it charge that the complainants gave Lee notice thereof, until after he had received the same from the payees as security for the loan made to them ; nor is there any allegation that steps were taken by the complainants, by publi- cation or otherwise, to caution the public against taking the note. It is charged, that to secure the money borrowed by Baughman, Nicholson and Cannon, from the defendant, they pledged with him securities to a larger amount than the loan, and the bill insists that Lee is bound, before he can proceed against the complainants upon their note, to apply and exhaust the other securities. In answer to this charge, the respondent says, that several of GWYN VS. LEE. 447 the makers of the other notes, pledged to him, have refused to pay them-, and that some of them insist that they were lent to Baughman, Nicholson and Cannon, and that after defendant is repaid his loan with interest, they are entitled to share in the surplus, if any there be. The complainants in their bill, further insists, that even if the defendant can hold said note as a security at all, it can only be for so much as might be due him after deducting all the in- terest paid him by said firm on all their transactions, over and above the interest allowed by law ; and they call upon the de- fendant to state the amount of such excessive interest paid within the period of the last three years. In answer to this ground of equity, the defendant says, that the loan already spoken of, for twenty-one thousand dollars, and a further loan to the same parties of four thousand dollars, on the 16th of August,. 1848, and to secure the repayment of which, other notes were hypothecated with the defendant, are the only two transactions of business he has with Baughman, Nicholson and Cannon ; that he claims to hold these last notes as also those pledged for the payment of the $21,000 before mentioned, as security for the repayment of the two sums, prin- cipal and legal interest, and such costs and expenses as he may incur by the resistance of the makers of the notes, to pay the amount of their liabilities ; and denying the right of the com- plainant to interrogate him on his obligation to answer to the charge of usury, the defendant says, "he was always ready and willing, and is now ready and willing, to surrender to the per- sons entitled to receive the same, all securities which he holds, upon the payment to him of the amount of Baughman, Nichol- son and Cannon's indebtedness to him, with legal interest thereon, and the costs and expenses," &c. But he claims to hold the said securities until he is so repaid, and to adopt such measures as he may be advised, and as may be necessary to recover the sums due upon said securities, until he shall be re- imbursed his principal, legal interest, and costs arid expenses. The injunction which was ordered upon the filing of this bill to restrain the defendant, Lee, from passing away the note of 448 HIGH COURT OF CHANCERY. the complainants, or from suing thereon, to recover the amount thereof, was not granted upon the alleged fraud charged to have been practised by Baughman, upon the complainants in obtaining the note ; because it was not charged that the de- fendant had any knowledge of such fraud or imposition, at the time he received it ; but upon the ground, as I understood the bill, that it was pledged with the defendant to secure a pre-ex- isting debt, due from Baughraan, Nicholson and Cannon to him, the allegation being, that it was placed with the defendant by those parties, to secure the payment of a large sum of money which they had borrowed from him ; which language was un- derstood by me to mean, which they had borrowed prior to the pledge, and, with that understanding, I thought he might not be entitled to all the rights which attach to a party who had taken a negotiable security, bona fide, and without notice, and in the usual course of business. Story on Promissory Notes, sec. 195, note 1. If Baughman committed a fraud, or practiced an imposition upon the complainants, that was a matter between him and them, with which the defendant, Lee, had nothing to do, and for which he could be in no way responsible, unless he had notice thereof when he received the note. Baughman was trusted by, and made the agent of, the complainants, and if he abused their confidence, surely they, and not third parties, ig- norant of the fraud, must bear the consequences, and this claim to the protection of the court, was the weaker, seeing that after they discovered the imposition, they did not take the usual and proper course to warn the public by advertisement, or in some other way. Unquestionably, as between them and innocent third parties, who might obtain their note before its maturity, and in the ordinary course of business, there could not be a doubt as to who should bear the loss. There can be no doubt that a bona fide holder of a negotia- ble instrument for a valuable consideration, without any notice of facts which affect its validity as between the antecedent par- ties, if he takes it by indorsement before it comes due, acquires GWYN VS. LEE. 449 a valid title, and may recover upon it, although, as between the antecedent parties, the transaction may be invalid. This is a doctrine, Mr. Justice Story says, so long and so well estab- lished, and so essential to the security of negotiable paper, that it is laid up among the fundamentals of the law. And as little doubt is there, that the holder of such paper before it is due, is not bound to prove that he is a bona fide holder for a valuable consideration without notice ; for the law will presume that, in the absence of rebutting proofs. It is true, if the other party has established the want, or failure, or illegality of the consideration, or that the note has been lost or stolen, before it came to the possession of the holder, it may then become incumbent on him, to show that he has given value for it ; for, under such circumstances, he ought not to be placed in a better situation than the prior parties, through whom he obtained it. Story on Promissory Notes, sec- tions 195, 196, and the notes to those sections. The question then, is, has the defendant, Lee, shown, for the purposes of this motion, that he has given value for this note ? The answer says, speaking responsively to the bill, that upon the security of this note before it became due, and of other notes, a list of which is given, he, at the time he received it, loaned the holders twenty-one thousand dollars, and that he is a fair and bona fide holder, for a full and valuable consideration without notice. The argument of the complainants' council is, that as the charge of usury has not been answered, it must, upon this mo- tion, be assumed to be true, and that consequently the defend- ant cannot be regarded as a bona fide holder for value, and the note being stated in the bill to have been procured by fraud, which statement must also, as it is said, at this stage of the cause be treated as true, the defendant is in no better situation than the prior party from whom he obtained it. The defendant, it is true, does not deny the usury charged against him, insisting that he is under no obligation to do so, but he says he gave value for the note, and that he is now ready and willing, to surrender the securities in his hands, including 38* 450 HIGH COURT OF CHANCERY. this note, upon the payment of the principal sum loaned by him, with legal interest, and his costs. The act of 1845, ch. 352, has made a material change in the law of this state upon the subject of usury. Prior to that act, and under the law of 1704, ch. 69, securities tainted with usury were utterly void, and if the party lending money upon usuri- ous interest attempted to recover it by legal or equitable pro- ceedings, he would be wholly defeated, on the fact of usury being established. Under that act, however, if the debtor ap- plied to chancery for relief, he would only be relieved, upon paying the principal due, with the legal interest thereon. In other words, he would be required to do equity, before he could ask for equity, which only required he should be relieved from the excessive interest. But the act of 1845 extends this equitable principle, and pro- vides, that in actions, both at law and in equity, bought by the creditor upon the usurious instrument, the defendant, the debt- or, shall be made to pay the principal debt, with interest there- upon at the rate of six per cent, per annum ; so that now usuri- ous instruments are not, under any circumstances, avoided, but are made valid securities in all courts, and no matter by whom proceedings may be instituted upon them, to the extent of the principal sum and six per cent, interest. Can it be said, then, assuming, for the sake of the argument, that the defendant, Lee, contracted with Baughman, Nicholson and Cannon, for the payment of more than six per cent, inter- est, that he is not a holder for value of this note. His contract is not void, but is a good and valid contract, to the extent of the sum loaned and six per cent, interest, and this is all he claims. He says, and his answer is to be taken as true, being responsive to the bill, that he gave value for this note paid at the time he re- ceived it ; and it is no answer to say that his contract with the parties from whom he received it was usurious ; because, if true, that does not avoid the contract, which is a valid security to the extent that he claims to recover upon it. He must, therefore, be looked upon as a holder for value, and entitled as such to avail himself of the note, taken without notice, and before it was due, to the extent he claims. GWYN VS. LEE. 451 It may be, that since the repeal of the 3d section of the act of 1704, ch. 69, which inflicts a forfeiture for usury, a defend- ant cannot excuse himself from answering the charge of usury, when the justice of the case requires him to answer. But when, as in this case, the defendant claims no more than his principal and legal interest, to which, under the act of 1845, ch. 352, he is entitled, whether he has contracted for the payment of usuri- ous interest or not, there would seem to be no motive for com- pelling him to answer, if he declines voluntarily to do so. Cui bono force him to answer a charge which can have no influence upon the judgment of the court or the rights of the parties. It is also objected by the complainants, that the defendant has not produced his accounts with Baughraan, Nicholson and Cannon, for the last three years prior to the time of filing this bill ; nor stated the amount of excessive interest paid, or sup- posed to have been paid, by them to him, within that period. But the answer does give a statement of the only two trans- actions he has with those parties at this time ; and I cannot see how the complainants can found an equity upon transac- tions passed and settled. The legality, or the illegality, of former dealings between those parties, which have been settled between themselves, can have nothing to do with the merits of this particular transaction, and are not, therefore, proper sub- jects of inquiry. The fate of this controversy must depend upon the consider- ations which have been adverted to, and which affect it as an independent transaction; and it is to be determined without reference to anterior dealings with which it has no connexion. My opinion, therefore, is, that the equity upon which the in- junction was granted has been removed by the answer, and it must, therefore, be dissolved. [The order in this case was affirmed, on appeal to the Court of Appeals.] 452 HIGH COURT OF CHANCERY. CATHARINE BOWIE } vs. >- JULY TERM, 1849. JOHN T. BERRY. 3 [DOWER.] WHERE a husband alienes land in his lifetime, in which the wife refuses to re- linquish her dower right, in assigning the wife a compensation in money in lieu of her dower, the value of the land at the time of the death of the hus- band is to be regarded, and not its value at the time of the alienation, unless its increased value has arisen from the labor and money of the alienee. The improved value of the land, from which the widow is to be excluded in the assignment of her dower, as against a purchaser from her husband, is that which has arisen from the actual labor and money of the owner, and not from that which has arisen from extrinsic or general causes. Where the husband holds only the equitable title, and parts with it in his life- time, the widow shall not be allowed dower. [The bill in this case alleges, that the late Robert W. Bowie, the husband of the complainant, on the 1st of September, 1832, and during the coverture, purchased a tract of land called "Brookfield," and took a bond of conveyance therefor, with condition to convey the legal title upon the payment of the pur- chase money ; and that, subsequently, on the 25th of Novem- ber, 1843, the legal title, in fee, was conveyed to him, and the bond and deed are filed as exhibits with the bill. It further alleges, that some time in the year 1839, the said Bowie, having previously sold and conveyed a small portion of said land to another person, sold the residue thereof to the defendant, John T. Berry, for about the sum of thirty thousand dollars, and, as complainant is informed, executed to him a bond of conveyance, with condition, upon the payment of the purchase money, to convey him a title free of incumbrances ; but the bill alleges that the complainant is ignorant of the con- dition of the bond given by her husband, as she had always refused to relinquish her right of dower in the land so sold to Berry ; and insisting that she is entitled to dower therein, the bill prays that it may be assigned to her in the usual way, by the decree of this court, or that said Berry may be compelled BOWIE VS. BERRY. 453 to pay her such proportion of the purchase money, as she may, under the rule of this court, be entitled to receive, in lieu of her dower in the land, with interest thereon, from the death of her husband. The answer admits that the legal title was acquired by the said Robert W. Bowie, by the deed of November, 1843, but insists that said Bowie, prior thereto, and whilst he had only contracted to purchase said land, and to pay therefor a large sura of money, contracted to sell the same to the defendant free and clear of all incumbrances, and alleges that, in pursu- ance of said contract, he, the defendant, made large payments to said Bowie, which payments, or a large portion thereof, were applied by him to the obtention of the legal title. It further alleges, that Bowie died insolvent, having failed to obtain a release of the dower right of the complainant, which, if not relieved against, will constitute an incumbrance on said land ; and, that, therefore, the defendant is entitled to compensation and reimbursement for so much of his payments to said Bowie as were applied as aforesaid, and that from the value of the complainant's dower interest, if she shall be de- creed to have such interest in this land, the said payments are to be deducted. The case was submitted for hearing by the complainant's solicitor, on bill and answer, during the sittings of July terra, 1849, and was, during the sittings, argued by him, no one ap- pearing for the defendant, and was, at the end of the sittings, submitted for decree or order. Upon which submission the Chancellor said :] THE CHANCELLOR : It does not appear when Mr. Bowie died, nor what is the age and condition of health of his widow ; and, therefore, an order fixing the proportion of the money to which she may be entitled in lieu of dower, could not be passed. The bill prays either for an assignment of dower, or an equivalent therefor in money ; but this equivalent it is proposed to regulate by the amount which Berry, the defendant, agreed 454 HIGH COURT OF CHANCERY. to give for the land in 1839, which is stated to have been about thirty thousand dollars. My opinion, however, is, that this is not the true standard. The land may have appreciated or depreciated in value very much, between the purchase by Berry, and the death of the complainant's husband ; and it is the value of the land at the time of the death, which is to be regarded, and not its value at the time of the alienation, unless its increased value has arisen from the labor and money of the owner. After examining the authorities upon this question, Chan- cellor Kent comes to the conclusion, "that the improved value of the land, from which the widow is to be excluded in the as- signment of her dower, as against a purchaser from her hus- band, is, that which has arisen from the actual labor and money of the owner, and not from that which has arisen from extrinsic or general causes." 4 Kent's Com., 68. But the answer in this case takes the ground, that as Mr. Bowie had but an equitable title to this land when he sold to the defendant, he is entitled, upon the condition of the bond of conveyance, to give him a clear title, to have the payments made by him to Bowie, and which were applied by the latter to the obtention of the legal title set off or discounted from the complainant's claim to dower. If Mr. Bowie, while he held but an equitable title, had sold and transferred that title to the defendant, the claim of dower could not be supported, it having been decided by the Court of Appeals, that if the equitable title is parted with by the husband in his lifetime, the widow shall not be allowed dower. Miller vs. Stump, 3 Gill, 304. But this was not done ; on the contrary, Mr. Bowie, four years after he contracted to sell the land to the defendant, took the deed from his vendors to himself, because the defendant had not then paid the purchase money, a part of which, it is under- stood, is even yet due. This is the case, then, of a husband dying seized of the legal title ; and, therefore, it would seem that the dower claim can- not be defeated, either directly or indirectly, in the mode pro- PFELTZ VS. PFELTZ. 455 posed by this answer. It is possible a different view might have been taken of the subject in a court of equity, if, during the life of Mr. Bowie, the defendant had put himself in a con- dition to demand a conveyance of the title, by paying all the purchase money he had contracted to pay. I am not sure, however, that the value of the thing out of which the dower is claimed, should not be diminished by the amount of the sums paid by the defendant to Mr. Bowie, in his lifetime, and by him applied to the payment of the land ; and as the case has not been argued on the part of the defendant, that point will not now be decided ; but the case sent to the Auditor, to report such accounts as will enable the court to de- termine the question hereafter. [This order was not appealed from.] JULIUS PETER PFELTZ vs. S. JULY TERM, 1849. ANN MARIA PFELTZ ET AL._S [CHANCERY PRACTICE VACATING ENROLLED DECREE BILL OF REVIEW.] A DECREE is considered as enrolled, when signed by the Chancellor, filed by the Register, and the term elapsed at which it was made ; and such decree can- not be reheard upon petition. Every decree stands, and must be allowed to stand, for what it purports to be on its face, until it has been revised, or reversed, in a proper and solemn manner. A decree passed for the sale of property, for the purpose of partition among the parties to the cause. After enrollment of this decree, a petition was filed by one of the parties, setting up an exclusive right to the whole proceeds of sale. HELD That as the decree contained no reservation of equities, or for further direc- tions, it was of course final upon the rights of the parties, and that this court upon such petition, had no more power to change the rights thus settled, than it would have to open the enrollment, and vacate the decree. When a decree is obtained and enrolled, though on a bill taken pro confesso, it cannot be reheard on petition, and the remedy of the party grieved, is by a bill to set aside the decree for fraud, or a bill of review, which only lies against those who were parties to the original bill. 456 HIGH COURT OF CHANCERY. A bill of review founded on new matter discovered since the decree, cannot be filed without leave, and the granting this leave, is left to the sound discretion of the court, arising out of the circumstances of each case. The limitation of time, as to appeals from the decrees of the court, applies to the right of filing bills of review, and such a bill, filed nine months after the date of the decree, comes too late. [The facts in this case are stated in the Chancellor's opinion,] THE CHANCELLOR: In this case a bill was filed by Ann Maria Pfeltz and George C. Pfeltz, on the 4th of April, 1845, alleging that Charles William Pfeltz, the husband of the female complainant, died in the year 1837, intestate, and seized in fee of certain parcels of land in Baltimore county, leaving the said Ann Maria, his widow, and five children, his heirs at law, among them the complainant George, and Peter Pfeltz, the same person now called Julius Peter Pfeltz, and the bill to which the heirs at law were made parties, prayed for a sale of the property, or that the female complainant might be let into the receipt of one-third of the rents and profits, &c. The defendants being summoned, and not having appeared or answered, an interlocutory decree against them passed on the 28th of October, 1845, and the case being proved under an exparte commission, a final decree passed on the llth of July, 1846, directing a sale of this property for the purpose of parti- tion. The sale was made accordingly, and finally ratified and confirmed on the 3d of November, 1846. Afterwards, to wit, on the 19th of October, 1847, Julius Peter Pfeltz, one of the defendants to the bill, filed his petition in the cause, claiming the said lands as his own individual property, under a deed which he alleges was made by his father, in April, 1832, to one Job Smith, in trust for him and his children, and insisting, that the whole of the net proceeds of the sales should be paid to him, after deducting a reasonable allowance to the widow for dower. The petition was subsequently amended, by making the children of the petitioner parties, and praying that the proceeds PFELTZ VS. PFELTZ. 457 of the sales, after deducting the value of the dower, should be invested for the use of the petitioner for life, and, after his death, for the benefit of his children, according to the provisions of the said trust deed. This is the case, then, of an application by petition, to open and revise a decree, after the term has passed at which it was made. The decree passed before the commencement of the sittings of the July term, 1846, and, consequently, that term, and the then ensuing September and December terms had closed, before the petition was filed ; and a preliminary question presents itself, as to the power of this court, upon petition, to rehear the matters settled by the decree. In Burch et al. vs. Scott, 1 G. fy J., 393, the Court of Ap- peals decided, that a decree signed and enrolled, could not be reheard upon petition, and that a decree would be considered as enrolled, when signed by the Chancellor, filed by the Regis- ter, and the term had elapsed at which it was made. This decree, then, is to be regarded as enrolled ; and it is clear, that if an application were made, by petition, to open the enrollment and vacate the decree, it must be refused. It may be said, however, that this is not an application to vacate the decree, but to give the fruits of it a different direc- tion from that which, upon the proceedings as they stood at the time it passed, they would take ; that is, that instead of distributing the proceeds of the sale among the parties, accord- ing to their rights and interests as displayed upon the face of the proceedings, the whole amount shall be given to one of those parties for life, with remainder to persons who were not parties to the decree. But the decree contained no reservation of equities, or for further directions, and was of course final upon the rights of the parties, and this court, therefore, in this way, has no more power to change the rights thus settled, than it would have to open the enrollment and vacate the decree. 2 DanieWs Ch. Pr., 1199. In Estep vs. Watkins, 1 Bland, 489, the late Chancellor said, "every decree stands, and must be allowed to stand, for VOL. i39 458 HIGH COURT OF CHANCERY. what it purports to be on its face, until it has been revised or reversed in a proper and solemn manner." And as the decree in this case purports upon its face to be a decree for the pur- pose of making partition among the parties to the cause, it will not be allowed to stand as such, if the proceeds of the sale are now taken from them and given to others. When a decree is obtained and enrolled, though on a bill taken pro confesso, and requires explanation, it cannot be re- heard on petition, and the remedy of the party grieved is by a bill to set aside the decree for fraud, or a bill of review which only lies against those who were parties to the original bill. 2 Mad. CJi. Pr., 537. This petition certainly cannot be maintained as a bill of re- view, either for error apparent on the face of the decree, or upon some new matter discovered since. Upon the face of the decree there is no error, and the petition does not profess to be founded upon new matter discovered since ; nor has the leave of the court been obtained to file it ; which is indispensable, regarding it as a bill founded upon new matter discovered since the decree. 2 Mad. Ch. Pr., 538 ; Burch et al. vs. Scott, 1 G. # J., 125. And it may very well be doubted, whether, if the leave of the court had been asked for, to file a bill of review, upon new- ly discovered matter, it would have been granted ; the inter- ference of the court to relieve a party from the consequences of his default depending upon sound discretion, arising out of the circumstances of the case. Wooster vs. Woodhull, 1 Johns. Ch. Rep., 541 ; Burch vs. Scott, 1 G. $ J., 426. The circumstances of this case are not such as to enlist the favorable consideration of the court, or to entitle the petitioner to be relieved from the consequences of his neglect. He states, "that he was served with a subpena from the court, issued against him by the name of Peter Pfeltz, to appear in said court in said cause, upon which he inquired of the said Ann Maria, for what purpose he had been served with a subpena from chan- cery, at her suit ; when she informed him the proceeding in said suit was stopped, which induced him not to attend to the cause, which he would otherwise have done." HAYDEN VS. STEWART. 459 In answer to this part of the petition, Ann Maria Pfeltz says, "she denies positively that she ever told the petitioner that the proceedings in the said suit were stopped or stayed, or other- wise led him into error in regard to the proceedings ;" and no proof is produced to show that she did mislead him upon the subject. It seems to me, adopting the language of the Court of Ap- peals, "that if upon the application of this party, thus guilty of disregarding the process of the court, its decrees are to be re- vised and changed, a lax principle of practice will be establish- ed, which will be productive of the most serious consequences in the administration of equitable jurisprudence." There is another insuperable objection to entertaining this petition, supposing it may assume the character of a bill of re- view, and that is, that it was filed more than nine months from the date of the decree ; it having been settled by the Court of Appeals, that the limitation of time as to appeals from the de- crees of the court applies to the right of filing bills of review. Berrett vs. Oliver, 7 G. #/., 207. The children of Julius Peter Pfeltz were not parties to the bill upon which the decree passed, and are of course not bound by it. Their rights are, therefore, supposed to be unaffected ; but the father, the petitioner, was, and his petition, for the rea- sons stated, must be dismissed. DEN -^ \Ja. S HANDEL M. HAYDEN vs. $. JULY TERM, 1849. DAVID STEWART, [JUDGMENT LIEN OF.] A JUDGMENT rendered in any one of the county courts in this state is not a lien upon lands lying in another county, until the plaintiff, in the mode pointed out by the acts of 1794, ch. 54, and 1795, ch. 24, has transferred his judgment to such other county. Judgments, when liens at all, are general Hens upon all the lands of the defend- ant, continuing for twelve years, and fasten as well upon those lands which the defendant held at the time of their rendition, as upon those subsequently acquired. 460 HIGH COURT OF CHANCERY. [The facts in this case are stated in the Chancellor's opinion.] THE CHANCELLOR: The question now to be decided, upon the petitions of the Farmers' Bank of Maryland, and the answers thereto, relates to the disposition of the sura of $1,538 13, paid into court under the order of the 25th of June last. It appears, that on the llth of September, 1848, the bank recovered judgments against Stewart, upon his acceptances, which it had discounted. The judgments were recovered in Baltimore, the place of Stewart's residence, and executions is- sued upon them to May term, 1849, of the County Court, were returned nulla bona, by the sheriff. Prior to this, to wit, on the 18th of March, 1848, the decree in this case passed for the sale of certain real estate, situate in Anne Arundel county, which had been mortgaged by the de- fendant, Stewart, to the complainant, to secure the payment of a debt due him. A sale under this decree was made on the 22d of June following, which, by consent of parties, was rati- fied on the 2d of the then ensuing month of October. After satisfying the claim of the mortgagee, and the expenses of the suit, there remained a surplus of $2,521 73, which was, by the report of the Auditor, assigned to the mortgagor, and this report was on the lltb of the same month and year ratified, and the proceeds, in the usual form, directed to be applied by the trus- tee accordingly. On the 16th of March, 1849, the bank filed a petition in the cause, in which, exhibiting its judgments and the proceedings upon them, and alleging that Stewart had no other property in the county of Baltimore or elsewhere, and insisting that their judgments were to be regarded as liens upon the surplus pro- ceeds of sale assigned to Stewart, which was to be treated as real estate, they pray that the said surplus may be so applied, and in the meantime, and until the matter can be heard and decided, that Stewart may, by injunction, be restrained from transferring or assigning the same, and that the trustee may be required to pay the money into court. HAYDEN VS. STEWART. 461 An order passed upon this petition, for an injunction, as prayed against Stewart, and that the trustee or purchaser should pay the money assigned to Stewart into court, or show cause by a limited day. On the 25th of June last, another petition was filed by the bank, in which, after explaining the reason for failing to serve copies of .the former one, according to the order, it is stated that the purchaser is prepared to pay the second installment of the purchase money, but as his obligation given to the trustee for it had been sent to the petitioner for collection, the purchas- er was in doubt whether he could with safety pay the money, without the express authority of the court in the premises. This petition alleges, that the persons who pretend to. hold this obligation as transferred to them knew, or might have known, of the rights of the petitioner ; and the petition denies that the transfer was made for a valuable consideration, and without notice, and insists that the object was to secure the use of said bond for the defendant, Stewart. The bond of the purchaser, a copy of which was filed with this petition, is dated the 22d of June, 1848, made payable twelve months after date, for $1,450 40, with interest from date, and is indorsed by the trustee and B. M. Heighe, attor- ney, and the cashier of a bank in Baltimore, with whom it had been placed by Mr. Heighe for collection. Mr. Heighe states in his answer, that this bond was assigned to him in April, 1847, under an order from Stewart to the trus- tee, to pay him, Heighe, 1,500, out of the proceeds of the sale. The assignment was, he swears, made in April, 1848, and the respondent swears, that he purchased the bond for a valuable consideration, and without notice, and that it was trans- ferred to him by the trustee, soon after he received it from the purchaser, under the authority of the order of Stewart, for $1,500, the balance thereof being paid in cash; and the res- pondent denies that when he received it, he knew of any fact or circumstance which could invalidate, in any way, his right to the money. The judgments of the bank were recovered on the llth of 39* 462 HIGH COURT OF CHANCERY. September, 1848, and as the trustee's report of the sale was not ratified until the 2d of October following, the mutation from real to- personal estate was not complete at the former period, and, therefore, independently of the views presented by. the counsel for the bank, it must be regarded as having had the character of real estate when the judgments were rendered. Leadenham vs. Nicholson, 1 H. fy G., 266. But these judgments were not rendered in the county in which the land lay, and the very important question is present- ed as to the effect of a judgment under such circumstances. Whether a judgment rendered in one county is a lien on land lying in another, is a question of great practical importance, and it is to be regretted that no cause has yet arisen in which the Court of Appeals has been called upon to put it at rest. In the case of Cape Sable Company, (3 Bland, 606,) the late Chancellor decided that the judgments and decrees of the County Courts, the Court of Chancery and the Court of Appeals, gave a lien upon the lands of the defendant every where in the state ; and if this is to be regarded as settling the law upon the subject, no farther examination of it need be made. The doctrine of the Chancellor in the same case, with regard to the lien of a judgment on real estate, being but an incident of its liability to be taken in execution, and that there can be no lien where there is no direct or indirect mode of having an ex- ecution founded on such judgment, has been, as was conceded in the argument, overruled by the Court of Appeals, and can, of course, no longer be considered as the sound doctrine upon that subject. The authority of the case, therefore, is weakened, and it ap- pears to me, that so much mischief and inconvenience would result from following the decision upon the other point, that I am not prepared to give my assent to it. The difficulties already existing in the examination of titles are, I think, suf- ficiently perplexing, but it is manifest they would be aggravat- ed to a most alarming extent, if the doctrine contended for is to prevail. The 9th section of the act of 1794, chap. 54, authorizes the HAYDEN VS. STEWART. 463 county courts, upon the application of a plaintiff in a judgment upon the return of a nulla bona, on a fieri facias , issued in the county where the judgment was obtained, to issue executions on such judgments, against the goods, chattels, lands and tene- ments of the defendant, lying and being in other counties ; and upon an attested short copy of the judgment, the execution may be renewed from time to time, out of the County Court to which the original execution shall have been removed, as authorized by the act of 1795, chap. 24, in like manner as if the judgment in such case had been rendered therein. When a judgment has been thus transferred, and become in effect a judgment of the county court to which the execution and short copy is sent, it seems to me it should, from that time, have all the incidents and qualities of a judgment rendered in the latter court, and of course be a lien on the lands of the de- fendant. But if the lien of a judgment of one of the county courts of the state is, as said by the late Chancellor, a lien upon the lands of the defendant everywhere within the state, then it would follow, that if land is sold in any one county, upon a judgment rendered in that county, a prior judgment existing in a different county against the same defendant, the purchaser would be disturbed in his title by such proceedings on the prior judgment as are authorized by the acts of assembly which have been referred to ; and, consequently, no one would be safe in buying land at sheriff's sale, without an examination of the re- cords of every county court in the state ; for, as has been re- marked, the privilege of being sued only in the county of one's residence is a privilege which may be, and is, sometimes waved. It appears to me, that the decision to which the late Chan- cellor came, in the case of the Cape Sable Company, is in con- flict with the policy of our laws upon such subjects. The re- gistry acts all require that the deed, or instrument creating the incumbrance on real estate, shall be recorded in the county in which it is situate, for the very purpose of facilitating the investigation of titles, and for the security of purchasers ; and the policy which dictated this regulation would seem to apply with peculiar force to judgments, which if liens at all, are gen- 464 HIGH COURT OF CHANCERY. eral liens upon all the land of the defendants, continuing for twelve years, and fastening as well upon those lands which the defendant held at the time of the rendition of the judgment, as those subsequently acquired. Murphy vs. McCord, 12 G. # J-, 182 ; Coombs vs. Jordan, 3 Bland, 284 ; &tow vs. Tift, 15, Johns. Rep., 458, 464. In the case of the Cape Sable Company, the lien was con- sidered as being dependent upon, and limited by, the right of the creditor to sue out execution upon his judgment, and con- sequently did not exist during the suspension of the right to execute, from lapse of time, or other cause ; and yet, judg- ments were pronounced to be liens from their date, upon all the lands of the defendant, wherever situated, though with respect to lands lying in a different county, and execution could not be taken out until a previous fieri facias had been issued, and re- turned nulla bona to the County Court in which the judgment was rendered. If, upon the reasoning of the Chancellor, the lien was only commensurate with the right to take out execution then, in the case of lands lying in a different county from that in which the judgment was rendered, the lien should have been postponed, until the preliminary proceedings necessary to give the right to send an execution out of the county had been ta- ken ; and yet the Chancellor says, "all lands, wherever they may be, within any one of the counties of the state, are bound by the lien, which fastens upon them from the date of the judg- ment rendered in the County Court." This doctrine of the Chancellor in the Cape Sable case has, it is admitted, so far as it asserts that the lien of a judgment is restricted by the right to take out execution upon it, been re- versed by the Court of Appeals, and, therefore, it does not fol- low, that, because the immediate right to send a fieri facias out of the county in which the judgment was obtained does not exist, the lien is suspended, and the object in referring to the reasoning is simply to show that there is an apparent inconsist- ency in saying that the lien is limited by the right to execute, and yet the lien attaches before the right which gives it has come into being. HAYDEN VS. STEWART. 465 My opinion, therefore, is, upon this question, that a judg- ment rendered in any one of the county courts in this state, is not alien upon lands lying in another, until the plaintiff, in the mode pointed out in the Acts of Assembly referred to, has transferred his judgment to such other county; and that, con- sequently, the bank in this case has no such lien upon the fund in question as can interfere with the right of the assignee, Heighe, to the proceeds of the bond now in court. It is said, however, that the assignee has not stated, in his answer to the petition, how much he paid or advanced for the bond, and that it may be he gave a very inadequate sum for it. The answer, however, will be found to be strictly responsive to the allegation of the petition in this respect. The averment is, that the transfer was not made bona fide, and for a valuable consideration, without notice ; in response to which, Heighe says, he purchased the bond bona fide, and for a valuable con- sideration, without notice of any fact or circumstance which could in any way invalidate his right to the money. The as- signee was not called upon to disclose the amount which he paid as the consideration of the assignment, and, therefore, a general denial of the allegation that he was not a purchaser for value, and without notice, must be sufficient. An order will therefore be passed, directing the proceeds of this particular note to be paid to the assignee, Heighe, and for the dismissal of the petitions as to him. It does not follow, however, that the petitions of the bank are to be dismissed as against Stewart. There still remains a considerable sum due Stewart, and I am by no means prepared to say that the bank, as against him, has not shown its right to have such residue appropriated to pay its judgments. The money, assuming it not to have been paid over, is still under the control of the court, and the petitions make out a case, in which, if they do not establish a lien, they show the creditor to be remediless at law, which brings the case within the decision of the Court of Appeals in Clagett, Adm^r of Beares vs. Worthington, 3 Gill, 84. 466 HIGH COURT OF CHANCERY. The petitions will not, therefore, be dismissed as to Stewart, but will stand over, with liberty to amend, by bringing the in- solvent trustee of Stewart before the court. [No appeal was taken from this order.] BOYD AND HANCE vs. ALEXANDER HARRIS ETAL. MACKALLHARRIS f SEPTEMBER TERM, 1849. vs. LAVEILLE AND WIFE. CONSOLIDATED. [CREDITORS BILL DECREE FOR AN ACCOUNT INJUNCTION.] A DECREE for an account in a suit, by one or more creditors against the execu- tor, either for themselves, or on behalf of themselves and all other creditors, is for the benefit of all, and in the nature of a judgment for all, and from the date of such decree, an injunction will be granted upon motion of either party, and upon a due disclosure of assets to stay all proceedings of any creditor at law. In order, however, to prevent abuse by connivance between an executor or administrator, and a friendly creditor, the practice is, to grant an injunction only when the answer or affidavit of the executor or administrator states the amount of the assets, and upon the terms of bringing the assets into court, or obeying such other order of the court, as the circumstances of the case may require. The power of this court to grant injunctions to restrain creditors from pro- ceeding at law after a decree for an account, is not confined to cases in which the application is made by the executor or administrator, but extends to applications made by the heir, or by another creditor, or a common lega- tee, or perhaps by a residuary legatee. Where judgments at law, upon which executions have issued and been levied upon lands are enjoined ; after the dissolution of the injunction, nothingmore is necessary to authorize the sheriff to sell, than writs of venditioni exponas. The lands are to be regarded as in custodia legis, and the death of the defend- ant in the judgments after execution had issued and been levied, does not render a scirefadas necessary, against his heirs or terretenants. The courts always observe great caution in taking property out of the hands of a sheriff, held by him under execution, and the case of Alexander vs. Ghiselin, BOYD AND HANCE VS. HARRIS. 467 is the only case in which the sheriff's possession has been disturbed, unless upon some grounds affecting the validity of the judgment, or the regularity of the process, by virtue of which the seizure was made. A petition was filed, asking that a sale made by the sheriff under the execu- tions upon the judgments above mentioned, should be vacated, and the prop- erty resold by a trustee appointed under a decree in a creditor's suit, to to which the judgment creditor was not a party. But the court refused to grant the relief asked for, and said, that it was neither warranted by authority, nor by any established principles of law or equity. A court of equity, will, under special circumstances, and when the estate is in danger of being sacrificed in consequence of clouds upon the title, or conflict and confusion growing out of the number and character of the liens and in- cumbrances upon it, interpose, and keeping rival creditors off, sell the prop- erty for the general benefit of all. [Sometime in the year 18 , Basil Jefferson, of Calvert County, since deceased, purchased certain land in that county, of one Tubman K. Long, and died before it was entirely paid for, leaving a daughter, Ann Jefferson, (who afterwards inter- married with the complainant Boyd, and died without issue,) his heiress at law. Levin W. Ballard was appointed his ad- ministrator, and afterwards, with the consent of said Ann, and in order to save the personalty, he sold the land purchased of Long, to Alexander Harris : who, to secure the payment of the purchase money in installments, gave Ballard his bonds payable at the times therein specified. The personal estate was then handed over to Ann Jefferson, and Ballard, on the faith of said securities given him by Harris, proceeded to pay a large por- tion of the balance of the purchase money due by his intestate, Jefferson, and afterwards departed this life ; whereupon the other complainant, Richard Hance, was appointed administra- tor de bonis non, of Basil Jefferson, and Robert W. Kent was appointed administrator, and James Kent, (on the death of Robert,) administrator de bonis non of said Ballard. The original object of this suit, which was instituted by Boyd and Hance, (the former as heir of his deceased wife, and the latter as adm. d. b. n. of Basil Jefferson,) against Alexan- der Harris and others, was to compel the execution of his contract of purchase by Harris, and a proper application of the purchase money due by him ; but in 1849, Harris being then 468 HIGH COURT OF CHANCERY. dead, it was, by bill of revivor and supplement, against his heirs and his personal representative Mackall Harris Kent not be- ing made a party converted into a creditor's suit. Alexander Harris died in 1847, and in September term, 1848, Mackall Harris, his acting executor, filed his bill against the heirs at law of the deceased, for a settlement of the estate of the deceased, and also for a sale of his real estate to pay his debts, in case the personalty should prove insufficient lor that purpose. This last case, by an agreement to which Kent was not a party, was consolidated with the case of Boyd and Hance against Harris and others ; and, on the 9th of January, 1849, a decree was passed, in both cases consolidated, for a sale of the real estate of said Harris, deceased, to pay his debts. It further appeared from the papers in the case of Alexander Harris and others, against James Kent, administrator d. b. n. of Levin W. Ballard, deceased, which were agreed to be read at the hearing of this case, that previous to the death of said Harris, to wit, in the year 1841, Kent recovered judgment on the bonds given as above mentioned by Harris to Ballard to se- cure the payment of the purchase money due by him, and also on a promissory note alleged to have been given also by Harris, for the same purpose, but which, he contended, was given to take up one of said bonds, although in consequence of Bal- lard's death the bond was never delivered to him. That, in 1845, Harris filed his bill in the equity side of Calvert County Court, in which those judgments were rendered, praying and obtaining upon the grounds therein stated, an injunction to stay execution upon those judgments ; which injunction, the case being transferred to this court, was, in October, 1848, dissolved as to all of the judgments, except the one rendered upon the promissory note. Kent, thereupon, proceeded to sell a portion of the land of said Harris, to satisfy said judgments, and through his agent became a purchaser thereof himself, at a price greatly below its value. On the second of November, 1849, Merrill and others, judg- ment creditors of Alexander Harris, deceased, filed their peti- tion in this court, praying that the sales to Kent might be an- BOYD AND HANCE VS. HARRIS. 469 nulled, and the lands purchased by him again sold by the trus- tee appointed under the decree in this cause ; and the matter of the petition having been argued before him, the Chancellor delivered the following opinion : THE CHANCELLOR : After reviewing, with the industry and ability for which he was so pre-eminently distinguished, all the authorities upon the question, Chancellor Kent, in the case of Thompson vs. Brown, 4 Johns. Ch. Rep., 619, stated, that it was "finally settled in the English Chancery that upon the usual decree to account, in a suit by one or more creditors against the executor, either singly for themselves, or specially on behalf of themselves and all other creditors, the decree is for the benefit of all the cred- itors, and in the nature of a judgment for all ; and all are enti- tled, and are to have notice to come in and prove their debts before the master ; and that from the date of such decree, an injunction will be granted upon the motion of either party, and upon a due disclosure of assets, to stay all proceedings of any of the creditors at law." At one time, and until a compara- tively recent period, this remedy would not be given unless where a bill for an injunction had been expressly filed, against the creditor whose action at law was sought to be restrained, but it was subsequently held, in order to save expense, that the executor when sued at law should be permitted upon giv- ing notice to the creditor, to bring him in, and upon motion, to restrain him by injunction. Paxton vs. Douglass, 8 Ves. Jun'r, 520. In order, however, to prevent abuse by connivance between an executor or administrator, and a friendly creditor, the prac- tice is to grant an injunction only when the answer or affidavit of the executor or administrator states the amount of the assets, and upon the terms of bringing the assets into court, or obey- ing such other order of the court, as the circumstances of the case may require. 1 Story Eq., sec. 549 ; Gilpin vs. Lady Southampton, IS Ves., 459. The late Chancellor, in the case of Hammond vs. Hammond, VOL. 140 470 HIGH COURT OF CHANCERY. 2 Bland, 362, 36 , said, that though the court when asked for such an injunction, might look into the answer of the executor or administrator and see what amount he admits to be in his hands, or order him to make an affidavit of the amount, and to bring the money into court, yet that it is not an absolute rule of the court to refuse an injunction for want of such an affidavit. It is also regarded as settled practice, that the power of this court to grant injunctions to restrain creditors from proceeding at law, after this court has passed a decree to account, and thereby assumed the administration of the assets, is not con- fined to cases in which the application for its interposition is made by the executor or administrator; but, it extends to ap- plications made by the heir or by another creditor, or a com- mon legatee, or perhaps by a residuary legatee. 3 Daniel's Ch. Prac.,1835. It is therefore supposed, that the court has the power, at the instance of the petitioners, E. H. Merrill and others, and in a proper case would exercise it, to restrain a creditor from pro- ceeding upon judgments against the administrator of the de- ceased Alexander Harris. [Having made these preliminary remarks, the Chancellor pro- ceeded to state the nature of the case, after which he con- tinued:] It is believed that no case has been decided which would justify the court in granting the relief asked for by this petition, and that it is not warranted by any established principle of law or equity. I am not prepared to go to the extent of saying, that this court may not, after the usual decree for an account, or quod computet, in a creditor's suit against the executor, or after a decree for the sale of the real estate upon such a bill by which the court assumes to itself the general administration of the assets of the deceased debtor compel a prior judgment creditor to come in and share the fate of the other creditors, when such prior judgment is de bonis testatoris simply. In the case of Lee vs. Park, 15 Eng. Cond. Ch. Rep., 715, BOYD AND HANCE VS. HARRIS. 471 the master of the rolls refused, under the special circumstances of that case, to restrain the creditor from issuing execution upon his judgment de bonis testatoris, et si non, de bonis pro- priis, as to costs, rendered before a decree against executors to account. But it is clear that the refusal was not upon the ground that such was the invariable course of the court, and one or two cases are referred to in which prior judgment credi- tors had been so restrained from proceeding upon their judg- ments. And in the case of Hammond vs. Hammond, 2 Bland, 362, the late Chancellor said, that if a bond creditor has got a judg- ment against the executor or heir before the decree, then after the decree, although such creditor may come in and prove as a judgment creditor against the real or personal estate, yet the court will, on application, grant an injunction to prevent him from taking out an execution against the assets. But the case now under consideration is radically and widely different from any of those referred to in the argument. Here the judgments were rendered against the deceased debtor in his lifetime, and executions upon them were issued and laid upon the property afterwards purchased by Kent, also before the death of Harris. These judgments, it is true, were afterwards enjoined, upon a bill filed by Harris, but upon the dissolution of the injunction in October, 1848, nothing more was necessary, to authorize the sheriff to sell, but writs of venditioni exponas. The lands are to be regarded as in custodia legis, and the subsequent death of Harris interposed no obstacle to the proceedings of the sheriff. The case of Hanson vs. Barnes' Lessee, 3 G. Sf J., 359, is conclusive to show, that notwithstanding the death of Harris, after the execution had issued and been levied, a scire facias against his heirs or terretenants was not necessary, and that a sale under such process passed the title to the purchaser. In- deed, the case of Hanson vs. Barnes goes beyond this, because the sale in that case was decided to transfer the title, though the execution had not been levied before the death of the 472 HIGH COURT OF CHANCERY. debtor. It had been issued and placed in the hands of the sheriff, but not actually levied, before the event of the death occurred. In this case, the statement of facts shows that the executions were levied before the death of Harris, and unless the case of Hanson and Barnes is to be overturned, the sheriff was fully authorized after his death to proceed and sell the property. Great caution has always been observed by the courts in taking, or authorizing property to be taken, out of the hands of a sheriff, held by him under executions, and it probably may be safely asserted that the case of Alexander et al. vs. Ghiselin et al., 5 Gill, 138, is the only case in which the sheriff's possess- sion has been disturbed, unless upon some grounds affecting the validity of the judgment, or the regularity of the process, by virtue of which the seizure was made. But the case of Alexander vs. Ghiselin was confessedly de- cided upon the special terms of the act of 1805, ch. 110, sec. 7, the true construction of which, the court said, required the trustee of the insolvent to take into his possession all the estate and effects to which he had a right of possession at the time of his application, and to sell and dispose of all his property, whether 7 in possession, remainder or reversion, and to pay off the liens and incumbrances thereon. Regarding an execution as a lien on personal property only when actually levied prior to the insolvent's petition. The present application, moreover, requires the court to stretch its authority beyond even the case of Alexander and Ghiselin. There the trustee in insolvency was decided to be authorized to take property out of the hands of the sheriff, though actually levied on prior to the insolvent's petition. But in this case, the property is no longer in the hands of the sheriff, having been before the present petition was filed, sold by him in the due execution of his duty, and in conformity with the process in his hands. Even then, if the principles settled in the case of Alexander vs. Ghiselin could be invoked in aid of these petitioners, which is not admitted, still they stop short of warranting the relief BOYD AND HANCE VS. HARRIS. 473 now asked for, which is not merely that a judgment creditor who has obtained his judgment in the lifetime of his deceased debtor, and issued and levied his executions prior to that event, shall be compelled to come in and await the proceedings in a creditor's suit, but that a sale made under such an execu- tion shall be vacated, and the property sold resold by the trustee appointed in the creditor's suit. Some stress has been laid upon the fact that Kent was a party to the original bill filed by Boyd and Hance in 1845, and which was subsequently to the death of Harris converted into a creditor's suit. But the bill to which Kent was a party, and to which he responded, had none of the features of a creditor's bill, and although the bill of revivor and of supplement, filed after the death of Harris, may have given it that character, Kent not having been made a party to this latter proceeding, it cannot be right to affect him with it. He answered the original bill and consented to abide by the decree which the court might pass upon the case made by that bill. But surely this consent should not oblige him to submit to a decree passed upon another bill to which he was no party, and to which he never responded. It was the unquestionable right of Kent, if it is proposed to bind him by the supplemental bill, to file his answer to it, when he might, and probably would, have pro- tested, under the circumstances, against being brought in and exposed to the delay of a creditor's suit. He had his judg- ment and execution levied, and would most likely have said, I prefer to proceed upon them, to coming here and waiting the result of this cause. That he had a right to answer the sup- plemental bill is clear. Thomas vs. The Visitors of Freder- ick School, 7 G. #/., 387. It has been urged that this is one of those cases in which the court, interposing for the good of the general body of the creditors, will prevent an individual creditor from proceeding separately to enforce his own debt. That this court has, under special circumstances, and when the estate was in danger of being sacrificed, in consequence of the clouds upon the title, or conflict and confusion growing out of the number and charac- 40* 474 HIGH COURT OF CHANCERY. ter of the liens and incumbrances upon it, interposed, and keeping the rival creditors .off, sold the property for the general benefit of all, seems to be admitted. It is a power, however, of rather an extraordinary kind, and to be cautiously exerted. The difficulties and embarrassments which surround this estate are not perhaps of such a complicated character as to justify so strong a proceeding ; and, besides, here the sale has been made, and no case I presume has gone to the extent of depriv- ing a creditor of the fruits of a sale actually made. It is admitted that the property purchased by Kent sold for less than its actual value. This is to be regretted, but I see nothing in the cause to impute blame to him on that account ; and there- fore I do not think the sale, for this reason, should be set aside. Being of opinion, then, that the relief prayed by the petition cannot be granted, it must be dismissed. [No appeal was taken from this order.] CLARK AND MANKIN vs. ELIZABETH B. ABBOTT j. SEPTEMBER TERM, 1849. AND WM. H. V. CRONISE. [PRACTICE SALES BY TRUSTEES RENTS OF MORTGAGED PROPERTY.] A COURT of equity will always ratify and confirm that when done, which, as a matter of course, if previously applied to, it would have ordered to be done. A decree was passed, authorizing the trustee to sell so much of the mortgaged property as would be necessary to pay the amount then due. The execu- tion of this decree was stayed by injunction, and in the mean time, other in- stallments of the mortgage debt became due. After the injunction was dis- solved, the trustee sold so much of the property as would satisfy the amount due at the time of sale. HELD That, as the decree must be regarded as standing as a security for the entire mortgage debt, the court, if applied to, would have empowered the trustee to do what he has done, and will, therefore, give its subsequent assent to the act. CLARK VS. ABBOTT. 475 A mortgagee having given notice to the tenants holding the mortgaged prem- ises, under leases granted by the mortgagor, either before, or after the date of the mortgage, is entitled to receive from the tenants, the rents in arrearat the time of the notice, as well as those which accrue afterwards. Trustees, acting under decrees to sell, have been permitted, when sales of the property could not be readily or advantageously made, to rent it, and account for the rents to the parties entitled to the proceeds, and the court will give like authority to collect and account for rents due, when the sales are effected. [The facts of this case will appear from the Chancellor's opin- ion.] THE CHANCELLOR: This cause is brought before the court upon the order of the 17th of September last, passed upon the petition of the com- plainants, praying that the trustee appointed to sell the mort- gaged property may be authorized to collect and receive cer- tain rents and interest which had accrued thereon prior to the sale. And, in addition to the answer of the defendant, Mrs. Abbott, in opposition to the prayer of the petition, objections are in- terposed by her to the ratification of the sale made by the trustee. The decree which was passed on the 8th of July, 1848, au- thorized the trustee to sell so much of the mortgaged property as would be necessary to pay the amount then due ; and the first and second objections to the ratification of the sale, charge, that he transcended his power in this respect, by selling to an amount far exceeding the installments due at the period of the decree. Soon after the passage of the decree, to wit, on the 22d of February, 1849, a bill was filed in this court by Mrs. Cronise, who was a party to the mortgage, praying for the rea- sons therein stated, that the execution of the decree might be stayed by injunction, which was ordered and continued in force, until the 23d of July last, when it was so far dissolved as to authorize the trustee to sell the interest of Mrs. Abbott and Cronise, the husband of the complainant in that case, but continued in force with regard to the reversionary interest of the complainant. 476 HI <>H COURT OF CHANCERY. The trustee thereupon proceeded to sell ; on the 23d of August last, he made sale of the property, or of the interests of Mrs. Abbott arid Cronise the husband, therein. The sales amount- ing in gross to the sum of $6,149 78. The installments of the mortgage debt due at that time amounted to $5,502, and on the 29th of the then ensuing month of September a further install- ment of $750 became due, which would have carried the debt to an amount exceeding the gross sum of the sales. It is quite probable, indeed, that the latter will be little, if any, more than adequate to pay the amount actually due at the period of the sale ; when the expenses and costs of the proceed- ings, including the commission of the trustee, are deducted. Looking to the language of the decree, the trustee was only authorized to sell to pay the amount then due ; but it can hardly be questioned that upon an application, stating the delay, and the causes which had delayed the execution of the decree, the court would have authorized the trustee to sell, to pay the installments which had fallen due in the interval ; and it is a well establish- ed principle of equity, that the court will sanction, when done, what, upon application, it would have authorized to be done. The sale is not impeached upon the ground of inadequacy of price, nor upon any other ground affecting the substantial merits. The objection is, that more property has been sold than was sufficient to pay those portions of the mortgaged debt which were due when the decree passed. The answer to this is, that before the trustee could sell, other portions of the debt became due, and as the property mortgaged was a security for those other portions, as well as for those which became due an- terior to the decree ; and as the decree must be regarded as standing as a security for the entire mortgage debt, the court, if applied to, would have empowered the trustee to do what he has done, and will now, upon the principle already referred to, give its subsequent sanction to the act. The third exception taken to the ratification of the sale, was, "that the said trustee has sold stock, and debts secured by mortgage, whereas such interests were not liable to be sold un- der said decree." The mortgagors professed to convey to the CLARK VS. ABBOTT. 477 mortgagees, "all the estate and property, real, personal and mixed, without reservation or exception, wheresoever situate or being, to which they or either of them were in any manner en- titled, interested in, or could claim ;" and the decree was for a sale of "the mortgaged property in said proceedings mentioned, or so much thereof," &c. [As to this exception, the Chancellor said :] In answer to the third exception to the ratification of the sale, it may be sufficient to say, that the decree authorizes a sale of the mortgaged property, without restriction or limitation, and it is believed, that if this court has erred, the only remedy is by appeal, or by some other proceeding by which such errors can be reviewed and corrected. The propositions of law announced above, are maintained, it is thought, by the cases of Campbell vs. McComb,4: Johns. Ch. Rep., 534, and Harris fy Chauncey vs. Alcock, 10 G. # J. 226. By the former it was decided, that though the mortgagor, as owner of the equity of redemption, may, by paying the interest and costs due, stay the sale, the decree of foreclosure will re- main as a further security to enforce the payment of the future interest and the installments of the principal, as they respectively become due. And by the latter, at page 252, the position that the court will always ratify and confirm that when done, which, as a matter of course, if previously applied to, it would have or- dered to be done, is stated with a perspicuity and emphasis which is incapable of misconstruction. No sufficient reason, then, appearing for vacating the sales, they will be confirmed ; and the only question remaining to be disposed of, arises upon the petition of the complainants, that the trustee may be authorized to receive the rents and interests which accrued on the mortgaged property prior to the sales. It appears by a statement of the claim of the complainants, filed in conformity with the act of 1833, ch. 181, that the install- ments of the mortgage debt due and to become due, amount to $10,002, and as the gross proceeds of the sales are only $6,149 78, the deficiency is large ; and the mortgagees are threatened 478 HIGH COURT OP CHANCERY. with a heavy loss, from which probably they may not be pro- tected, even if their present application is successful. The authorities show very clearly, that a mortgagee, having given notice to the tenants holding the mortgaged premises under leases granted by the mortgagor, either before or after the date of the mortgage, is entitled to receive from the tenants the rents in arrear at the time of the* notice, as well as those which accrue afterwards. Moss vs. Gallimore and another, 1 Douglas, 278; Pope vs. Biggs, 17 Eng. C. L. Rep., 368 ; 1 Powell on Mortgages, 175, 176, 177. In this case, the requisite notice appears to have been given on the 23d of February last, from which period it is presumed no payments have been made to the mortgagors ; and as from that period the tenant could not be compelled to pay the mort- gagors, it would seem to follow, that if the rents cannot be col- lected under the authority of this court, and applied to the ex- tinguishment of the mortgage debt, they cannot be collected at all. The objection taken by Mrs. Abbott to the application of the petitioners is, that by the terms of the decree, the petitioners are entitled to ask for nothing more than a sale of the principal mortgaged estate ; and that this court has no authority or juris- diction, by order on said petition, to direct said rents or ar- rears, or any part thereof, to be collected and paid over to said petitioners. But cases are not unfrequent in this court, in which trustees, acting under the authority of decrees similar in their terms to the present, have been permitted, when sales of the property could not be readily or advantageously made, to rent it, and account for the rents to the parties entitled to the proceeds of the sales ; and no reason suggests itself why the court may not give the like authority to collect and account for rents due, when the sales are effected. And as in this case it is apparent that the money raised by the sales is quite inade- quate to pay the mortgage debt, the propriety of applying the rent to that object is most obvious. The court will, therefore, give the trustee power to collect the interest and rents due upon the mortgaged property, and HOLLIS VS. HOLLIS. 479 bring the money into court, to be disposed of as justice may re- quire. If the application of these rents shall accelerate the payment of the debt due the mortgagees, full authority for such a course may be found in the case of Burton vs. Smith et al., 13 Peters, 464. [No appeal was taken from this order.] FRANCES HOLLIS BY HER NEXT FRIEND > DECEMBER TERM, 1849. vs. THOS. I. HAYES AND AMOS HOLLIS. [VACATING CONVEYANCE RESULTING TRUST STATUTE OF FRAUDS.] THE circumstances which will warrant the court in setting aside a conveyance actually executed, must be much stronger than would be required to induce it to withhold its aid, if applied to, to compel an execution of a mere agree- ment to convey. Inadequacy of price may be so gross and manifest, as to induce the court to set aside a conveyance actually made. Where the consideration for a conveyance is paid by one, not a party to the instrument, there is a resulting trust in his favor a trust implied by law, from the presumed intention of the parties, and the obvious justice of the case ; which may be proved by parol being excepted from the statute of frauds. [The complainant in this case, who was a feme covert, and sued by her next friend, was, in her own right, seized and possessed in fee. at the time of her marriage, of a parcel of land containing about one hundred acres, and worth about $1700. Sometime after her marriage, she separated from her husband, who was a man of prodigal and intemperate habits, and the interest acquired by him in her land, was afterwards taken in execution for his debts, and sold at constable's sale to Thomas Hendon. In the year 1836, the complainant induced the defendant, Hayes, who had married her niece, to purchase of Hendon the interest sold to him as above mentioned ; and 480 HIGH COURT OF CHANCERY. to enable him to obtain the money required for the purchase, she, together with her husband, executed to him a deed of conveyance of the land, which he mortgaged to Mrs. Herbert, from whom he borrowed the money, as a security for its re- payment. The amount of the money thus raised upon the mortgage was $150, of which, $100 was paid to Hendon on account of the land, and the rest was paid to him, for some articles of personal property, which had been also sold for the husband's debts and purchased by said Hendon. The deed from Hendon to Hayes was absolute on the face of it, as was also the one from the complainant and her husband to him, and although a money consideration was expressed in the latter, none was ever paid. The defendant Hayes, claiming to hold the absolute estate in the property conveyed by these deeds, the complainant in- stituted this suit against him, contending, that the object of the whole transaction, was, by conveying the property to the de- fendant, Thomas I. Hayes, in trust for her separate use, to secure it from the further execution for her husband's debts, (his interest therein having been several times sold by his creditors, and redeemed by her,) and 'that, although there was no such trust expressed in the deeds, it was the clear under- standing with Hayes, that he was to take the estate conveyed by them, subject thereto, the complainant prayed that Hayes might be declared to hold the property in trust for her separate use ; that he should be compelled to convey the same to a new trustee, and account for the profits received from it by him ; and for general relief. By a supplemental bill afterwards filed, she prayed that the deed from herself, and her husband, might be declared void, and that she might be declared to hold the property to her separate use. The defendant, in his answer, denied the trust, and relied also upon the statute of frauds. In addition to the above facts, disclosed by the pleadings and proofs fn the cause, it was also proved, that the complain- ant was an aged woman, and unacquainted with business matters ; and that, whilst the negotiation was pending, Hayes HOLLIS VS. HOLLIS. 481 said that it was for the "use" or "the good" of the complain- ant. It was proved further, that the complainant at the time of executing the deed, expressed herself entirely satisfied with it ; but that nothing was said at the time, of any trust.] THE CHANCELLOR: That the defendant Hayes, if his deed is allowed to stand, will have acquired a property, at a price greatly below its value, even if he pays the $100 to Mrs. Herbert, out of his pocket, is clear beyond controversy. He paid but $100 for the land, and there is no witness, who does not estimate it to be worth $1400, whilst one of them carries it as high as $2000. The average of the estimates is not much, if any, below $1750, The contract, therefore, appears to be grossly against con- science, unreasonable, and oppressive, and there can be no question, as it seems to me, that if the defendant in this case, was a complainant seeking to enforce such a contract, the court would refuse to enforce it, upon the ground of the great inadequacy of the price. But this is a case, in which an attempt is made to set aside a conveyance actually executed, and the circumstances which will warrant the court in exe- cuting such a power, must be much stronger than would be re- quired to induce it to withhold its aid, if applied to, to com- pel an execution of a mere agreement to convey. The inade- quacy of price, may, however, be so great, as to induce the court to vacate a conveyance actually made. The difference between the price paid, and the value of the thing purchased, may be so gross and manifest, that, as said by a distinguished writer on this branch of the law, "it must be impossible to state it to a man of common sense, without producing an ex- clamation at the inequality of it." Sugden on Vendors, 193. The idea of fraud, or undue imposition, or of some circum- stance which vitally affects the bona fides of the transaction, necessarily and unavoidably presents itself, when the property is parted with upon terms so utterly disproportioned to its value. It is not, however, deemed necessary to decide in this case, VOL i 41 482 HIGH COURT OF CHANCERY. whether the conveyance to the defendant Hayes, would be avoided upon the ground of inadequacy of price, as it seems to me, that there are other grounds upon which the relief sought by the bill might be granted, if the case was in a condition for a final decree. The bill alleges, and the evidence shows, that the considera- tion for the conveyance was paid by the complainant, or bor- rowed upon the credit of her title, and, therefore, that there is a resulting trust in her favor, a trust implied by law, from the presumed intention of the parties, and the obvious jnstice of the case, and if such is the case, the statute of frauds relied upon in the answer, is no defence, these trusts being excepted from its operation. 4 Kent's Com., 305 ; Dorsey vs. Clarke, 4:H. fy J., 551, 556. That such trusts do result, and that parol evidence is admis- sible to establish the facts upon which they arise, not only against the deed, but in .opposition to the answer, has been shown by Chancellor Kent upon a careful review of the cases. Boyd vs. McLean, 1 Johns. Ch. Rep., 582. The inclination of my mind, therefore, is, that there is a re- sulting trust in this case in favor of the complainant, and I might proceed at once to pass such a decree, but it seems to me to be proper before any final decision is made, that the mortgagee who advanced the money with which Hendon was paid, should be before the court, as it does not very clearly ap- pear what effect such a decision may have upon the mortgage. That mortgage was executed by Hayes, as the absolute owner of the property, and a decree pronouncing him to be only the trustee of the complainant, or vacating the convey- ance to him, and appointing a new trustee, might so affect the validity or operation of the mortgage, as to require the pres- ence of the mortgagee as a party to the bill. This is a ques- tion which is certainly not meant to be decided now, nor any intimation even given of the impression which may have been made upon the mind of the court; all- that is intended at this time to be said is, that it is thought advisable that the mort- gagee should be brought in as a party ; and the case will be CHILDS VS. SMITH. 483 ordered to stand over, with liberty to amend the bill to that effect. [The required amendment having been made, and some ad- ditional testimony, (not materially varying the merits of the case) having been filed, the case was again submitted to the Chancellor, who thereupon passed a decree requiring Hayes to convey the property in dispute to a new trustee, to be held by the latter for the sole and separate use of the complainant subject to the mortgage debt of Mrs. Herbert ; and said Hayes was decreed to account with the new trustee for the profits of the estate received by him, from the time it came into his pos- session to the time of his delivering it up to the new trustee, subject to such allowances as he might prove himself enti- tled to.] [The decree in this case was reversed upon appeal.] J. D. CHILDS AND WIFE ~\ vs. > DECEMBER TERM, 1849. LUCY M. SMITH. 3 [JURISDICTION DOWER.] IT is conclusively established, that a court of equity may interfere by injunc- tion to prevent the commission of waste. The objection to the jurisdiction of the Court of Chancery to stay waste com- mitted by a dowress on her dower lands, upon the ground, that the remedy should be sought on the equity side of the County Court, where the proceed- ings for partition were had, would apply with equal force to every appli- cation to enjoin proceedings upon judgments and suits at law in the county courts, and is, therefore, untenable. The interest of the widow, is a continuation of the seizin of her husband ; the seizin of the heir being defeated ab initio, the moment the certainty of the estate to be held by her is ascertained by the assignment. The commissioners divided an estate into eight parts, and assigned a third of each division to the widow, as her dower, one lot consisted almost entirely of wood, the others of arable lands. HELD That the widow was not bound to use each parcel, as if her husband had died seized only of the one lot to which such parcel belonged ; but might take from the wood lot, fuel and timber for the use of the cultivated lands. 484 HIGH COURT OF CHANCERY. [Fielder B. Smith, late of Calvert county, being possessed of valuable real estate in said county, departed this life in the year 1845, leaving a widow, Lucy M. Smith, (the present defendant,) and several children and the representatives of other children, his heirs at law ; five of them being children of the defendant, and the other descendants of the deceased by a former marriage. By proceedings under a commission for par- tition, issued out of Calvert County Court, the lands of the deceased were divided into eight parts, and assigned to the parties entitled ; a third part of each division having been as- signed to the defendant, for her dower. One of these eight parts was allotted to Sarah Ellen Childs, sole representative of Sarah A. Smith, daughter of the deceased by his first mar- riage ; said Sarah Ellen, together with her husband, J. D. Childs, being the present complainants. The widow pos- sessed herself of the several parcels so assigned to her, and commenced cutting from that assigned her out of the land of the complainants, nearly all her fire-wood, and fencing for other portions of her land ; removing a large portion of fencing from the land on which she resided, and replacing it with new rails cut from her dower on the complainants' land. The com- plainants filed their bill for an injunction to restrain her from the commission of further waste on said land, charging her with the intention to benefit her own children, to the injury of the reversionary interests of her step-children ; insisting that she must use each parcel of land assigned her, separately, and denying her right to cut more wood from each than was re- quired for the use of the same. The defendant, by her answer, denied the intention charged, and asserted her right to use all the portions assigned her as one entire dower. She averred, that the part assigned to her out of the share of the complain- ants, consisted almost entirely of wood, and was assigned to her to use in the manner charged, and was only useful to her for that purpose. She also objected to the jurisdiction of the court, first, because the complainants had an adequate remedy at law, in an action on the case; and, secondly, because their remedy, if they had any in equity, should have been sought on CH1LDS VS. SMITH. 485 the equity side of Calvert County Court, where the proceed- ings for the partition were conducted ; and moved for a disso- lution of the injunction. This motion was argued before the Chancellor, who, in his opinion, proceeded first to dispose of the objections above mentioned.] THE CHANCELLOR : This objection, [the first,] did not appear to me to be tena- ble, and therefore I consider it proper to relieve the counsel for the complainants from the necessity of replying to the argu- ment in support of it. The bill alleges, not only the- commission of waste by the defendant, the dowress, but an intention to do so in future, and it seems to me to be conclusively established, that a court of equity in such circumstances, may interfere by injunction. 1 Roper on Husband and Wife, 419, 420, 421 ; Whitfield vs. Bewit, 2 P. Wm., 240. Chancellor Kent says, that the an- cient remedies for waste by writ of estrepement, and writ of waste at common law, are essentially obsolete, and the modern practice in this country, 'as well as in England, is ready to re- sort to the prompt and efficacious remedy by an injunction bill, to stop the commission of waste, when the injury would be ir- reparable, or by a special action on the case, in the nature of waste, to recover damages. 4 Kent's Com., 77. [As to the other objections, the Chancellor said :] The reasoning in support of the objection, would seem to extend to every case in which our equity tribunals are called upon to interfere with the progress of suits, or to stay the exe- cution of judgments at law. The partition was made under the act to direct descents, and the proceedings was on the common law side of the County Court ; and no reason suggests itself, why this court should, upon a proper case, abstain from grant- ing relief to the complainants, which would not apply with equal force to every application to it, to enjoin proceedings upon judgments, and suits at law in the county courts. 41* 486 HIGH COURT OF CHANCERY. The argument resulting from the convenience of the thing, and the more perfect familiarity which the county courts, in the exercise of their equity jurisdiction, would have of proceed- ings had in the same courts, as courts of common law, would apply as well in the one case, as the other; and the effect would be, that this court would be stripped of its power, in every case, of arresting, upon equitable grounds, the proceed- ings of the courts of law. This view of the subject would seem to render the objection untenable ; and I therefore dis- miss it, and proceed very briefly to examine the case upon its merits, as disclosed by the bill and answer. [After reviewing the facts of the case, the Chancellor pro- ceeded.] - v -. r An injunction was ordered upon this bill, not because I adopted, or in any way assented to this view of the relative rights of these parties, [that the widow could only use each parcel by itself,] but upon the allegation, that the widow, abusing her right to take from her dower land, wood for fuel, fences, and other necessary purposes, was acting with a view to benefit her own children, at the expense of her step- children. If, according to the allegation of the bill, there was upon each parcel of the dower land, a sufficient supply of wood and timber for its support ; and the dowress, for the purpose of sparing that which stood upon the land in which her own children held the fee, was unnecessarily cutting down and using the wood and timber which stood upon the land, the in- heritance of which was in her step-children, I thought, and still think, it was the duty of this court, to interpose by way of in- junction. Though a dowress, like all other tenants for life, has a right to take, what is called reasonable estovers ; that is, wood from off the land for fuel, fences, &c., she cannot be per- mitted to abuse this right, and especially, the court would not stand by and see her abuse it, upon such motives as are im- puted to her by this bill. CHILDS VS. SMITH. 48 . Upon examining the return of the commissioners, it is by no means apparent, that the partition among the heirs, preceded the assignment of dower to the widow ; and seeing that by the 27th section of the act of 1820, ch. 191, the dower is to be ascertained and laid off, before the division among the heirs is made, it may be very fairly inferred, that though the lines of the several lots may have been previously run out and laid down ; yet still the dower was ascertained, and laid off, before an actual allotment and partition among the heirs. But at all events, be this as it may, the act of the commissioners, in laying down and assigning the dower, and making partition among the heirs, was not consummated and binding, until their return was ratified by the court, and, therefore, their whole proceedings in assigning dower, and making partition, may be regarded as taking effect at the same time. I do not, however, regard this question, as at all material to the rights of the widow in her dower lands. Whether the assignment of her dower proceeded, or followed the partition among the heirs, in the order of time, can, in my judgment, have no influence in determining the extent to which she may use her lands. Her interest is a continuation of the seizin of her husband ; the seizin of the heir being defeated, ab initio, the moment the certainty of the estate to be held by the widow is ascertained by the assignment. 1 Roper on Husband and Wife, 427 ; 4 Kent's Com., 69. So soon, then, in this case, as the particular lands which the widow was to hold for her dower, were ascertained by the assignment of the commissioners, the right of the heirs was defeated, whether the partition among them had been made, or not, and the dowress was in, in legal intendment, of the seizin of her husband. The Chancellor cannot subscribe to the doctrine, that the widow was bound to use each parcel of her dower land, as if her husband had died seized only of the one lot, to which such parcel belonged. The inconvenience of such a rule would be so severely felt, that nothing but the most con- trolling authority would induce me to follow it. HIGH COURT OF CHANCERY. In our state, where the arable and wooded lands of our land- holders are so frequently separated by intervening tracts, and in which for the advantage and convenience of all the heirs it is necessary that the dower of the widow should be divided into several parcels, the adoption of such a rule would work much practical mischief. Indeed, I am strongly inclined to think the practicability of making equal partition of many estates would be frustrated, if the widow must either have her entire dower laid off in one unbroken parcel, or be subject to the rule contended for, if divided into separate parcels. No authority has been .referred to in support of the position, and I am persuaded, none. can! be found. The cases of White vs. Willis, 7 Pick., 143, and White vs. Cutler, 17 Pick., 248, prore, that a lot of wood land, separated from the cultivated lands, may be included in the assignment of dower, and when so included, the widow may take from it fuel and timber for the use of the cultivated lands. - The equity of this bill, as already observed, consists in the allegation, that the dowress, having upon each part of her dower, wood and timber, sufficient for its support, was without necessity, and for the benefit of her own children, and at the expense of the complainants, cutting down, and using the wood upon! their land, for the use and improvement of the lands, in which the fee was in her children. This allegation is, however, expressly denied by the answer, and as upon its truth, in my opinion, depends the propriety of the injunction ; and as the denial of the answer, upon this motion, and in the present state of the case (there being no evidence) is conclu- sive, it follows, the injunction must be dissolved. [No appeal was taken from this order.] THOMPSEN VS. DIFFENDERFER. 489 LAURENCE THOMPSEN ET AL. ^ vs. > DECEMBER TERM, 1849. AUGUSTUS DIFFENDERFER ET AL.3 [RECEIVER RULES OF EVIDENCE AND PRACTICE.] THE court interposes, by appointing a receiver against the legal title, with reluctance, and fraud, or imminent danger, if the intermediate possession should not be taken by the court, must be clearly proved. Though the court will not, by the appointment of a receiver, deprive a prior mortgagee, having the legal title, of his right of possession, it will not permit him to object to such appointment, by any act short of a personal assertion of his legal right, and taking possession himself. The power of appointing a receiver, is a delicate one, and to be exercised with prudence and circumspection, yet, upon a sufficent cause stated and proved, the court will exercise the power, though, by so doing, the business of the defendants as merchants would be broken up. It was urged, that the defendants should be required to offer proof in support of some of the statements of the answer, though responsive to the bill ; be- cause such proof was within their reach, whilst it was inaccessible to the complainants. HELD That the rule, that the answer, when responsive to the averments of the bill, shall be taken as true, unless discredited by two witnesses, or one witness with pregnant circumstances, is not subject to the modification which the in- troduction of such a principle would involve. [The original and amended bills in this case, were filed by certain of the creditors of the firm of Diffenderfer and Brothers, against the members of said firm, and Sampson Cariss and Catharine S. Diffenderfer, stating that the defendant first named had commenced business in the city of Baltimore about the year 1846, and by falsely representing the extent of their means, had obtained credit with the several complainants and others, to a large amount ; that about the month of October, 1849, they ceased to pay their debts, and afterwards called a meeting of their creditors, but at the meeting, and at others subsequently appointed by them, and in fact ever since, had re- fused to exhibit to their creditors the state of their affairs, put- ting them off on various pretences ; that since their suspension they had refused to pay their creditors in whole or in part, but had been engaged in selling off their goods for cash, and ap- 490 HIGH COURT OF CHANCERY. propriating the proceeds to their own uses, and in this manner wasting and dissipating their resources ; that they had sent be- yond the reach of their creditors large quantities of goods ; that they had stated that they had made no transfer of their stock of goods to any one, nor created any lien upon the same, whereas in fact they had made two several bills of sale of their whole stock of goods, the one to Sampson Cariss and the other to their mother, Catharine S. Diffenderfer, to secure them in large sums of money, alleged to have been loaned by them ; and that these liens were created whilst they were insolvent, and had no expectation of extricating, themselves from their difficulties ex- cept by taking the benefit of the insolvent laws. That at the time of calling together their creditors, the defendants (as complainants were informed) admitted their insolvency ; and that Catharine S. Diffenderfer, at the period of the execution of the bill of sale to her and for a long time previous, was in no condition, from her own want of means, to lend money. That defendants had been warranted for sums of money less than a hundred dollars, and although admitting the justice of the claims, they had interposed injurious and improper obstacles to a recovery thereof, so that with the utmost diligence, judg- ments could not be recovered against them before the month of May, 1850, by which time their assets would be wholly wasted. That since the execution of said bills of sale, the defend- ants had held the property conveyed by them, or a large por- tion thereof, and were selling the goods without accounting with the grantees or to any of the creditors, for the proceeds of sale. The bill concluded with a prayer for the appointment of a receiver, and for an injunction to restrain the defendants from proceeding with the business of the firm. The Chancellor granted the injunction, but ordered the application for the re- ceiver to stand over for the corning in of the answers. The answer of the defendants, Diffenderfer, admitted that they began business as grocers in the city of Baltimore, in 1846, and had since continued to prosecute the same, but de- nied that they had ever falsely represented to the complainants THOMPSON VS. DIFFENDERFER. 491 the state of their affairs, or obtained credit from them or others thereby. They admitted their liability to the complainants, but denied that they had ever ceased to carry on their business, until restrained by the injunction, or had ever discontinued the payment of their just debts and liabilities, having, on the con- trary, applied their receipts to the payment of large sums to their most importunate creditors. They admitted having called a meeting of the creditors of the firm, their object having been to procure an extension of time from them, which they believed would have relieved them from their embarrassments, and stated, that at the request of some of the creditors present, they undertook to prepare an exhibit of the state of their af- fairs, but that some of the complainants to whom they showed the result, pronounced their statement false and fabricated ; whereupon they offered to have their books examined under the supervision of one of the clerks of the complainants, and had always been ready to do so ; that their books have ever been open to the inspection of their creditors, and that many of them, not parties to the bill, to whom they had been shown, expressed a willingness to continue their business relations with them. The defendants stated, that they were perfectly solvent, and had been so, ever since they began business, and never did admit the contrary to any one, nor did they ever state that they had created no liens upon their stock, but averred that some of the complainants, at least, had notice of said as- signments immediately after they were made, that said as- signments were not made in fraud of creditors, or with intent to take the benefit of the insolvent laws, but were made to se- cure the grantees on account of loans made by them to the de- fendants, and in compliance with promises made them by de- fendants, to secure them in that way whenever they should re- quest it ; and that it was only at the urgent request of the grantees that they had executed the bills of sale. They stated that they had been selling off their goods prior to the injunc- tion, but without any deviation from the usual course of busi- ness, and had applied their receipts to the payment of their debts, or the replenishing their stock in trade ; and that 492 HIGH COURT OF CHANCERY. they had been pursuing a course of rigid economy in their private expenses. That they had not at any time sent out of the city of Baltimore, any portion of their stock, with the in- tent to diminish the same or defraud their creditors. That their mother was not, nor had she been, in embarrassed circum- stances, unless produced by the assistance she rendered to them ; and that instead of her being supported by them, she had always refused to charge them any thing for their board, &c. They admitted that they had been warranted for various sums under one hundred dollars, and had procured the re- moval of said cases from the jurisdiction of the magistrate's courts, and had complied with such requirements as were ne- cessary to secure the advantages of such proceedings, but de- nied that they had admitted that the claims for which they were warranted were justly due, or that they intended to. in- terpose improper obstacles to their recovery. They stated that it was true, that if any of their creditors were to bring actions at law against them, they could not, by using the utmost dili- gence, obtain judgments thereon before the month of May, 1850, but that none of the complainants had brought such ac- tions, and that the assets of the firm were not being wasted in the mean time. They admitted the retention of possession of the property conveyed to Cariss and Mrs. Diffenderfer, with their permission, but denied that the proceeds of the sales made in the due course of their business were not paid over to the grantees or other creditors. They stated that their stock in trade consisted of perishable articles, and that great losses to them would be produced by a continuance of the injunction ; and that no injunction bond had been filed by the complainants. The answer of these defendants having been filed, an order was passed by the Chancellor, requiring the complainants to file an injunction bond, and so far modifying the injunction as to permit the defendants to sell their goods according to their usual course of business, and make such new purchases as were necessary, requiring them first to give bond to render an account of such sales and purchases. Testimony was afterwards taken by the complainants to sup- THOMPSON VS. DIFFENDERFER. 493 port the allegation of their bill, and the case having been heard on the application for a receiver, and the motion to dissolve the injunction, the Chancellor delivered the following opinion :] THE CHANCELLOR: This case is brought before the court upon the motion to dis- solve the injunction, in connection with which the application for the appointment of a receiver has been argued ; and it is quite manifest, and has not been controverted, that if the injunc- tion should be continued, it would be proper and necessary to put a receiver upon the property and if, on the contrary, it should be thought proper, under the circumstances, to refuse the application for a receiver, the injunction should be dissolved, as in that event its continuance would only embarrass and in- jure the defendants in the prosecution of their business without benefit to any one. The question to be considered, therefore, is, whether under the circumstances of this case, a receiver should or should not be appointed ? In the case of Williamson vs. Wilson, 1 Bland, 418, the late Chancellor laid down with precision, and, as I think, in entire conformity with the authorities, the principles which should govern the court upon applications similar to the present. It was there said, that "the court reluctantly interfered against the legal title only in the case of fraud clearly proved, and of immi- nent danger ; and a receiver will not be appointed when the matter depends upon the legal title, unless strong grounds are shown, and the rents and profits are in imminent danger." In Lloyd vs. Passingfiam, 16 Ves., 69,70, Lord Eldon said, "the court interposes by appointing a receiver against the legal title with reluctance, compelled by judicial necessity, the effect of fraud clearly proved, and imminent danger, if the intermediate possession should not be taken under the care of the court." In the case of The Orphans* Asylum vs. McCartee, 1 Hopkins, 435, it was said, "the fund must be shown to be in danger before a receiver will be appointed." "The court never ap- VOL. i 42 494 HIGH COURT OF CHANCERY. points a receiver merely because the measure can do no harm." "This principle reconciles the cases found in the books." The bill in this case alleges a variety of facts, which do show the fund to be in danger, and if proved to be true, or admitted, would be sufficient to overcome the reluctance of the court to interpose against the legal title, and take the possession of the property under its care, as a measure of safety. It alleges, that the defendants, the Diffenderfers, are insolvent, and wasting and misapplying the property from which the creditors could only expect to be paid ; and there would seem to be no doubt of the power, and the duty of the court to interpose in such a case, even against the opposition of the mortgagees, Cariss and Ca- tharine R. Diffenderfer ; for though in the case of a prior mort- gagee, having the legal title, the court will not, by the appoint- ment of a receiver, deprive him of his right of possession, it will not permit him to object to such appointment by any act short of a personal assertion of his legal right, and taking pos- session himself. Silan vs. The Bishop of Norwich, 3 Swans., 112115. And as the defendants, the mortgagees in this case, do not propose exerting their legal rights by taking possession ; but, on the contrary, express their willingness and consent that the mortgagors shall continue in possession of the property, and employ and dispose thereof in their business, it follows that the mere existence of the mortgages executed for their security, would not induce the court to forbear from appointing a receiv- er, if, independently of such mortgages, it would be proper to do so. The question, therefore, is, have the complainants made out by clear proofs, or admissions, such a case as, according to the established principles regulating this branch of the jurisdiction of this court, entitles them to its interposition in their behalf, by appointing a receiver ? It is conceded that the power is a delicate one, and to be ex- ercised with prudence and circumspection ; and there can be no doubt that in the case of a commercial firm actually engaged in trade, the power of the court, as invoked upon the present \ THOMPSON VS. DIFFENDERFER. 495 occasion, could only be vindicated by an unusual and pressing emergency, which would leave it no alternative. The absolute necessity of putting its hand at once upon the property, to save it from destruction or loss, must be clearly shown, or in the language of Lord Eldon, "fraud or imminent danger, if the in- termediate possession should not be taken by the court, must be clearly proved." In this case, as before observed, there can be no doubt that the facts charged in the bill do present an aspect of imminent danger, and contemplated, if not actual fraud, which would constitute the judicial necessity that would justify the court in putting forth its power to preserve the property, by the strong measure of taking possession of it ; though by so doing the business of the defendants, as merchants, would be broken up. But the facts charged in the bill are denied by the answer of the Diffenderfers, and though a strong effort has been made to break down the answer, by exhibiting supposed inconsistencies and contradictions in its several statements, and dwelling with emphasis upon the improbability of some of the facts averred in it, I cannot, after a careful examination, bring myself to the conclusion, that it is not entitled tp the weight usually allowed to answers in chancery. I do not find in it any statements which may not reasonably be reconciled with other statements contained in it ; and with regard to the argument founded upon the assumed improba- bility of its truth, it may be observed, that the defendants have spoken under the solemn responsibility of an oath, and with all the penalties, temporal and eternal, of perjury, full before them. Under the weight of these heavy sanctions, they have denied each and all of the allegations of the bill, upon the admission or proof of which, the right of the court to appoint a receiver depended. It has been urged, that with respect to some of the statements of the answer, though responsive to the bill, the defendant should be required to offer proof in their support ; because such proof was within their reach, whilst it was inaccessible to the complainants. But I apprehend, the rule that the answer, 496 HIGH COURT OF CHANCERY. when responsive to the averments of the bill, shall be taken as true, unless discredited by two witnesses, or one witness with pregnant circumstances, is not subject to the modification which the introduction of such a principle would involve. The rule rests upon a principle which protects it from the modification insisted upon, and that is, that the complainant, by addressing himself to the conscience of the defendant, makes him a wit- ness, and must take his answer as true, unless he can overcome it in the way suggested. Finding, then, that the allegations of the bill were denied by the answer, I looked carefully into the evidence taken under the order of the court, to see how far the complainants had been successful in proving their case ; and without here analyz- ing the evidence, or going into a detailed examination of it, I deem it sufficient to say, that I do not think it sufficient to over- come the denials of the answer. Several of the witnesses, it is admitted, are incompetent, and their depositions are excluded from the inquiry. My attention has been directed to the com- petent proof, and that, I think, is insufficient. The motion for a receiver must be refused, and the injunction dissolved. [No appeal was taken from this order.] LEVI L. TAYMON vs. . DECEMBER TERM, 1849. JOHN MITCHELL ET AL. [WARRANTY JURISDICTION.] THOUGH the seller of a chattel of which he has the possession, warrants the title, he is not bound to answer for the quality, unless he expressly warrants the goods to be sound and good, or unless he makes a fraudulent misrepre- sentation, or uses some fraudulent concealment concerning them, which amounts to a warranty in law. An assertion respecting an article, must be positive and unequivocal, and one on which the buyer places reliance, in order to amount to a warranty. And if the vendee has an opportunity of examining the article, the vendor is not TAYMON VS. MITCHELL. 497 liable for any latentjiefect, without fraud or an express warranty, or such a direct representation as is tantamount to it. Every mere false assertion of value, when no warranty is intended, will not / constitute a ground of relief to the purchaser. If the assertion is a mere | matter of opinion, in which parties mayjiiffer^.pr if the seller indulge in the J ^ommoiflanguage of puffing, it will not amount to a warranty. But, if a party undertakes to make a direct representation of a fact, even though he be mistaken as to the fact, if the other party is induced to act upon such representation, equity will relieve against the act, equally as if it had been a wilful and false assertion, for the injury is the same. Though the means of correct information be equally open to both parties, yet, if either of them does, or says any thing, Jendimjjo impose upon the other, an4Jie is^impjjsgd upon to his injury, the contract will not be allowed to stand. In the case of a breach of warranty, the vendee may sue upon it, without re- turning the goods, or rescind the contract by returning them, or the offer to return them in a reasonable time, so that the seller is placed in statu quo and sue for, and recover back, the purchase money, in an action for money had and received. What is a reasonable time, within which the purchaser must rescind the con- tract, by a return of, or an offer to return, the thing purchased, does not ap- pear to be stated in the books. The time, however, is to be computed from the period when the unsoundness is discovered, and not from the date of the contract. An offer to return negroes found to be unsound, made within a month after the sale, and as soon as their unsoundness was discovered, was held to be within a reasonable time. An offer to return the chattels within a reasonable time, is equivalent in its effect upon the remedy, to an offer accepted by the seller. In a case of misrepresentation of facts, whether made with a knowledge of their untruth , and wltFintent to defraud,or made inadvertently by mutual mis- take of parties, or by mistake of either of them, if the other has been preju- diced thereby, a court of equity has jurisdiction, and will set aside the con- tract and declare it a nullity. A court of equity has concurrent jurisdiction with courts of law, in all cases of fraud and damage, and it makes no difference, that the sale sought to be rescinded on the ground of fraud, was a sale of personal property. [The bill was filed in this case on the 3d of October, 1848, to vacate a sale of negroes made by the administrator of James Mitchell, deceased, to the complainant, on or about the 1st of May in that year. The bill charged the defendants with having made fraudulent misrepresentations of the value and condition of the negroes ; they having stated that they were appraised in the inventory at twelve hundred dollars, when they were in fact only appraised 42* 498 HIGH COURT OF CHANCERY. at seven hundred and fifty dollars ; and that they were of sound and healthful constitutions, when they were radically and per- manently diseased. The complainant stated, that the negroes had been of very little service to him, requiring frequent care and medical attendance, and that one of them, an infant, died before the bill was filed ; and that as soon as he ascertained their unhealthy condition, which was about a month after the sale, he applied, without success, to the defendants to take them back, and to return the securities given for the payment of the purchase money, consisting of certain single bills by him assigned to them. The bill prayed that the sale might be vacated as fraudulent, and the administrators restrained by injunction from assigning or collecting, and the makers from paying, the single bills given by the complainant for the purchase money ; which in- junction was granted by the Chancellor. The answer denied most' of the averments of the bill, and testimony was taken under a commission, the effect of which is stated by the Chancellor ; who, after hearing the arguments of counsel, delivered the following opinion:] THE CHANCELLOR : The case has been fully and very well discussed at the bar ; and the court has bestowed upon it all the reflection which its importance and the considerations connected with it require. That the negroes were diseased prior to, and at the time of the sale, and since ; and that the price paid for them greatly exceeded their value, has, I think, been incontestibly estab- lished by the proof. And it is also clearly shown, that the complainant purchased them under the erroneous impression that they were sound and healthy negroes ; the price being a full one for slaves of that description. And hence, in my judgment, it follows, that justice requires the recision of the contract of purchase, unless it appears that the complainant, by some act of commission or omission on his part, has forfeited his title to relief; or unless it can be shown, that blindly relying upon his own judgment, he made /i TAYMON VS. MITCHELL. 499 the purchase without respect to, or confiding in, the statements and representations made to him of their condition and value, prior to, and at the time of the purchase. The rule is, that though the seller of a chattel, of which he "^ has the possession, is ordinarily understood to warrant the ' title, he is not bound to answer for the quality, unless under special circumstances ; unless he expressly warrants the goods to be sound and good, or unless he makes a fraudulent repre- sentation, or uses some fraudulent concealments concerning them, which amounts to a warranty in law. 2 Kent's Com,, 478 - . It is not meant to be asserted, that- every mere false asser- tion of value, when no warranty is intended, will be a ground to relieve a purchaser. If the assertion is a mere matter of opinion, in which parties may differ or if the seller indulge in the common language of puffing, it will not amount to a war- ranty. For, as expressed in the common maxim, simplex com- mendatio non obligat. According to Mr. Chancellor Kent, "an assertion respecting an article must be positive and une-'> quivocal, and one on which the buyer places reliance, .in order to amount to a warranty. And if the vendee has an opportu- ( nity of examining the article, the vendor is not answerable for / any latent defect, without fraud, or an express warranty, or' : such a direct representation as is tantamount to it." 2 Kent's) Com., 485. But if a party undertakes to make a direct representation of a fact even though he be mistaken as to the fact if the other party is induced to act upon such representation, equity will relieve against the act equally as if it had been a wilful and false assertion for the injury is the same. McFerran vs. Taylor and Massie, 3 Cranch, 270. As remarked by Chief Justice Marshall, in delivering the opinion of the court in that case, "he who sells property on a description given by himself, is bound to make good that de- scription ; and if it be untrue in a material point, though the variance be occasioned by mistake, he must still remain liable for that variance.' 500 HIGH COURT OF CHANCERY. The Court of Appeals of this state in the case of Joyce and Vife vs. Taylor, 6 G. # J., 64, said "that if a party under- takes to make a statement of facts as true, without a know- ledge of their truth or falsehood, and they operate to the decep- tion of the other party, and thereby induce him to do what he would not otherwise do, it will be avoided. The gist of the inquiry being, not whether the party making the statement knew it to be false, but whether the statement made as true, was believed to be true ; and, therefore, if false, deceived the other party to whom it was made." These principles relieve the court in this case from the necessity, always an unpleasant one, of deciding whether the representations made to the complainant in regard to the ap- praisement of these slaves, and their condition of bodily health, were wilful and false assertions, or not. That such represen- tations were made, and that they were untrue in point of fact, is to my mind too clearly proved to be disputed successfully. And I am quite satisfied that reliance was placed by the pur- chaser upon these representations, and that they influenced his judgment in making the purchase. Whether known to the vendor to be untrue, or not, the mis- representation was of something material, constituting an in- ducement to the purchaser, and in which he placed confidence, and was misled to his injury. These afford, according to the authorities, good ground of relief. 1 Story's Equity, sections 193, 194, 195, 197. It has been urged, however, in this case, that, especially with reference to the appraisement of the negroes, the means of information were equally accessible to both parties, and that it was the folly of the purchaser not to look at the record and inform himself. But the rule, as laid down by Chancellor Kent, vol. 2, sec. 39, page 484, and to which the commendation of Mr. Justice Story gives additional weight, appears to be, that though the means of correct information be equally open to both parties, yet, if either of them does or says anything, tending to impose upon the other, and he is imposed upon to his injury, the con- tract will not be allowed to stand. TAYMON VS. MITCHELL. 501 Being of opinion, therefore, in this case, that the misrepre- sentation, whether known to be false or not, was of matter ma- terial to the contract, and upon which the purchaser relied, and by which he was misled to his injury, the sale must be rescind- ed, unless the purchaser since the sale has done, or forborne to do, some act essential to the assertion of his rights, or unless he is attempting to vindicate them in the wrong forum. The rule as laid down in the books is, that where goods are - discovered not to answer the order given for them, or to be un- sound, the purchaser ought in a reasonable time to return them to the vendor, or to give him notice to take them back, and thereby rescind the contract, or he will be presumed to acqui- esce in their quality. And in the case of a breach of warranty, he may sue upon it without returning the goods ; or rescind the contract by returning them, or the offer to return them in a reasonable time, so that the seller is placed in statu quo ; and sue for, and recover back the purchase money, in an action for money had and received. 2 Kent, 480 ; Franklin and Jlrmfield vs. Long, 7 G. J., 407. What is a reasonable time, within which the purchaser must rescind the contract, by a return of, or offer to return, the thing purchased, does not appear to be stated in the books. The time, however, is to be computed from the period when the un- soundness of the chattel is discovered, and not from the date of the contract. The bill in the case alleges, that so soon as the purchaser discovered the slaves to be unsound, that is, about one month after the sale, and before the death of the infant, he complained thereof to the vendor, John Mitchell, and required him to can- cel the sale and take back the negroes, and return the consider- ation which had been paid for them, which he refused to do. The proof upon this point is, that in or about one month after the sale ; that is, about the 1st of June, 1848, the complainant went to the defendant, John Mitchell, to get him to take the negroes back, which the defendant said he could not do the court would not allow him. Afterwards, on or about the 20th of September, 1848, the complainant again went to the same 502 HIGH COURT OF CHANCERY. party to get him to take them back. The first offer to return the negroes, was before the death of the infant, who died in July of the same year. There is, to be sure, some contradictory proof on this point, but the evidence of a witness affirming that he heard a state- ment made in a conversation between parties, cannot well be overthrown by proof that another witness was present, who did not hear the same thing. The witness who proved the fact in this case, stands altogether free from suspicion, and is unim- peached as to veracity ; and without intending to cast any dis- credit upon the witness who says he did not hear the remarks, and who I am well assured, did not hear them, I am satisfied that they wer made, and that such prior offer was made. The answer of the defendant, John Mitchell, also denies the prior offer to return the negroes, but I am persuaded Mr. Mitchell must have forgotten the fact at the time his answer was prepared. The presumptions in favor of the statement of the witness Gantt upon this point are so strong, that I considered it my duty to give credence to it ; and' hence, I assume, that about one month from the date of the purchase, the complainant did offer to return the negroes, and cancel the contract of sale ; and the question then is, whether this offer is sufficient to enable the court to vacate the sale, and restore the parties to their original condition. It cannot, I think, be maintained, that the offer to return the negroes within the month, was not within a reasonable time ; neither, I presume, can it well be contended, that the purchaser is under an obligation to institute his action immediately after the vendor refuses to take the property back and refund the money. An offer to return the chattels in a reasonable time on breach of warranty, is equivalent in its effect upon the remedy to an offer accepted by the seller, and, therefore, assuming in this case, that the offer was made in June, 1848, I am to treat the case as if the offer had been accepted, and the negroes ac- tually taken back by the vendor. If such had been done, there can be no doubt that the complainant would not have lost his remedy, by forbearing to resort to legal proceedings, until Oc- TATMON VS. MITCHELL. 503 tober of the same year, when this bill was filed. Thornton vs. Wynn, 12 Wheat., 183. At the time this offer was made, all the negroes were living, and if it had been accepted by the defendant, the parties would have been placed in statu quo. That the infant has since died, and that they cannot to that extent be placed in the same situa- tion,- is the defendant's own fault, of which, of course, he can- not complain. That the complainant repeated the offer in the presence of a witness in September, 1848, the rights of third parties not hav- ing intervened, and nothing more having been done by him than simply keeping possession of the property, cannot, I think, impair or take away his rights. And, therefore, if he had the right to come into this court for redress, that right remains now in full force and effect. It has been said, and the assertion has received the sanction of some of the most eminent judges known to any age, that fraud and damage coupled together will entitle the injured party to relief in any court of justice. And it was observed by Lord Eldon, in Evans vs. Bicknell, 6 Ves., 182, 183, "that if a rep- ^ resentation is made to another, going to deal in a matter of *\ interest upon the faith of that representation, the former shall make the representation good, if he knew that representation to be false ; and that if there was a jurisdiction at law upon the doctrine, there was a concurrent jurisdiction in equity." The observation here is, if the party making the representation "knew it to be false," but upon the principle of the decision in Joyce and wife vs. Taylor^ before referred to, the party will be equal- ly bound by his representation, whether he knew it to be false or not, provided the other party believed in its truth, and, if it is false, is deceived by it. For, as Mr. Justice Story says, "the affirmation of what one does not know or believe to be true, is equally in morals and law as unjustifiable, as the affirmation of what one knows to be positively false." 1 Story's Eq., sec., 193. Now, it may very well be, that the defendant, John Mitchell, did not know what was the condition of those negroes with reference to their health. Indeed, one of his own witnesses 504 HIGH COURT OF CHANCERY. says, that when interrogated by the complainant upon that sub- ject, he said "he knew very little about them," and referring him to another party for information, said, "he" (the complain- ant) "must examine for himself." The same statement is repeated in the answer, in which the defendant says, he expressly told the complainant "he knew very little of them, and that he had rarely seen them." .The answer contains a positive denial that the defendant gave any assurances or made any statements touching the soundness or health of the negroes and yet there is in it an unequivocal as- sertion, that "the negroes were sound and healthful at the time of the sale, and were worth the sum of thirteen hundred dol- lars." It is not easy to reconcile this positive declaration of the health and value of the negroes, in the answer, with the state- ment that he knew very little of them and had rarely seen them ; but it leads one strongly to believe that the defendant did in- cautiously venture to make statements at the time of the sale, respecting their soundness, without having the requisite infor- mation upon the subject ; and when to this presumption, fairly, as I think, arising upon what he says in his answer, is added the proof offered upon this point by the complainant, it seems to me that no reasonable doubt can be entertained in regard to it. Here, then, is a case in which the complainant has been in- duced to purchase a family of incurably diseased slaves, upon representations made to him by the vendor, that they were sound and healthy ; and for a price fully equal to their value if the representation had been true. That he confided in, and was misled by these representations to a certain extent, I have no doubt; and whether they were made with knowledge of their untruth, and with intent to defraud, or whether the vendor, without proper consideration, ventured to make them, without knowing whether they were or were not true, is immaterial. The title of the purchaser to relief in this court, upon either alternative, is equally perfect, as is abundantly established by the authorities which have been referred to, and by many others TAYMON VS. MITCHELL. 505 which could readily be found. Daniel vs. Mitchell, 1 Story, C. C., 172 ; Ainsley vs. Medlycot, 9 Fes., 21, note a. The principle appears to be, that in a case of misrepresen- tation of facts, though inadvertently made, by mutual mistake of parties, or by mistake of either one of them, if the other has been prejudiced thereby, a court of equity will set it aside and declare it a nullity. The jurisdiction of the court is supposed to be clearly estab- lished by the cases of Evans vs. Bicknell, 6 Vesey, 174 ; Bur- rowes vs. Lock, 10 Vesey, 470; Bacon vs. Bronson, 7 Johns. Ch. Rep., 201. It has been urged that this case is not unlike the case of Al- bert and wife vs. The Savings Bank of Baltimore, recently de- cided by this court, and referred to in the argument. It seems to me, however, to be totally dissimilar. That was a case in which the bank, contrary to the pro- visions of its charter, had loaned a sum of money to one of its directors. The contract, though forbidden by its charter, was fairly and bona fide entered into, without the slightest taint of fraud or misrepresentation affecting its morality. The money loaned by the bank to the director, had been enjoyed by him, and not being paid at the time stipulated, the bank sold the se- curities held by it in pledge, and reimbursed itself. There could be no pretence, it seemed to me, ex eequo et bono, to compel the bank to pay back this money, either to the party who borrowed it or to any one else. Though the bank could not have recovered the money from the borrower, because of the legal inhibition to make the loan, yet still in foro conscien- tice, it was due, and being paid, no court of justice would lend its aid to compel its return. It would be repugnant to the plainest principles of justice. But in this case, though the contract has been performed by the delivery of the property and payment of the consideration, yet, as its performance was the result of imposition, whether designed or not, practiced upon the purchaser, is immaterial the court will rescind it, and place the parties in their original situation. In all the cases in which the contract has been re- VOL. i 43 506 HIGH COURT OF CHANCERY. scinded, either by the act of the party or the decree of the court, the property had been delivered and the consideration paid. Otherwise the court in a great majority of cases, would be powerless to afford relief when the object of the fraud had been accomplished. It has been supposed, that this being a sale of personal es- tate, the remedy should have been sought in a court of law. But the cases which have been cited, show that, at least, this court has concurrent jurisdiction in all cases of fraud and damage, And in the case of Durell vs. Haley, 1 Paige, 492, the Court of Chancery did order the restoration of goods to the complainant upon the ground of fraud. In the case now under consideration, the remedy at law upon a recision of the contract, and an action to recover back the purchase money, would not be free from difficulty and embar- rassment. The appropriate action, when the contract is re- scinded by the purchaser, by returning or offering to return the article purchased in a reasonable time, is for money had and received, but, as in the present case, the negroes were not paid for in money, and as it does not now appear whether the money has been received on the securities assigned, it may, at least, be doubted whether a count for money had and received, could be maintained. But I am of opinion that this court has jurisdiction ; and, upon the grounds already stated, shall pass a decree cancelling the contract of sale, directing a restoration of the slaves to the vendors, and a return to the complainant of the consideration paid for them, and for costs against the defendants. Something was said about a provision in the decree for an account of the hires and profits of the negroes, and other mat- ters connected with, and affecting the equities of the parties. But the pleadings do not make a case which will authorize such a decree. All that I can do upon this bill, is to rescind the contract in j and put the parties, as far as practicable, in statu quo. [An appeal has been taken from this decree, and is still de- pending.] ATKINSON VS. PHILLIPS. 5Q7 JOSHUA J. ATKINSON, T PERMANENT TRUSTEE OF WILLIAM C. SPINDLER f DECEMBER TERM. 1849. vs. JAMES PHILLIPS, SEN'R. ET AL. [CONVEYANCE VOID AS TO CREDITORS RIGHT OF PERMANENT TRUSTEE TO FILE A BILL TO VACATE SUCH.] A VOLUNTARY conveyance made by a person not indebted at the time, in favor of his wife and children, cannot be impeached by subsequent creditors, upon the mere ground of its being voluntary. The mere fact, that the grantor was indebted at the time, does not, perse, con- stitute a substantive ground to avoid a voluntary conveyance for fraud, even in regard to prior creditors. The question of fraud is to be ascertained from all the circumstances of the case, and not alone from the mere fact of indebtment at the time. If the grantor be not indebted to such a degree, as that the settlement will de- prive the creditors of an ample fund for the payment of their debts, the con- sideration of natural love and affection will support the deed, although a voluntary one, against creditors, because it is free from the imputation of fraud. But the existence of such means to pay creditors, must be shown by the parties claiming under the deed, and the burden of proof is clearly upon them, to repel the fraud, presumable from the condition of the grantor, at the time the conveyance was made. A voluntary conveyance in favor of the wife of the grantor, was set aside in this case in favor of creditors, upon proof that he was largely indebted at the period of its execution, and no attempt being made to prove that he had means for the payment of his debts. A conveyance, purporting to be made for a monied consideration of 3500, was also set aside, upon clear proof, that the grantor at the time, was irretrievably insolvent, and knew himself to be so, and that it was made with the meditated design to injure and defraud his creditors. A deed, fraudulent and void as to creditors, is, nevertheless, good inter paries. The permanent trustee of an insolvent debtor, has the right to file a bill to set aside conveyances made by his insolvent, as fraudulent at common law, or under the statute of Elizabeth, against creditors. Unless the trustee had this power, the creditors prejudiced by the conveyance, might be without remedy. [The object of the bill in this case, which was filed on the 5th of March, 1846, was to vacate two conveyances made by William C. Spindler to James Phillips, senr., upon the ground that they were executed to delay, hinder and defraud the credi- 508 HIGH COURT OF CHANCERY. tors of the said Spindler. The first of these deeds is dated on the 27th of March, 1834, by which, for the nominal considera- tion of ten dollars, Spindler conveyed to Phillips, his father-in- law, a large and valuable real estate, situate in the city and county of Baltimore, to be held in trust for the separate use of the wife of said Spindler, (the daughter of Phillips,) during her life, and upon certain other trusts expressed in said deed. The other conveyance bears date on the 18th of April of the same year ; whereby, as alleged by the bill, for the pretended consideration of thirty-five hundred dollars, Spindler absolutely and unconditionally conveyed to the aforesaid Phillips all his household and kitchen furniture. Jt is alleged by the bill, that the consideration expressed in this instrument was not in fact paid, and that both conveyances were executed for the purpose of defrauding the creditors of the grantor, who was at the time largely indebted to various individuals and corporations. The bill further alleges, that on the 13th of January, 1835, Spindler, being indebted as aforesaid, and being the owner by assignment of a judgment recovered in Baltimore County Court against Jonathan Manro, with a like fraudulent intent, assigned such judgment to the use of Hugh Birckhead, who had large dealings with Phillips, and that the money, when received on said judgment by Birckhead, was by him passed to the credit of said Phillips ; and then prays that this money also may be accounted for by Phillips. The answer of Spindler and wife to this bill, denies the fraud charged, and insists upon the fair intent and purpose of this deed, and that the consideration expressed in each of them was true and bona fide. It does not deny the fact of Spindler's large indebtedness at the time the conveyances were executed, but avers that he was then engaged in a large and prosperous busi- ness, was possessed of property of more than four times the amount of his debts, and that the deed was executed with the view of securing a provision for his family, in the event of ad- versity in business, and at a time when such a provision was not only justifiable, but laudable and prudent. This answer also denies, altogether, the assignment of the judgment to Birck- ATKINSON VS. PHILLIPS. 509 head, as charged in the bill. The answer of Phillips very near- ly corresponds with this, and need not be more particularly ad- verted to. On the 17th of December, 1834, Phillips, through his agent, he being absent, purchased the county property of said Spind- ler, sold by the sheriff under executions upon judgments recov- ered against Spindler, in the year 1834, by the General Insur- ance Company, for the sum of two hundred and fifty dollars, although the same was appraised at nine thousand two hundred dollars ; and he, also, under the same circumstances, on the 22d of January, 1835, purchased the town property aforesaid, appraised at four thousand dollars, for the sum of three thousand eight hundred dollars, and obtained deeds therefor from the sheriff. [The Chancellor, after stating the case, says :] THE CHANCELLOR : These deeds, it will be observed, are not impeached upon the ground of their being fraudulent under the provisions of the insolvent system, as having been executed by Spindler with a view of being and becoming an insolvent debtor. They are charged as having been made to delay, hinder and defraud cred- itors, and as, therefore, being fraudulent and void, both at com- mon law and under the provisions of the statute of 13th Eliza- beth, chap. 5 ; and, whether they are so or not, is the only question that has been discussed by the counsel in their oral and written arguments. The principle extracted by Mr. Chancellor Kent from a re- view of the cases is, "that if the party is indebted at the time of the voluntary settlement, it is presumed to be fraudulent in respect to such debts ; and no circumstance will permit those debts to be affected by the settlement, or repel the legal pre- sumption of fraud" that "the presumption of law in this case does not depend upon the amount of the debts, or the extent of the property in settlement, or the circumstances of the par- ty" "that there is no such line of distinction set up or traced in any of the cases ; and that, therefore, the law has wisely dis- 43* 510 HIGH COURT OF CHANCERY. abled the debtor from making any voluntary settlement of his estate to stand in the way of his existing debts." This principle so affirmed by Chancellor Kent in Reade vs. Livingston, 3 Johns. Ch. Rep., 500, 501, as the clear and uni- form doctrine taught by the cases, is considered by Mr. Justice Story as strictissimi juris, and pushing the rule to an unreason- able extent, unless indeed the conveyance is intentionally made to defraud creditors, when it would be void on account of ill faith. But if the conveyance is founded upon a good consider- ation, and is, moreover, bona fide ; then, though the grantor may be indebted at the time, yet if the circumstances attending the transaction are such as to repel the presumption of fraud, it .seems, from the reasoning and cases cited by the writer, that the mere circumstance of the party not being entirely exempt from debt at the time would not be sufficient to overthrow the conveyance. The doctrine established by the Supreme Court of the United States, is, that a voluntary conveyance made by a person not indebted at the time, in favor of his wife and children, cannot be impeached by subsequent creditors upon the mere ground of its being voluntary. It must be shown to have been fraudu- lent, or made with a view to future debts ; and the mere fact of being indebted at the time does not, per se, constitute a sub- stantive ground to avoid a voluntary conveyance for fraud, even in regard to prior creditors. The question whether fraudulent or not, is to be ascertained from all the circumstances of the case, and not alone from the mere fact of indebtment at the time. "If," say the Supreme Court in Hinders Lessee vs. Longworth, 11 Wheat., 1991, "it could fbe shown that the grantor was in prosperous circumstances, and unembarrassed, and that the gift to the child was a reasonable provision, accord- ing to his state and condition in life, and leaving enough for the payment of the debts of the grantor, the mere fact of his being indebted would not make the deed fraudulent." The want of a valuable consideration may be a badge of fraud, but it is only presumptive, and not conclusive, evidence of it, and may be rebutted by evidence on the other side." And this ATKINSON VS. PHILLIPS. 511 doctrine, as Mr. Justice Story says, was asserted in a case where the conveyance was sought to be set aside by persons claiming under judgment creditors upon antecedent debts. 1 Story's Eq., sec. 362. If the high authority of the Supreme Court required any sup- port, it would be found in the cases cited by the writer, (in note 21 to this section,) and particularly in the case of Ver- planck vs. Story, 12 Johns. Rep., 536, in which Mr. Justice Spencer, in delivering the opinion of the court, said, "if the person making a settlement is insolvent or in doubtful circum- stances, the settlement comes within the statute of 13th Eliza- beth, ch. 5. But if the grantor be not indebted to such a de- gree as that the settlement will depfive the creditors of an ample fund for the payment of their debts, the consideration of natural love and affection will support the deed, although a voluntary one, against creditors, for, in the language of the decisions, 'it is free from the imputation of fraud.' ' These decisions, thus modifying and mitigating the rule upon this subject, as laid down by Chancellor Kent, in the case re- ferred to, are quite in accordance with the doctrine held by the Court of Appeals of this state, in Jones vs. Sluby, 5 H. fy /., 372, and appear to me to be so perfectly reasonable and judici- ous, that I should be disposed to adopt and follow them, even if opposed by authorities equally imposing. That the grantor, Spindler, was largely indebted at the period of the execution of the deed of the 27th March, 1834, is not denied by his answer, and is, moreover, abundantly established by the evidence. If not actually, at that time, insolvent, he was unquestionably in precarious circumstances, and although he alleges that he retained ample means to pay his debts, no attempt has been made to prove the existence of such means, and the burden of proof to repel the fraud presumable from the condition of the grantor at the time, is clearly upon the parties claiming under the deed. Birely vs. Staley, 5 G. fy /., 432. My opinion, therefore, is, that this deed of the 27th of March, 1834, is void as to creditors under the statute of Elizabeth, being purely voluntary, having been made by a party shown to have 512 HIGH COURT OF CHANCERY. been largely indebted at the time, and the parties claiming under it having failed to show other property owned by the grantor, sufficient to pay his debts ; and, being moreover convinced, from the evidence and circumstances of the case, that the grantor had not, independent of the property so conveyed, suf- ficient to pay the demands of his creditors. I do not, however, mean to be understood as. deciding, that creditors, impeaching a voluntary conveyance made by their debtor, are bound to show, affirmatively, that the debtor has by the conveyance strip- ped himself of the means of paying his debts ; because, I think, the parties claiming under the deed, are required to show that the grantor did not so disable himself, and that a sufficient fund remained to satisfy the claims of his creditors ; and that, there- fore, the facts of this case are even stronger than would be re- quired to bring it within the less stringent principle laid down by the Supreme Court, and established by the other cases re- ferred to. The next inquiry has reference to the bill of sale of the 18th of April, 1834, and which purports to be made for a raonied consideration of $3500. The original answer of the grantee, Phillips, to the averments and interrogatories of the bill in reference to the execution of this bill of sale, and the time and manner of paying the consid- eration expressed in it, and also in other respects, being evasive and unsatisfactory, the complainant excepted thereto, and after argument, the exceptions were sustained, and the de- fendant, by an order passed on the 29th of October, 1846, was required to put in a full and sufficient answer, by a day limited for that purpose. And it appears by the answer filed in obedience to this order, that he was absent from the United States, on a voyage to Brazil and Buenos Ayres, from a day prior to the 27th of March, 1834, to the 15th of January, 1835, so that he was not and could not have been present, when either the deed of trust or bill of sale was executed. The answer, in responding to the inquiry respecting the time and manner of paying the consideration expressed in the bill of sale, says, "it was duly ATKINSON VS. PHILLIPS. 513 and fully paid by the respondent to said Spindler, by advances from time to time made, and by a claim for board from said Spindler and his family, furnished by this respondent" "that said advances and board were supplied to said Spindler by this respondent, personally, prior to the execution of said bill of sale," &c. This bill of sale s then, which conveyed to the grantee all the household and kitchen furniture of Spindler of every kind and description, without reservation or exception, was executed in the absence of Phillips, the grantee, without the slightest solici- tation on his part, and, as confessed in the answer of Phillips, to secure in part a claim due him, from Spindler, for the board of himself and family. It professes upon its face to have been executed for a monied consideration of three thousand five hundred dollars ; and there is, moreover, a receipt at the foot of the instrument for that sum. That the sum of $3500 was not paid in cash, stands confessed by the answer, and we have no means of knowing what proportion was so paid ; the answer being silent upon the subject. Now, it is certainly worthy of remark, and calculated to arouse suspicion, that a man who swears that he was at that very time engaged in a large and prosperous business, and worth, and possessed of property, independent of that contained in these instruments, exceeding in value more than four times the amount of his debts, should, without solicitation, and in payment of a claim against him, partly for the board of himself and family, convey atvay, absolutely and unconditionally, all his household and kitchen furniture ; and this ground of suspicion is certainly not weakened by the fact that the grantee in this conveyance is his father-in-law, who, so far from insisting upon such conveyance for his security, was absent from the country at the time. That Spindler was hopelessly insolvent at the date of this conveyance, and when the deed of the preceding month of March was executed, I am thoroughly convinced from the evi- dence. It would be a consumption of time to go into a minute analysis of the proof upon this point, and I deem it sufficient to say, that upon a very careful examination of it, I do not see 514 HIGH COURT OF CHANCERY. any grounds upon which a reasonable doubt can be entertained. I am not only entirely satisfied that he was irretrievably insolv- ent, but that he knew himself to be so, and that these convey- ances were made for the purpose of placing his property beyond the reach of his creditors ; and that it is the duty of this court to frustrate the design, unless there stands in the way some insuperable principle of law. The property contained in the deed of trust of the 27th of March, 1834, and the bill of sale of the 18th of April, of the same year, seems to have been every thing of a visible and tangible nature which Spindler possessed, and when, in addi- tion to these transfers, he, in January, 1835, assigned, for Phil- lips' benefit, the judgment against Manro, he stripped himself of almost every thing he possessed in the world which could be made available to his creditors. And what makes the assign- ment of the judgment still more reprehensible, it appears not only to have been made without consideration, but the fact that any such assignment was made, is denied by the answer of Spindler. The record, however, and the proof of Mr. Birckhead fully disprove the answer in this respect, and establishes not only the fact of the assignment, but that the money received upon the judgment inured for the benefit of Phillips. And taking all these transactions and grouping them to- gether the proximity of the conveyances to each other in point of time the total absence, or even pretence, of any valuable consideration for the deed of March, 1834, by which a large amount of property was settled upon the wife and child of Spindler, the suspicious circumstances which surround the bill of sale of April, 1834, and the denied but proved transfer of the judgment of 1835, and I think I may say, in the language of Judge Story, in Bean vs. Smith et a/., 2 Mason's Reports, 294, that "the badges of fraud cluster about them in every direction," and that these conveyances and transfers were made with the meditated design to injure and defraud creditors. It appears to me impossible to read this record, and not come to the conclusion that Spindler saw and was fully sensi- ble of the desperate condition of his affairs, and that it was his ATKINSON VS. PHILLIPS. 515 purpose to benefit his family at the expense of his creditors. The deeds, then, in my judgment, were made to delay, hinder and defraud them, and must be vacated and the property sold for their benefit, unless the remaining ground of defence is a good one, and that rests upon the effect of the sale by the sheriff to Phillips, under executions upon judgments against/ Spindler , recovered by the General Insurance Company, in the year 1834. It is supposed, by the counsel for the defendants, that this purchase by Phillips, at the sale made by the sheriff, gives him every thing necessary to perfect his title, whatever may have been the infirmities of the original deed, unless it can be shown that the sale was collusive and fraudulent, which is denied in the answer, and contested in the argument. I do not deem it necessary to investigate the question of fraud, as charged on the one side, and disputed on the other, because I think it very clear, that even assuming the fairness of this part of the transaction on the part of Phillips and Spind- ler, the fate of the case must depend upon the original integrity of the deed of March, 1834, and that the title of Phillips to hold the property conveyed thereby, against the creditors of Spindler, can draw to it no aid from the sheriff's sale. The deed of March, 1834, though in my opinion, fraudulent and void as to creditors, was clearly good inter partes, and of course, Spindler was thereby divested of any interest in the property conveyed, other than the merely contingent life estate reserved to him by the instrument itself, and when Phillips pur- chased at the sale made by the sheriff, upon an execution is- sued upon a judgment against Spindler, he acquired and could acquire nothing more than that contingent right, and the con- tingency not having happened, upon which the title of Spind- ler to the beneficial interest in the property for life, was to arise, it would seem to follow necessarily, that this purchase is wholly ineffectual to clothe the purchaser with any rights which can be asserted against the creditors. These views dispose of the grounds of defence taken in the answers, and urged in the argument, and, in my judgment show them to be untenable. 516 HIGH COURT OP CHANCERY. A difficulty, however, occurred to me at one time, respecting the right of the complainant, who is the permanent trustee in insolvency of Spindler, the grantor, to file a bill to vacate con- veyances made by him as fraudulent, under the provisions of the statue of Elizabeth I thought it might perhaps be doubted, whether, as the conveyances were good against the grantor himself, his insolvent trustee could be permitted to impeach them. Subsequent reflection, however, and an examination of one or two of the cases, has satisfied me that the doubt is not well founded ; and that unless the trustee may maintain such a suit, the creditors of the insolvent, who are prejudiced by the con- veyance, might be without remedy altogether. According to the principles settled by the Court of Appeals in Alexander vs. Ghiselin et a/., 5 Gill, 138, the whole estate pf the insolvent, whatever may be its condition, passes into the hands of the trustee, to be by him managed for the benefit of his creditors, who are deprived by operation of the insolvent system, of the right to pursue in their own names, any remedy against the property of the debtor, however it may be situated at the time of his application for relief. It is true, that if there be a surplus after the payment of the claims of creditors, it will be enjoyed by the insolvent, and so far, and to that extent, the annulling the conveyances operates to his benefit, but still as the property or its proceeds must be in the first place applied to the payment of the creditors, the power of the court must be regarded as exerted chiefly for them ; and if the conveyance is void as against creditors, under the stat- ute of Elizabeth, it would seem proper to permit the trustee to institute proceedings for the purpose of vacating it, as other- wise the creditors, though wronged, would be without remedy. In Virginia, the sheriff, when a debtor takes the insolvent oath, and delivers in a schedule, is vested by the act of assem- bly with all the insolvent's estate, rights and interests ; and as the Court of Appeals of that state said, in the case of Shirley vs. Long, 6 Randolph, 748, "he represents both the insolvent and the creditors," "and it would be strange, that if the insolv- ent were to convey away half his property, and this most BALTZELL VS. TRUMP. 517 manifestly fraudulent, this curator and trustee could do nothing, bring no suits, take no steps to recover this, and bring it into a division among the creditors. The right of the trustee to file such a bill as the present, is maintained by the case of Riggs vs. Murray, 2 Johns. Ch. Rep., 565, and is believed to have been decided by the Court of Appeals of this State, in the case of Gatchell, permanent trustee vs. Uhler and Bruner, not reported, and in Wlnn and Ross vs. Albert and Wife. I am of opinion, therefore, that the present bill may be main- tained ; and considering, for the reasons which have been sta- ted, that the deed and bill of sale are void, as against credi- tors, a decree will be passed to that effect, when the property will be vested in the complainant as permanent trustee of Spind- ler, to be by him administered in insolvency. The complainant having waived the residue of his prayer for relief, no opinion is expressed in relation thereto. [An appeal was taken from this decree, which is still de- pending.] PHILIP BALTZELL, SURVIVING PARTNER OF THOMAS BALTZELL vs. ANN TRUMP, EXECUTRIX OF WILLIAM B. TRUMP. MARCH TERM, 1850. [CONSTRUCTION OF PARTNERSHIP AGREEMENT.] BY one of the articles of a partnership agreement, a partner bound himself, "not to take out of the business, or stock in trade," of the partnership, "more than seven hundred dollars per annum, in goods or money, or both." HELD That this article could not be construed as an agreement, that this partner should have a salary of seven hundred dollars, in consideration of his giving his attention to the business of the firm. That by this article he was restricted from taking more than seven hundred dollars, but he might take less, and if he should take less, he would not be entitled to have the difference made up, upon the expiration of the partner- ship. VOL 1 11 518 HIGH COURT OF CHANCERY. [By articles of agreement, executed on the seventh day of February, eighteen hundred and thirty-five, Philip and Thomas Baltzell, and William B. Trump, entered into copartnership, under the name and firm of William B. Trump & Co., to com- mence on the ninth of the same month and continue for the term of three years. The third article provided, that all expenses relating to the business of the firm should be taken out of the joint funds, of which a regular account was to be kept, and each item charged, as it accrued, in the expense account. The fourth article provided, that, after paying expenses, and deducting the capital of $14,000, one half of which was to be contributed by Trump, and the 1 other by the Baltzells, the resi- due, if any, was to be equally divided, that is, Trump was to recieve one half and the Baltzells the other. The fifth article is in the following words : " The said Wil- liam B. Trump binds himself not to take out of the business or stock in trade of the said firm of William B. Trump & Co., more than seven hundred dollars per annum, in goods, or money, or both." The amounts withdrawn at different times, and making the aggregate sum of $2100, were never entered on the expense account until the 1st February, 1838. On that day, shortly before the dissolution of the copartnership, of which dissolution the articles relevant to this case are recited by the Chancellor, in his opinion, an entry was made by the direction of Trump, by which he was credited, and the expense account charged with this whole sum. The bill in this case, which was to re- cover the said sum of $2100, was filed by Philip and Thomas Baltzell on the equity side of Baltimore County Court, on the 24th of June, 1841. Upon the death of the complainant, Thomas Baltzell, and of the defendant, William B. Trump, a bill of revivor was filed by the surviving partner against the executrix of the deceased defendant, and the case was subse- quently removed to the Court of Chancery. [The Chancellor, in his opinion, says :] BALTZELL VS. TRUMP. 519 THE CHANCELLOR: Although the answer in this case, which was filed by Wil- liam B. Trump, in his lifetime, resists the complainant's title to the relief prayed by the bill, upon the ground that he, Trump, was to be allowed the sum of seven hundred dollars per annum for his services, out of the joint effects of the firm, as a part of the expense of conducting its business, I do not understand it to be strongly insisted that the articles of copart- nership bear that interpretation ; and it appears to me to be totally unwarranted by any one of the stipulations of that agreement, or of the whole taken together. As there was to be no division of the profits during the con- tinuance of the partnership, and as it may be fairly presumed from the proceedings that Trump would have been without means to defray his own personal expenses, unless some stipu- lation had been introduced to authorize him to take something out of the firm, the fifth article was inserted. The theory of the answer is, that this article entitled Trump to take from the firm the sum of seven hundred dollars per an- num, as a part of the expense of carrying on its operations that it was the agreement of the parties, that in addition to his share of the profits, he should have a salary of seven hundred dollars, in consideration of his giving his undivided personal attention to the business of the firm. If such was really the contract of the parties, it cer- tainly seems strange that their meaning was not expressed in clearer terms ; and still more extraordinary, that, if a fixed compensation had been designed, the article should have declared he should not take more than the given sum. Can it be reasonably contended, that if Mr. Trump, during the three years, had withdrawn less than seven hundred dollars per an- num, he would have been entitled, upon the termination of the partnership, to have taken out a sum equal to the difference between the amount so withdrawn. by him and the annual com- pensation which he now claims ? The language of the con- tract is, that he shall not take more than seven hundred dollars, but surely he might take less; and there is nothing in any part 520 HIGH COURT OF CHANCERY. of the instrument which gives color to the idea, that if he should take less, the difference should be made up to him upon the expiration of the partnership. It may also be observed, that the view here taken of this contract entirely conforms with what seems to have been the construction put upon it by Mr. Trump, until the entry was made in the books on the 1st of February, 1838, but eight days before the agreement dissolving the partnership was executed. The agreement was, that every article properly chargeable to the expense account, should be charged as it accrued, and it is certainly fair to suppose, that if Mr. Trump had considered that the sums and goods taken out by him were to be placed to that account, he would have caused the proper entries to be made, from time to time, as was done with respect to the other expenses attending the prosecution of the business. I do not deem it necessary to refer particularly to the parol evidence, and will simply observe, that I am satisfied from it, that when the agreement dissolving the partnership was made, the Baltzell's did not know of the entry of the 1st of February, 1838, and, therefore, they are not to be presumed to have sanc- tioned it, either by acquiescence, or by positive approbation. I do not find in the stipulations of the agreement, by which this partnership was dissolved, anything which, by reasonable construction, can absolve the estate of Trump from the pay- ment of the sum claimed by this bill. In consideration of the sum of $15,550, stipulated to be paid by the Messrs. Baltzell to Trump, and which it is conceded has been paid, and that they should assume to pay all claims against the firm, and there is no pretence that they have not faithfully performed this stipulation ; Trump agreed, on his part, and did, by the terms of said agreement, "assign, transfer and deliver to them, all his right to and interest in all accounts, notes, bonds, mortgages, and judgments, or claims in any other form whatever, belonging to or due the firm of William B. Trump & Co., be the same more or less." There are other provisions transferring to the Baltzells the stock of goods on hand, and the cash, be the same more or less. BALTZELL VS. TRUMP. 521 And then there is a provision, that the Baltzells take the debts due the firm at their own risk that Trump should give them a bond with security, that he had contracted no other debts or liabilities against, or in the name of the firm, other than those enumerated in a schedule taken from the books, and also against any other liabilities created by him individu- ally ; and the Baltzells were, in like manner, to give bond to Trump for the performance of their engagement to pay the debts of the firm, and then follows this stipulation : "The above conditions being fulfilled, William B. Trump, Thomas Baltzell and Philip Baltzell, mutually renounce all claims against each other, any loss or gain, or any accounts or claim, assigned to either party, to be the loss or gain of said party, as the case may be." Whatever may be the true construction of the articles of co- partnership, this provision, it is contended, must protect the defendant from the claim now made upon him for the sum of two thousand one hundred dollars, for which he was indebted to the firm, and stood indebted upon its books, until the entry of the 1st of February, 1838, was made. We must assume, of course, that entry was an improper one, and that Mr. Trump actually owed the firm the sum of money in question, precisely as any other person would, who stood fairly charged upon its books with money and goods to that amount, and then the question is, whether, in the stipulation quoted, there is anything which will release him from such a claim. I cannot bring myself to think so the parties by the agree- ment dissolving the partnership, had entered into various re- ciprocal stipulations. Those on the part of Trump were, that he should transfer and assign to the Baltzells all claims due to,- and merchandise and cash, the property of the firm, and the latter agreed, on their part, to pay all claims against the firm, to incur the risk of the insolvency of those who might be debtors to it, and to pay to Trump a specific sum of money for his interest. Stipulations which they have faithfully per- formed. Trump's engagement was, that he would assign and 44* 522 HIGH COURT OF CHANCERY. transfer to the Baltzells all claims due to the firm, and all mer- chandise and cash on hand ; and upon his doing so, they agreed to renounce any claim against him which his failure to perform his contract would have given rise to. But the complaint they now make is, that he did not perform his contract that there existed upon the books of the firm an account against himself for a large sum of money, which, by the express terms of the contract dissolving the partnership, was to have been assigned to the Baltzells. But that instead of doing this, he, Trump, without their knowledge, and without any authority to be found in the articles of copartnership, extinguished this claim by an arbitrary entry in the books. Assuming this to be the case, (and it appears to me to be impossible to contend that the con- tract which gave rise to the partnership justified the entry,) and then it follows that Trump did not fulfill his engagement to assign over to the Baltzells all claims due to the firm ; and, therefore, there is no pretence for saying that he may shelter himself under the stipulation by which the parties reciprocally renounced demands against each other, since that renunciation was only to take effect upon the performance by each of all the terms of the contract on his part. If this account against Mr. Trump on the books of the firm was a claim due it, it passed to the Messrs. Baltzells by the express terms of the contract ; and an entry in the books made by the former, wholly unau- thorized by the articles of copartnership, cannot extinguish or impair their rights, nor can they be impaired by the contract of dissolution, of which that very entry was a violation on the part of Trump. My opinion, therefore, is, that the complainant is entitled to the relief sought by his bill ; and as the sum claimed is specific, and an agreement has been filed admitting assets, there can be no necessity for sending the case to the auditor for an account. The bill claims the sum of $2100, with interest from the date of the dissolution of the partnership, on the 9th of February, 1838, but I think I shall be doing justice by giving interest from the day the bill was filed, on the 24th of June, 1841, and shall so decree. BROOKS VS. DENT. 523 CHAUNCY BROOKS ET AL. vs. HENRY H. DENT, ADMINISTRATOR D. B. N. OF HENRY BRAWNER ET AL. MARCH TERM, 1850. [SECRET TRUST RESULTING TRUST AS AGAINST CREDITORS STATUTE OF FRAUDS.] A HUSBAND and wife, for a bona Jide and valuable consideration, may contract for a transfer of property from him, to her. A settlement upon the wife after marriage, in pursuance of a valid agreement before marriage, is good and binding against the creditors of the husband. In marshalling assets, lands descended, are to be applied before lands devised. Evidence of declarations, made by a husband during coverture, is not admissible against creditors of the husband, to establish a secret parol agreement between him and the wife, in reference to property standing in the husband's name during his lifetime. But if the wife had performed her part of an agreement, made between her husband and herself, she would have an equity as against the husband and his heirs, to have it carried into effect on their side, though the agreement was'only by parol. The court does not favor secret trusts, and will not allow them to be set up to defeat the rights of creditors. If it could be proved, that the land was purchased with the wife's money, then as between her and the heirs at law, or volunteers claiming under her hus- band, a trust would result to her, being implied by law, from the intention of the parties, and the justice of the case, and which being expressly except- ed from the statute of frauds, may be proved by parol. But such resulting trust cannot be set up to the prejudice of the rights of sub- sequent creditors. The act of 1785, ch. 72, sec. 11, authorizes the court to direct a deed to be re- corded, but with a limitation, that it shall not effect the rights of creditors becoming such after the execution of the deed. Where a party holding a bond of conveyance is in possession, and has paid the purchase money for the land, the court will direct a conveyance, which will prevail against creditors whose judgments intervened between the equitable title by the bond and the legal title by the decree. Where two persons executed a joint note, the estate of the one, will, under the chancery rule, be charged with only half the amount, unless it is shown, that he is the principal debtor, or that the other is insolvent. The weight of American authority, is, that it is sufficient to bind a surety if his engagement to pay the debt of another is in writing, although the considera- tion may not be reduced to writing. But where both the consideration and the engagement are in writing, the surety is bound, even according to the strict English construction of the statute of frauds. 524 HIGH COURT OF CHANCERY. [This suit originated in the filing of a creditor's bill on the equity side of Charles County Court, on the 12th of Novem- ber, 1840, against Maria C. Brawner, executrix, and the heirs and devisees of Henry Brawner, deceased, and was subse- quently transferred to this court, under the Act of Assembly in relation to such cases depending in the county courts, consti- tuting the First Judicial District. Maria C. Brawner departed this life in the latter part of July, 1847, and on the 22d of February, 1848, a bill of revivor was filed against the defendant, Dent, as administrator d. b. n. of said Brawner. One of the claims of the suing creditors is founded upon a promissory note made by said Brawner and one Ignatius Stew- art, in favor of Brooks, Stephens & Co., dated the 22d of April, 1837, for the sum of $2112, and payable six months after date. The other is on an open account for articles of merchandise sold to said Stewart on the 15th of October, 1836, and amounting to the sum of $1901 30, with interest to the 18th of September, 1838, on the credit of a letter from said Brawner, undertaking the payment of the same; of which the original being lost, parol proof was offered. Henry Brawner departed this life sometime in the fall of 1838, having first made and duly published his last will and testament, by which he devised to bis wife, Maria C. Brawner, in fee, a tract of land called "Elleslie," and constituted her his sole executrix, which office she undertook, and returned an in- ventory of his personal estate, amounting to $7943. This tract was purchased by the testator, at a chancery sale, made in 1825 or 1826, by Daniel Jenifer, acting as trustee, for the sum of $5161 87, and was conveyed to him by the trustee, on the 22d of August, 1835, and it continued until his death, upon the land records of Charles county, as his absolute prop- erty and estate. Mrs. Brawner, the widow and devisee, in her answer, claims this tract of land as her own, or that she must be regarded as a preferred creditor thereof, by reason of an agreement between her and her husband, set up in her answer, that she would con- BROOKS VS. DENT. 525 sent to the sale of her maiden real estate upon the condition that the proceeds thereof should be invested in other real estate for her benefit. This tract called "Elleslie," the answer alleges, was purchased by her husband in conformity with said agree- ment, and should be now regarded as her estate, or subject to her claim, as a preferred creditor. The case shows that a parcel of land inherited by Mrs. Brawner, was sold and conveyed by her and her husband to the purchaser, in April, 1826, for the sum of $4500 ; and there is parol evidence in the record to show that Brawner, her husband, had been several times heard to say, that he had paid for "Elleslie in part with her money received from the sale of the land of his wife, and that it was intended for her in lieu of the land which had belonged to her, and which had been sold as aforesaid," and in a clause of his will there is a declaration to the same effect. The plea of limitations was also made to these claims, and the statute of frauds relied upon as a defence to the one upon open account. The Chancellor, after stating the facts, said :] THE CHANCELLOR : The case presents, and there have been discussed at the bar, one or two questions of considerable interest, and upon these the opinion of the court will be briefly expressed. The question first to be considered, is, how far this alleged agreement between husband and wife, supposing the proof of- fered to establish it to be sufficient for that purpose, and to pro- ceed from an exceptionable source, can be set up in prejudice of the claims of creditors who became such subsequently to its date ? It is not doubted that a husband and wife may contract for a bona fide and valuable consideration, for a transfer of property from him to her, as was said by the Chancellor in Livingston vs. Livingston, 2 Johns. Ch. Rep., 537 ; see also Atherly on Marriage Settlements, 160, 161. Nor can it be questioned, that a settlement upon the wife after marriage, in pursuance of 526 HIGH COURT OF CHANCERY. a valid agreement before marriage, may be good and binding as against the creditors of the husband. But this is not the case of a settlement either before or after marriage. Here there has been no settlement at all, and the question is, whether this particular parcel of land is so impressed with a trust for the benefit of Mrs. Brawner, as to protect it from the claims of the creditors of her husband. It is, to be sure, contended by the counsel of Mrs. Brawner, that she claims the legal title under the devise to her in the will. But, if she rests her defence upon that title, she must be regarded as a volunteer, and take subject to the claims of cred- itors ; though, in marshalling the assets, the estate devised to her, could not be reached until the descended lands, if any, are iirst disposed of. 4 Kent's Com., 421 ; Chase vs. Loc/cerman, 11 G. 4r /., 185. It is to be observed, that the only proof of the agreement is- to be found in the parol declaration of the husband, made dur- ing the coverture, and it needs but little consideration to show how dangerous it would be to allow such evidence to defeat the rights of creditors. The observations of Chancellor Kent upon this subject, in the case of Reade vs. Livingston, 3 Johns. Ch. Rep., 488, are full of instruction. The objection is not placed upon the ground that the agree- ment was by parol, because, though by parol, still, if carried into effect on the part of the wife, by selling her maiden estate, she would have an equity as against the husband or his heirs, to have it carried into effect on their side ; and the statute of frauds would interpose no obstacle. The objection is, that the proof of the agreement is derived exclusively from declarations made by the husband during the coverture ; the admissibility of which declarations, for such a purpose, in opposition to the rights of creditors, it seems to me, is very questionable. But, waiving that objection, and supposing the agreement set up in the answer was in proof by a witness who was pres- ent when it was made, I am still of opinion, that, as against the creditors of the husband, and particularly those who be- came such after the title to the land was vested in him, it can- not be allowed to stand. BROOKS VS. DENT. 527 The trust created by that agreement was a secret trust. It dates back to the year 1825 or 1826, and though Mr. Brawner lived until the fall of 1838, and the record title was in him from the month of August, 1825, no attempt was made during his life to assert any right or title founded upon the agreement. So far as the record in this case informs us, the first assertion of this right on the part of Mrs. Brawner, was made in her an- swer to this bill, filed in September, 1845. Now, it seems to me, it would be establishing a precedent of the most pernicious and perilous character, to allow these secret trusts to be set up to defeat the rights of creditors. If the alleged agreement had been performed by the husband, and the title of the wife placed upon the public records of the county, the case would have presented very different consider- ations. But here is a case, in which, as early as 1825 or 1826, the husband became the purchaser of the property in question, at a sale made under the authority of a Court of Chancery, and from the year 1835 until the answer of the wife was filed in this cause, in 1845, his title was spread upon the public land records of the county, and he was held out to the world as its undisputed owner. As I am fully persuaded the secret agreement put forward in the answer of Mrs. Brawner, cannot avail her, even if shown to exist by unexceptionable evidence, as against the creditors of her husband, or at all events against subsequent creditors, it remains to be seen whether she can successfully assert a ti- tle to the property upon any other ground. If it could be shown clearly, that the money with which this land was purchased, was supplied by the wife, a trust might result to her, being implied by law, from the intention of the parties, and the nature and justice of the case ; and such trust, being expressly excepted from the operation of the statute of frauds, may be proved by parol, not only against the face of the deed itself, but even in opposition to the answer of the trustee, and possibly after the death of the nominal purchaser. Boyd vs. McLean et al., Johns. Ch. Rep., 582 ; Dorsey vs. Clarke et al., 3 H. if /., 551 ; Maccubbin vs. Cromwell, 7 G. < /., 157 ; Bottsford vs. Burr, 2 Johns. Ch. Rep., 405. 528 HIGH COURT OF CHANCERY. If, then, this was a contest between Mr. Brawner and the heirs at law of, or persons claiming as volunteers under her husband, and it could be made out, by clear and satisfactory proofs, that the money with which "Elleslie" was paid for was advanced by Mrs. Brawner, there might, perhaps, be no difficulty in de- claring, that a trust resulted to her by operation of law. This, however, is not a case between her and volunteers under her husband. The rights of subsequent creditors are involved here, and the question is, whether, assuming the proof to be admis- sible and adequate, a trust of which they could have had no knowledge, and which results only by construction of law, and to subserve the purposes of justice, as between the party in whose name the conveyance is taken and him by whom the purchase money is paid, shall be set up to their prejudice. No case has been, or, it is believed can be, produced, to establish the affirmative of this proposition ; and it seems to me not only replete with danger and mischief, but to be in conflict with settled principles. Under the act of 1785, ch. 72, sec. 11, a deed, to the validi- ty of which recording is necessary by law, may be recorded by a decree of this court, with a limitation, however, that it shall not in any way affect the creditors of the party making such deed, who may trust such party after the date of the deed ; and, therefore, as to those creditors who trusted Mr. Brawner after the date of the alleged payment with the money of the wife, even if a deed had been executed by him declaring the trust, and that deed had been withheld from the records it could now only be recorded or enforced, with the savings of the rights of these creditors, as expressed in the proviso of the statute. Pan- nell & Smith vs. Farmers' Bank, 7 H. & /., 202. There can be no doubt, as was said by the Court of Appeals in Alexander et al. vs. Ghiselin et aL, 5 Gill, 181, that this court may direct a conveyance, where a party holding a bond of conveyance is in possession, and has paid the purchase money ; and that such conveyance will prevail against creditors whose judgments intervened between the equitable title by the bond and the legal title by the decree and deed. BROOKS VS. DENT. 529 But here there was no possession delivered, nor bond of con- veyance or other instrument of writing executed. On the con- trary, Mr. Brawner, the husband, retained the possession and use of the property to the day of his death, and was, according to all the manifestations of title known to the law, the absolute and unqualified owner of it. The title now set up as against his creditors, who trusted him upon the faith of this property; rests either upon a 'secret verbal agreement, or upon the legal doctrine adopted to advance the purposes of justice as between the party who actually pays the money and him to whom the conveyance is made, that a trust results in favor of the former, and will be enforced in equity as against the latter.* But, in a case like the present, and as against subsequent creditors, I am of opinion, no such trust can be raised, or results by legal implication ; and with respect to the verbal agreement relied upon in the answer, and already spoken of, it having ref- erence to land, and thus being unlike the case of Alexander vs. Ghiselin, would be void by the statute of frauds, as expressly stated by the court in that case. I, therefore, think no reason has been shown why the tract of land called "Elleslie" should not be liable to be sold to pay the creditors of the deceased Henry Brawner. This bill was filed on the 12th of November, 1840, and the promise by Mr. Brawner, as proved by Judge Grain, in July or August, 1838, is, in my opinion, a complete answer to the plea of limitations. With regard to the claim founded upon the promissory note signed by Stewart and the deceased, there being no evidence either that the latter was the principal debtor, or that Stewart is insolvent, I do not think that, according to the Chancery rule, the estate of the deceased can be charged with more than one-half that debt ; but, as stated during the argument, the question will be reserved, with liberty to the complainants to introduce proof to obviate the objection. The statute of frauds is relied upon as a defence against the claim founded upon the open account, and it is insisted that this is an attempt to charge the estate of the deceased with the VOL. i 45 530 HIGH COURT OF CHANCERY. debt, default or miscarriage of another, contrary to the provision of the fourth section of that statute ; which declares that a par- ty shall not be so charged, "unless the agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing, and signed by the party to be charg- ed therewith, or some other person thereunto by him properly authorized." The evidence of Judge Grain conclusively proves that an agreement was signed by the late Mr. Brawner, binding him to pay this debt, and that it is lost, and upon diligent search can- not be found. Secondary evidence of the contents of the agree- ment, which was in the form of a letter from the deceased to Brooks, Stephens & Co., is, therefore, admissible, and, it ap- pears to me, taken in connection with the other evidence, to furnish a full answer to the statute of frauds. It might not be very easy to determine whether the engage- ment of Mr. Brawner in this case is a collateral or original one ; and even though collateral, whether it might not be classed with those engagements, which being made at the time of the principal contract, was an essential ground of the credit given to the principal debtor, thus forming an original and entire transaction ; and resting upon the consideration upon which the whole debt rested, may not be shown by parol proof, as not being within the statute, as was decided in Seward vs. Vrendenburgh, 8 Johns. Ch. Rep., 29, confirmed in other cases in New York, and declared to be the reasonable doctrine in De Wolf vs. Raband et al., 1 Peters S. C. Rep., 476. But the agreement in this case, as proved by the witness, is in strict conformity with the statute, both the engagement and consideration being in writing, even if it be necessary that the latter should be in writing, which, however, is said, by an emi- nent judge, to be against the weight of American authority. 3 Kent's Com., 122, note e. The witness says, he called on Mr. Brawner in July, 1838, for the payment and settlement of these claims, that Mr. Braw- ner admitted his indebtedness, that the claim on the open ac- count was predicated on a letter written by Mr. Brawner to BROOKS VS. DENT. 531 Brooks, Stephens & Co. requesting them to let Mr. Stewart have goods. The witness then goes on to speak of another conversation with Mr. Brawner, immediately preceding the August term of the County Court in 1838, when he begged the witness not to sue him, and to write to Chauncy Brooks that he would cer- tainly make an early arrangement to pay the money that the witness did write accordingly, desiring him to indulge Mr. Braw- ner, and that he would not sue him, as he considered Mr. Braw- ner perfectly safe, and that Mr. Brooks left it to his discretion. And upon cross-examination the witness said, that "the letter stated that he, Henry Brawner, would be answerable for any goods bought by Stewart from Brooks. It was dated, as nearly as I [he] can recollect, in 1836, and before the date of the account, which Mr. Brawner recognized to be correct, and promised to pay." If, therefore, Stewart is liable upon this contract, and the en- gagement of Brawner is to be regarded as a collateral promise, which, however, does not necessarily follow from the fact that the account is made out against Stewart, still, the undertaking being in writing, and the consideration being likewise in writ- ing, the case seems entirely free from difficulty, even if the English construction of the statute of frauds, requiring both to to be in writing, be adopted here. I am, therefore, of opinion, that the statute of frauds is no defence against this claim, and that it is sufficiently proved. I do not understand it to be insisted that the personal estate of the deceased is adequate to pay his debts, and, my opinion is, that there is satisfactory evidence of the insufficiency to authorize a decree for the sale of the realty. The counsel for the complainants may, therefore, prepare a decree for that purpose, in which the question in reference to the liability of the estate of the deceased, for the whole amount of the note before mentioned, will be reserved, and with a fur- ther reservation of the right of Mrs. Brawner, or her personal representative, to establish her claim as a creditor, with respect 532 HIGH COURT OF CHANCERY. to the proceeds which may be derived from the sale of "Elles- lie," as against the heirs at law or devisees of her husband, and of all other questions not settled by this opinion. GEORGE H. KEERL AND HENRY K. FULTON vs. ROBERT FULTON. MARCH TERM, 1850. [CONSTRUCTION OF A WILL LIMITATION OF ESTATE CCRTEST.] A TESTATOR devised and bequeathed certain portions of his real and personal estate, to trustees, in trust for his daughter during her life, and after her death, in trust for any child, or children, she might have, with direction "that the trustees, or the survivor of them, should, after the death of his said daughter, convey and assign unto her children, if she should have, or leave, any at the time of her death, in equal proportions, absolutely, all the money and estate in his will devised and bequeathed unto the said trustees, for the use and benefit of his daughter and her children : provided, always, that no such conveyance or assignment should be made, until the child or children, to whom the same was to be made, shall have severally attained the age of twenty-one years." The daughter, who survived the testator, died, leaving two sons, one of whom died intestate and without issue, before attaining the age of twenty-one years. HELD That the deceased son of the testator's daughter, had a vested interest in the estate devised and bequeathed to his mother for life, and that, upon her death, and when he, if living, would have attained the age of twenty-one, the trustees would have been bound to convey and assign to him, his propor- tion of said estate. That his representatives can only claim as he could have done, if living, and as he had no power to call for the legacy before he attained twenty-one, so neither can his representatives insist upon the payment of it sooner. The same will contained the following clause : "After the death of my said wife, I give, devise and bequeath, all the rest, residue and remainder of my estate, real, personal, and mixed, unto my said children, (naming his six sons,) and to the said trustees, for my said daughter, as aforesaid, to be divided into equal proportions, for my said seven children, and to their heirs, executors and assigns forever." The daughter died, leaving the widow of the testator. HELD That the daughter took an absolute title in remainder, in one-seventh of this rest and residue, upon the death of the widow, to whom a life-estate was given. BJSERL VS. FULTON. 533 That upon the death of the widow, this ona-seventh will descend to the heirs at law of the daughter, without being liable to the curtesy of her husband, she not having been seized in fact, and in deed, of this estate, during the coverture. [The testator, Henry Keerl, by his will, which was proved in July, 1827, devised and bequeathed to his friend, Charles Bohn, (who renounced the trust,) and his son, George H. Keerl, portions of his real and personal estate, to be held by them in trust for his daughter, Amelia H. Keerl, during her life, free from the control of any future husband, and after her death, in trust for any child or children she might have ; with the further direction and declaration, "that the trustees or the survivor of them, should, after the death of his said daughter, convey and assign unto her children, if she should have or leave any at the time of her death, in equal proportions, abso- lutely, all the money and estate in his will devised and be- queathed unto the said trustees for the use and benefit of his daughter arid her children ; provided, always, that no such conveyance or assignment should be made until the child or children, to whom the same was to be made, shall have sever- ally attained the age of twenty-one years." The will further directed, that in case the said daughter should die without leaving issue or descendants of such issue, one moiety of the estate given to her for life should pass to her husband, if any such should survive her, and the remaining moiety to the other children of the testator and their repre- sentatives. The will also contains the following provision with regard to the estate given to the wife of the testator, who survived him, and is still living : "After the death of my said wife, I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed, unto my said children (naming his six sons) and to the said Charles Bohn and George H. Keerl, as trustees, for my said daughter, Amelia H., as afore- said, to be divided into equal proportions for my said seven children, and to their heirs, executors and assigns forever." 45* 534 HIGH COURT OF CHANCERY. Amelia, the daughter of the testator, survived him, and, after intermarrying with the defendant, Robert Fulton, herself died, leaving as her only issue two sons, the fruit of the marriage, one of whom, Robert Henry Fulton, subsequently died on the 24th of February, 1849, aged eighteen years and five months, unmarried and without issue, leaving surviving him his brother, Henry K. Fulton, one of the complainants, and the defendant, his father. The bill in this case was filed by the trustee Keerl and the surviving son of the testator's daughter Amelia, for the pur- pose of obtaining the aid and direction of the court with re- spect to the estate ; and also with regard to the estate, real, personal and mixed, which, upon the death of the testator's wife, was limited over to his seven children, including the daughter, in equal proportions. The case being submitted upon an agreement in writing, without argument, the Chancellor, after stating the facts, said :] THE CHANCELLOR: I think there can be no doubt, that the deceased son of the testator's daughter had a vested interest in the estate devised and bequeathed to his mother for life, and that upon her death, and when the proper time shall have arrived that is, when the son, if living, would have attained the age of twenty-one years the trustees would have been bound to convey and as- sign to such son his proportion of said estate. The will gives the daughter an estate for life, and upon her death, if she should leave children, the limitation over to them is absolute, in equal proportions. When the daughter died, therefore, her two sons surviving her, true estate vested in them absolutely, the convey- ance or assignment only being postponed until they should re- spectively attain the designated age, to wit, twenty-one. The time was only annexed to the conveyance or transfer, and not to the gift of the legacy ; and hence it was not at all material, with reference to the rights of the representatives of the lega- tees, whether they attained the age of twenty-years or not. KEERL VS. FULTON. 535 1 Roper on Legacies, 376, sec. 2, and the cases there referred to, clearly establish this to be the doctrine. As, however, by the express terms of the will, the convey- ance or assignment was not to be made by the trustees until the child or children of the testator's daughter should have severally attained the age of twenty-one years, so neither can it now be made to the representatives of the deceased son, who died under that age, until, if living, he would have attained it. The rule upon this subject is this "that if a legacy be given to A. to be paid at twenty-one years, and the intermediate in- terest is not given, and A. die before that period, his represen- tative must wait for the money until A., if living, would have attained twenty- one ; but if the legacy be limited over to B., on the event of A. dying under that age, and A. die before that time, B. will be entitled to call for it immediately upon the death of A." But as the representatives of A. can only claim as he could have done, if living, and as he had no power to call for the legacy before he attained twenty-one, so neither can his re- presentatives insist upon the 'payment of it sooner. Crickett vs. Dolby, 3 Ves. Jr., 10. I am, therefore, of opinion, that though the legacy vested in Robert Henry Fulton, the deceased son of the testator's daugh- ter, yet his representative cannot demand it until the period ar- rives when he, if living, would have been entitled to receive it ; that is, until he would have attained the age of twenty-one years. And when that time shall have arrived, the personal estate, which devolved upon him on the death of his mother, will be payable to his administrator to be appointed by the Orphans' Court, and will be there administered. With respect to the real estate to which the deceased be- came entitled at the same period, that, it is conceded by the answer, descended to his brother, Henry K. Fulton, one of the petitioners. When the widow of the testator, who is now living, shall die, the time will have arrived for dividing among the several children left by the testator, the rest, residue and remainder of his estate ; and until that event shall occur, there does not 536 HIGH COURT OF CHANCERY. seem to be any necessity for giving any directions with respect to this portion of his estate. I will, however, say, that it ap- pears to me very clear, that the daughter of the testator took an absolute title in remainder in one-seventh of this rest and residue, upon the death of the widow, to whom a life-estate was given ; and that, upon the death of the widow, this one- seventh will descend to the heirs at law of the daughter with- out being liable to the curtesy of her husband in the realty, she not having been seized in fact, and in deed, of this estate during the coverture. 4 Kent's Com., 29, 30. The putstanding life- estate in the widow of the testator, during the coverture, debars the husband of his curtesy. [No appeal was taken in this case.] THE BANK OF WESTMINSTER vs. WILLIAM PINKNEY WHYTE, PERMANENT TRUSTEE OF GEORGE SUTER. MARCH TERM, 1850. WM. P. WHYTE, PERMANENT TRUSTEE OF GEORGE SUTER vs. JOHN FISHER ET AL. [ABSOLUTE CONVEYANCE A MORTGAGE RIGHT op INSOLVENT TRUSTEE TO SELL MORTGAGED PROPERTY.] No matter how absolute a conveyance may be on its face, if the intention is to take a security for a subsisting debt, or for money lent, the transaction will be regarded as a mortgage, and will be treated as such. Parol evidence is admissible to show, that an absolute conveyance was intend- ed as a mortgage, and that the defeasance was omitted or destroyed, by fraud or mistake. But, unless accident, fraud, or mistake can be shown, or in cases of trusts, parol evidence cannot, either at law or in equity, be admitted to contradict, add to, or vary the terms of a will, deed, or other instrument. It is the right and duty of the trustee, in insolvency, to sell the mortgaged property of his insolvent, and pay off the liens and incumbrances thereon. BANK OF WESTMINSTER VS. WHYTE. 537 Though the transfer made to secure a debt, is in the nature of a trust, still it is the duty, and the right of the trustee, in insolvency, to dispose of the property. [On the 20th day of November, 1845, George Suter, of the city of Baltimore, being indebted to the Westminster Bank in the sum of six thousand dollars, agreed with that institution, through its cashier and agent, John Fisher, that, in considera- tion of the advance of three thousand dollars, in addition to the sum already due by him, he, the said Suter, would confess judgment for the whole sum of nine thousand dollars, and also by way of security for the repayment of the said loan of three thousand dollars, would assign and transfer to the said bank, three butcher stalls, held by him in different markets in the city of Baltimore. The advance was made by the bank, and the judgment confessed, and stalls assigned by Suter. On the thirteenth day of March, 1846, Suter applied for, and obtained the benefit of the insolvent laws, and William Pink- ney Whyte was appointed his permanent trustee. The trustee, under the insolvent laws, considering the trans- fer of the said stalls by Suter as only a security for the pay- ment of the loan of three thousand dollars, and claiming the disposition of said property in his capacity of permanent trus- tee, advertised the same for public sale in the city of Baltimore, to take place on the twentieth of July following. Before the day appointed for the sale, a bill was filed by the Westminster Bank, claiming the conveyance made by Suter as absolute, and the surplus, if any, after the payment of the three thousand dollar loan, of the money arising from their sale, as applicable to the part payment of the prior debt of six thousand dollars, and praying a writ of injunction against the the trustee, prohibiting such sale. An injunction was accord- ingly issued on the fourteenth of July. An answer was filed on the 30th of July, 1847, by the per- manent trustee, denying the title of said bank to said stalls, except by way of mortgage security, and praying a dissolution of the injunction. A bill was also filed on. the 10th of May, 1847, by Whyte, 538 HIGH COURT OF CHANCERY. the permanent trustee, to set aside the transfer as fraudulent in view of the insolvent laws ; and the answer of the defendant, Fisher, was filed on the 29th of June following. In October, 1848, a sale was made of said stalls by John Fisher, cashier of the said bank, to one David C. Steiner, and an order to the market master for the delivery of one of the said stalls given to said Steiner. On the 21st of October, 1848, upon a bill filed by the trus- tee, Whyte, for that purpose, an order was passed granting an injunction against the said Fisher and Steiner, and the market master, commanding them to refrain from interfering in any way with said property, until the further order of the court. Upon the motion to dissolve the injunction granted upon the bill of the Bank of Westminster, the Chancellor said :] THE CHANCELLOR : These cases have been argued together, and are so con- nected, as in the view of the counsel and the court, to consti- tute but one suit. The pecuniary interest involved is inconsiderable, but the questions which the case present are not unimportant. The general rule is too firmly established to be questioned, that no matter how absolute a conveyance may be on its face, if the intention is to take a security for a subsisting debt, or for money lent, the transaction will be regarded as a mortgage, and will be treated as such. Hicks vs. Hicks , 5 Gill fy Johns., 75 ; Dougherty vs. McColgan, 6 G. & J., 275. And though the defeasance was by an agreement resting in parol, still, as between the parties, the deed, though absolute on its face, will be considered a mortgage, for parol evidence is admissible to show that an absolute conveyance was intended as a mortgage, and that the defeasance was omitted or de- stroyed by fraud or mistake. 2 Kent's Com., 142, 143 ; Hender- son vs. Mayhew et al., 2 Gill, 393. But it is likewise undeniably true, that unless accident, fraud, or mistake, can be shown, or in cases of trusts, parol evidence cannot either at law or in equity, "be admitted to BANK OF WESTMINSTER VS. WHYTE. 539 contradict, add too, or vary the terras of a will, deed or other instrument." Bend vs. The Susquehanna, fyc. Co., 6 H. fy J., 128; Watkins vs. Stockett, to., 435. In this case, the transfer of the three stalls is absolute and unconditional, and if there was nothing in the answer of Mr. Fisher, to whom the transfers were made, and who acted as the agent of the bank in the negotiation with Suter, from which it could be fairly inferred that the object was to take se- curity for money loaned, or to be loaned, it would fall within the general rule ; and the transfer could not be qualified by the in- troduction of parol evidence, neither fraud nor mistake being alleged. But, looking to the pleadings in the cause, and especially to the answer of Fisher, to the bill filed by \Vhyte, as the perma- nent trustee of Suter, to set aside the transfer as fraudulent in view of the insolvent laws, which answer is invoked in these causes, and has been read without objection, and there can, I think, be no doubt that the transfer of the stalls was taken as security for the repayment of the money due to the bank, and not absolutely by way of purchase. The language of the answer is, "that the said sum of three thousand dollars was not lent specifically upon the security of the three stalls in different markets in the city of Baltimore, but on the joint security of said stalls and other property of said Suter, which, at the time was believed by this respondent, to be bound by said judgment, the object of the Bank and Su- ter being, as understood by the respondent, to secure not only the money then advanced, but the debt previously due the bank." It, therefore, clearly appears, that the transfer of the stalls was taken as security for a debt, and whether to secure the specific sum of three thousand dollars loaned Suter at that time, or the entire debt of nine thousand dollars, for which judgment was confessed, still the intention of the parties was merely to give and to take, a security for a debt, and, consequently, the trans- action must be treated accordingly that is, the transfer must be regarded as a mortgage or pledge, to secure the payment of a debt, and not as passing the absolute title to the creditor. 540 HIGH COURT OF CHANCERY. The position that this was the intention of the parties, de- rives powerful support from the fact, that the sum of three thousand dollars, advanced at the time of the transfer, was in- cluded in the judgment confessed by Suter. Indeed, I do not understand it to be contended by the counsel of the bank, that these three stalls were purchased by it, for the sum of three thousand dollars, because, if so, no conceivable reason could be assigned, for including that sum in the judgment. His argu- ment is, that the transfer was absolute, and that the bank was to be at liberty to sell and apply the proceeds of the sales to the ex- tinguishment, as far as they would go, of the entire debt of nine thousand dollars, for which the judgment was rendered. If that was the character of the transaction, that is, if the stalls in the hands of the bank, or its agent, were affected with a trust, to sell and apply the proceeds to the payment of the debt, still, I should think, that in the eye of a court of equity, the transfer would be regarded as a mortgage, being a mere security for the debt, and not an indefeasible transfer of the title. My opinion then, is, that this transfer of these stalls, though absolute in terms, must be treated as a security merely, and be subject to the considerations governing such transactions. And this conclusion is arrived at without trenching upon the principle, that parol evidence in the absence of fraud, or mis- take, is inadmissible to vary or contradict the clear import of a written instrument, but upon the confessions and statements of the answers themselves, which, in my opinion, prove clearly that a security merely was intended to be taken, and if so, it follows, that however absolute the form of the instrument, it will be dealt with as a mortgage. The remaining question has reference to the right of the in- solvent trustee of Suter to sell this property, and administer the proceeds of the sales under the control of the court, by which he was appointed, and this question depends upon the true construction of the 5th and 7th sections of the act of 1805, chap. 110. It is conceded, and indeed could not be disputed, since the decision of the case of Alexander vs. Ghiselin et al., 5 Gill, BANK OF WESTMINSTER VS. VVHYTE. 541 138, that if the transfer of this property is to be regarded as a mortgage or pledge for the security of a debt, that it would be the right and the duty of the insolvent trustee to sell it and pay off the liens and incumbrances thereon, the opinion of the Court of Appeals in that case being explicit to that effect. But it is urged, that the transfer here, though made to secure a debt, is in the nature of a trust, and that the insolvent trustee has no authority to interfere with the trustee selected by the conven- tion of the parties, whose right it is to proceed in the discharge of his duty, undisturbed by any such interference. It appears to me, however, that, assuming the transaction to be such as the counsel of the bank has characterized it that is, that the property in question, though transferred to Mr. Fisher absolutely, was nevertheless affected with, and to be re- garded as subject to, a trust for the payment of the money due from Suter to the bank ; and that parol evidence is admissible for the purpose of showing the trust, still it seems clearly to come within the scope of the principles settled by the appellate court in the case referred to. Looking to the design of the insolvent laws, as expounded in that case, which was to secure a prompt, single and harmo- nious administration of the estate of the insolvent, which could only be effected by bringing all the parties interested be- fore one and the same tribunal ; it would seem to be essential that no one should be permitted to participate with the insolv- ent trustee in the execution of the trust, by which, as observed by the court in that case, "adverse interests might be created, delays engendered, if not ensured, and probably different, and possibly conflicting, tribunals consulted." Considering that this question is, in effect, settled by the case in which these remarks were made, I shall pass orders, dissolv- ing the injunction issued upon the bill of the Bank of West- minster, and continuing that which issued upon the bill of the insolvent trustee. [No appeal was taken from this order.] VOL. i46 542 HIGH COURT OF CHANCERY. HORACE ABBOTT ET AL. ^ vs. THE BALTIMORE AND \ JULY TERM, 1850. RAPPAHANNOCK STEAM PACKET j COMPANY ET AL. j [PRIORITY OF SEAMEN'S CLAIM FOR WAGES LIABILITY OF OWNER FOR SUPPLIES CONTRACTS OF CORPORATIONS.] THE crew of a steamboat, plying between the ports of adjoining states, upon navigable tide water, have a right to proceed for wages due them, by libel in the District Court of the United States, and have a lien on the vessel, her tackle and furniture, for such wages. This right to libel the vessel in the admiralty courts for wages, extends to every officer and man who assists in navigating her, except the captain. The officers and seamen have a triple security for their wages, they may have recourse to the vessel, the owner, and the master. The seamen's claim for wages, follows the ship and its proceeds, in whose hands soever they may come, is preferred to all other demands, and consti- tutes a sacred lien, which continues as long as a single plank of the ship re- mains, and extends to the whole amount of compensation due the seamen. The owner is liable for the necessary supplies for the vessel furnished by order of the master, and if he seeks to escape such liability, he must show , by satis- factory proof, that the credit was given to others. If the owner can make out, by evidence, that the credit was given to the master alone for such supplies ; If it appears, that there was a special promise taken from him and relied upon, the owner will not be liable. Corporations can make no contracts which are not necessary, either directly or indirectly, to effect the objects of their creation, and a corporation itself, may, in an action brought against it upon such contract, deny its power to enter into it. The act of 1829, ch. 42, incorporated the defendant, "for the purpose of estab- lishing and conducting a line of steamboats and stages, orcarriages, between Baltimore and Fredericksburg, and the several ports and places on the Rap- pahannock, and on the rivers and waters of the Chesapeake bay, for the con- veyance of passengers, and transportation of merchandise and other arti- cles." The company entered into an obligation to aid in an improvement, the purpose of which, was to open the Rappahannock river, and render it navigable to the basin, in, or near Fredericksburg. HELD That the proposed improvement, being above the Virginia terminus of the route between which, and Baltimore, the boats were to run, for that reason was not within the authority conferred upon the company by its charter. And even if it had been between the termini, it would not have been within the powers granted by the act of incorporation. [In this case, a bill was filed by the complainants on the 13th of October, 1846, alleging the indebtedness of the Steam Packet ABBOTT VS. BALT. AND RAPP. STEAM PACKET CO. 543 Company to various individuals in large sums of money, and its inability to pay such debts, and praying that a receiver might be appointed to take charge of and sell the vessels and other property of the company, and for an injunction to restrain the defendants (trustees to whom the vessels of the company had been assigned) from navigating said vessels, and for further relief. An injunction was granted on the same day, and a receiver appointed, unless cause to the contrary should be shown by the 10th of the ensuing month. No sufficient cause to the contrary having been shown, an order appointing a receiver was passed on the 1st of January, 1847, and the receiver so appointed, having qualified by giv- ing bond with approved surety, was authorized and directed, by an order passed on the 4th of the same month, by consent of parties, to make sale of the property which might come into his hands. The sale was made on the 2nd of February, 1847, and finally ratified on the 17th of March following ; and the Auditor hav- ing stated and reported an account between the property thus sold and the receive*, numerous exceptions were filed thereto by the parties. The principal questions involved, are upon the claim of the seamen for a prior lien upon the vessel for wages, upon the claims of creditors who furnished supplies for the ves- sel, upon certain claims founded upon the drafts of the captain on the company, and upon a claim of Alexander J. Marshall, upon a contract entered into by him with the president of said company. These exceptions being argued, the Chancellor, in giving directions for a further account, says:] THE CHANCELLOR : Among the numerous creditors who have come in upon this fund are the seamen who claim the wages due them for navi- gating and services on board the vessel for the year 1846, and in their behalf it is insisted, that they are entitled to a prefer- ence over the other creditors, upon the ground that the wages 544 HIGH COURT OF CHANCERY. of the seamen constitute a lien upon the vessel, or the proceeds derived from the sale of it. This claim will be first considered. This Steam Packet Company was incorporated by the act of 1829, chapter 42, for the purpose of establishing and conduct- ing a line or lines of steamboats, vessels, and stages or other carriages, between Baltimore and Fredericksburg, and the several ports and places on the Rappahannock, and the other rivers and waters of the Chesapeake bay, for the conveyance of passengers, and transportation of merchandise and other articles. The purpose, then, for which the company was incorporated, was to open a communication by water between the ports of Maryland and Virginia. The vessels were to ply between the two states in the waters of the Chesapeake bay and the Rap- pahannock, and there would seem to be no doubt, indeed it is not understood to be questioned, that the seamen have a right, for wages due them in such service, to proceed by libel in the District Court of the United States, and that, as a general rule, they have a lien on the vessel, her tackle and furniture. Smith vs. the Pelein, Gilpin's Rep., 203 ; Wilson vs. the Ohio, same book, 505. In this last case the libel was for wages on board a steam- boat plying between the ports of adjoining states, on a navi- gable tide river, and the proceeding was sustained ; and it was also decided, that the title to sue in the admiralty for wages, extended to the pilot, the deck hands, the engineer and the fire- men. In short, this right to libel the vessel in the admiralty courts for wages, extends to every officer and man who assists in navi- gating her except the captain. Ross vs. Walker, 2 Wilson, 264. The authorities are abundant to show, that the officers and seamen (except the captain) have a triple security for their wages they may have recourse to the vessel, the owner, and the master. Bronde, et al. vs. Haven, Gilpin's Rep., 592, 595 ; 3 Kent's Com., 196, 197. Chancellor Kent speaks of the seamen's claims for wages as entitled to the favor and protection of the law that this claim ABBOTT VS. BALT. AND RAPP. STEAM PACKET CO. 545 follows the ship and its proceeds, in whose hands soever they may come, by title or purchase that it is preferred to all other demands, and constitutes a sacred lien, which continues as long as a single plank of the ship remains, and extends to the whole amount of the compensation due the seamen. The claims, therefore, of the seamen, in this case, are certainly entitled to be paid out of the proceeds of the vessel, her tackle and furniture, before all others, unless they have in some way deprived themselves of the priority of payment, to which they were so clearly entitled. Authorities have been cited to show that a contract between the crew and the captain, that the latter alone should be liable for their wages, would be disregarded, as unconscientious, and that, nothwithstanding an express contract to that effect, the seamen might resort to either the vessel or owners for payment. The Chancellor does not think it necessary to decide this ques- tion, for conceding that an express contract with the captain that he, and he alone, should be liable to the crew for their wages, would preclude the latter from having recourse to the vessel and owners, he can see nothing in the evidence in this case, which would restrict the crew to but one of the three rem- edies which the law clearly gives them, in the absence of ex- press contract. It is not understood to be contended, that exemption can be claimed for the vessel and owners from the demand of the sea- men for wages, unless a contract to that effect can be establish- ed, but it is contended by those who resist the claim of the seamen in this case, that such a contract, like any other fact, may be proved by circumstances, and that the circumstances of this case are sufficient for that purpose. There is not certainly in this case any direct evidence of a contract that the hands employed in the vessel would look ex- clusively to the captain for payment, and I have not been able in the evidence to find circumstances sufficiently strong to induce me to infer one. It is shown, to be sure, that two of the hands knew of the engagement between the captain and the owners, that the former would pay the crew, and furnish provisions for 46* 546 HI( >H COURT OF CHANCERY. the table, upon certain terms contained in the contract between him and them ; but it does not appear when they acquired this knowledge, or that they were willing or agreed, that their right to look to the vessel and owners should be destroyed by it. With regard to the rest of the crew, there is not, in my opinion, any competent evidence that they had any knowledge whatever of this contract between the owners and the captain. It seems to me impossible to say, looking to the scrupulous suspicion with which contracts and stipulations with seamen are watched by the courts, for the purpose of affording them that protection which from their improvident habits they but too frequently require, that they should, upon such proof, be con- strued out of the most important security for their hard earned wages. Jlbbott, 722, note 11, and"745, note 11 ; Nickerson vs. Schooner Monsoon, 5 Law Reporter, 416. My opinion then is, that the seamen in this case have a lien on the proceeds of the vessel, and are entitled to a preference over the other creditors. This disposes of claims from No. 11 to 25, inclusive, and of No. 35, all of which are for seamen's wages. Another class of creditors who have come in for payment out of this fund, are those who have furnished supplies for the vessel, but they claim only to be general creditors, the supplies having been furnished in the home port. That for the necessary supplies for a vessel, furnished by or- der of the master, the owner is liable, seems to be settled, and when he seeks to escape such liability, he must make out, by satisfactory proofs, the facts upon which he claims the exemp- tion. If he insists that he is not liable, he must show that the credit was given to others ; as, by similar proof, the master also may avoid a responsibility which generally rests upon him as well as upon the owner. Jlbbott, 168, 169 ; 3 Kent's Com., 133, note b. If the owner can make out, by evidence, that the credit was given to the master alone, for such supplies, if it appears there was a special promise taken from him and relied upon, the owner would not be liable ; and on the other hand, the master ABBOTT VS. BALT. AND RAPP. STEAM PACKET CO. 547 would not be liable, if a like promise of the owner was taken and relied upon. Abbott, 168, note 11 ; 5 Law Reporter, 116. Unless evidence of this description can be furnished, it is believed to be very well established that the owners are liable for necessary supplies furnished the ship by order of the master. The question, then, in this case, is, have these owners suc- ceeded in establishing, by evidence, that the persons who fur- nished supplies for this vessel, did so upon the credit of the master alone ? Looking to all the proof upon this point, and giving it a fair consideration, I cannot agree with the counsel, that credit for these supplies was given exclusively to the mas- ter, without which, the owner was unquestionably liable. In fact, with regard to the claims numbered 9 and 10, the idea of the exclusive liability of the captain could not have been en- tertained by these owners, as it appears by the records, that they confessed decrees for those claims at March term last, in the United States District Court for the Maryland District. It would be a consumption of time and space for which there would be no compensating advantage, to enter upon an examination of the proof, upon which my conclusions upon this question of fact are formed, and I therefore content myself with saying, that I am not satisfied that the parties who fur- nished these supplies, contracted to look exclusively to the captain for their money, and, therefore, my opinion is, that such of the creditors of this class as may succeed in proving their claims, will be entitled to come in upon the fund as gen- eral creditors, after the satisfaction of the liens and preferences already referred to. In addition to the claims of the seamen and of the parties who furnished supplies for the vessel, certain claims have been filed, founded upon the drafts of the captain on the company. These drafts are dated on the 7th of December, 1846, and the vessel ceased to run on the 12th day of the same month ; and on the same day a resolution was passed by the directors of the company, directing these drafts to be charged to the ac- count of the captain, and credited to the parties entitled to re- ceive the same, and in case the sum due the captain from the 548 HIGH COURT OF CHANCERY. company, should be insufficient to pay them, that then they should be paid pro rata. The parties to whom these drafts were given were directors and officers of the company, who must have known at the time of its embarrassed condition, and that the crew and provision men had not been paid. It appears also by the evidence of the captain, that he gave them with reluctance, if not under absolute coercion, and that they were given by him for money borrowed from the parties in whose favor they were drawn. Under the circumstances attending the drawing and direction for the payment of these drafts, I do not think they are entitled to any very great degree of favor, but yet it seems to me, they should not be wholly excluded from all participation in the fund out of which they were to be paid. It appears that there was at that time due the captain from the company, about $2400, which accrued in the year 1846, for his pay and com- pensation in that year. The contract between him and the com- pany, as disclosed by the proof, was, that for a fixed compen- sation the captain was to find the vessel in hands and provi- sions, and to pay generally the expense of navigating her, that the contract was duly performed by both parties until the year 1846, when the company failed to comply with its engagement to the captain, and the latter was consequently unable to pay the crew, &c. I have already expressed the opinion, that the crew have a lien on the proceeds of the vessel, and that those who fur- nished the supplies, though they have no lien, are to be treated as creditors at large, and entitled to such dividend as may be fairly apportioned to them. As, however, according to the contract between the company and the master, the latter was to pay the hands and the pro- vision men, and as the sum due the captain from the company is the primary fund for that purpose, my opinion further is, that whatever fund may have been found to be due from the com- pany to the captain when the drafts in question were given, should be apportioned pro rata between the crew, the provision men, and the holders of the drafts referred to that for what- ABBOTT VS. BALT. AND RAPP. STEAM PACKET CO. 549 ever balances may remain due to the crew, after crediting their proportion of the amount due the captain as aforesaid, they shall be paid out of the proceeds of the sales made by the re- ceiver, as preferred creditors that the parties who furnished supplies for the vessel shall be entitled to receive a distributive share of the balance of those proceeds, for the sums which may remain due them, after the application to their payment of their proportion of the amount due from the company to the captain ; but that the holders of the drafts given by the captain on the 7th of December, 1846, shall receive nothing but the dividend of the amount due the captain, distributed as before explained, as I think all they can fairly claim is to participate in that fund. The only remaining claim which it is necessary to notice, is that presented by Alexander J. Marshall, numbered 53 in the statement of claims by the Auditor. Without stopping to in- quire whether the obligation upon which this claim is founded is the obligation of the company, or of the gentleman who signed the same as president, or whether the terms upon which it was given have been complied with or not, I am of opinion, that regarding this obligation as properly executed to bind the company, it is still not a valid instrument as against them, for the want of authority to enter into such an engagement. It has been already stated, that this company was incorpo- rated "for the purpose of establishing and conducting a line of steamboats and stages or carriages between Baltimore and Fredericksburg, and the several ports and places on the Rap- pahannock, and on the rivers and waters of the Chesapeake bay, for the conveyance of passengers and transportation of merchandise and other articles." The object of the charter was to authorize the transportation of passengers and merchandise between Baltimore and Freder- icksburg ; but the purpose contemplated by the improvement, in aid of which the obligation under consideration was given, as declared upon the face of the instrument, was to open the Rappahannock river, and render it navigable, &c., to the basin in or near Fredericksburg. The improvement proposed to be 550 HIGH COURT OF CHANCERY made was above the Virginia terminus of the route, between which terminus and Baltimore, the boats were to run, and was not, therefore, for that reason, within ffie authority conferred upon the company by their charter ; but even if the improve- ment had been between the termini, I do not think it would have been within the powers granted by the act of incorpora- tion. The Court of Appeals have decided, that corporations are not only incapable of making contracts which are forbidden by their charters, but in general they can make none which are not necessary, either directly or indirectly, to effect the objects of their creation. The Penn. Del. and Md. Steam Navigation Company vs. Dandridge, 8 Gill fy Johns., 248 ; and that the corporation itself may, in an action brought against it upon such contract, deny its power to enter into it. This case, I think, is decisive of the question, and the claim therefore founded upon the contract referred to ; must be disal- lowed and rejected. [No appeal was taken from this order.] DEX ABATEMENT OF SUITS. See CONSTRUCTION OF STATUTES, 2. ABSOLUTE CONVEYANCE DECLARED A MORTGAGE. See MORTGAGE. < ACCOUNT STATED. See SURCHARGING AND FALSIFYING ACCOUNTS. ACTS OF ASSEMBLY. 1704, ch. 69. Relating to usury, 450. 1785, ch. 77, sec. 11. Authorizing the Court of Chancery to record deed in certain cases, 528. 1793, ch. 43. Landlord and Tenant, 390. 1794, ch. 54. Directing proceedings on Judgments, 462. 1795, oh. 24. " " 463. 1798, ch. 84. Production of Books and Papers, 201. 1798, ch. 101, sub. ch. 13, sec. 5, 300. 1812, ch. 77. Insolvent System, 74. 1816, ch. 221. " " 74. 1818, ch. 193, sec. 10. Extending Dower, 39. 1820, ch. 191, sees. 8, 10, 12. To direct Descents, 226. 1821, ch. 201. Charter of Savage Manufacturing Co., 307. 1822, ch. 162. Abolishing Estates in Joint Tenancy, 292. 1824, ch. 79, sees. 15, 19. Charter of Chesapeake and Ohio Canal Co., 253. 1825, ch 119. Estates for Life, 293. 182f>. ch. 123, sec. 15. Incorporating Annapolis and Elkridgc Rail Road Company, 109. 1^2'J. ch. 42. Incorporating Baltimore and Rappahannock Steam Packet Company, 542. Ib31. ch. 281, sees. 3, 4, 5. Slaves Manumitted not to remain in the State, 357. 1832, ch. 230. Court of Appeals to award damages in cases of appeal for delay, 330. 1834, ch. 293. Supplement to Insolvent Laws, 175. 1835, ch. 380, sec. 8. To take Testimony in cases of Injunctions, on mo- tion to dissolve, 103. 1838, ch. 205. Mechanics' Lien Law, 189. 1831, ch. 168. Authorizing Annapolis and Elkridge Rail Road Co. to is- sue Bonds, 111. 552 INDEX. ACTS OF ASSEMBLY Continued. 1842, ch. 229. Regulating Chancery Practice in certain cases, 343. 1845, ch. 176, sec. 4. Mechanics' Lien, 18W 1845, ch. 352. Limiting Defences ft Usury, 66, 450. 1845, ch. 367. Right of Appeal, 324. ADMISSIONS. See PLEADING. PRACTICE IN CHANCERY, 31. AGENT. 1. The authority of an agent to make an agreement for his principal need not be in writing. Small vs. Owings, 363. 2. A vote or resolution of a Corporation, appointing an agent, need not be entered on the minutes, but may be inferred from the permission or acceptance of his services. Elysville Manf. Co. vs. Okisko Co., 392. 3. The president of one corporation subscribed for stock in another corpo- ration. The certificate for the stock was received by the agent of the former, and retained by it, and the stock on two occasions was voted by an officer or member of the former corporation. HELD That from these facts the authority to the president to make the subscription might be presumed. Ib. AMENDMENT. See PRACTICE IN CHANCERY, 5. ANSWER. See EXCEPTIONS TO ANSWER, 1 to 3. EVIDENCE, 1, 2. ANSWER FOUNDED ON HEARSAY. See INJUNCTION, 8, 9. PRACTICE IN CHANCERY, 11. APPEAL. 1. An appeal and a bond to prosecute the appeal will not, under the act of 1845, ch. 367, independently of the direction of the court, delay the execution of the order appealed from. Williams vs. Savage Manufac- turing Co., 307. 2. Whether such direction shall or shall not be given, is referred by the legislature to the sound discretion of the court upon a view of all the circumstances of the case. 16. 3. An appeal will lie from every decision which settles a question of right between the parties, no matter whether the decision was adverse or by consent or default. Chesapeake Bank vs. McLellan, 328. 4. The right to appeal for the mere purpose of delay seems to be recog- nized by the act of 1832, ch. 230, which directs the appellate court to award damages in such cases, over and above the interest allowed by law on the judgment. Ib. 5. Whether an appeal will lie or not in any given case, is for the appellate court, and not for this court, to decide ; it being a question relating to the jurisdiction of the superior tribunal, and, therefore, for it alone to determine. Ib. See PRACTICE INT CHANCERY, 42. INDEX. 553 APPEARANCE. See PRACTICE IN CHANCERY, 28. APPLICATION OF PAYMENTS. 1. The general rule on the subject of appropriation of payments, gives to the debtor, in the first place, the right to make the application, and then upon his omitting so to do, to the creditor. McTavish vs. Car- roll, 160. 2. If a party is indebted on mortgage and simple contract, and making a payment, neglects to apply it, the law will apply it to the mortgage or bond, as most beneficial to the debtor ; and such is the undoubted rule where no particular application is made by either party. 76. 3. Payments made generally are applied in the extinguishment of debts bearing interest where there are others due the same creditor, not car- rying interest. Ib. 4. If a party is indebted on several accounts and makes a payment, he may apply it to either, if he does not, the creditor may do so, and if neither does, the law will appropriate it according to the justice of the case. 76. ASSIGNMENT. 1. By the terms of the assignment of a life insurance policy, the assignee was to receive the proceeds, and if other securities held by him were insufficient for that purpose, to apply the same to the satisfaction of his claims against the assignor, and to pay over the residue, if any, to the wife of the latter. HELD That this was such a consummate transfer and delivery of the policy as to take from the assignor the legal power and dominion over it, and authorized the insurance company to pay the money to the assignee, without the interposition of the administrator of the as- signor, and that the title of the wife to the residue, after paying the claim of the assignee, was good. Harrison vs. McConkcy, 34. 2. An obligor who has paid the judgment of the creditor, and taken an as- signment thereof to himself, may use such judgment for his indemnity, so far as it clearly and certainly appears that his co-debtor ought to contribute. Wheller's Estate, 80. 3. Whoever may be the holder of the debt intended to be secured by the mortgage, will be considered in equity as the owner of the mortgage itself. Clark vs. Levering, 178. 4. The debt and the mortgage are so inseparably united, the one being in truth appurtenant to the other, that a separate and independent aliena- tion of them cannot be made. 76. See VENDOR'S LIEN. ASSIGNOR AND ASSIGNEE. See ASSIGNMENT. ATTORNEY. 1. An attorney, either in law or in fact, would not have the power to bind his principal by an agreement to surrender his lien upon land, and look exclusively to the trustees appointed by a deed for the sale there- of, without an express authority for that purpose. Doub vs. Barnes, 127. 2. A bill filed by a corporation need not be under its corporate seal. That it is the bill of the corporation, is sufficiently vouched by the signature VOL. I 47 554 INDEX. ATTORNEY Continued. of the solicitor, whose authority to file it need not be exhibited. Georges Creek Coal and Iron Company vs. Detmold, 372. See COMMIS- SIONS, 3. AUDITOR. See PRACTICE IN CHANCERY, 23. BANKS. See LIABILITY OF CORPORATIONS ON TRANSFERS OF THEIR STOCK. BILL AND ANSWER. See PRACTICE IN CHANCERY, 2, 4. BILL OF REVIEW. See PRACTICE IN CHANCERY, 41. BILL OF REVIVOR. See DECREE DORMANT FROM LAPSE OF TIME, 2. BILL OF RIGHTS. See CONSTITUTIONAL LAW, 8, 9. CERTAINTY. See PART PERFORMANCE, 4, 6 to 8. SPECIFIC PERFORMANCE. CHANCERY PRACTICE. See PRACTICE IN CHANCERY. CHATTEL INTEREST. See LEASE, 1. DOWER, 1. CHILDREN. See POSTHUMOUS CHILDREN. CIRCUITY OF ACTION. See PRACTICE IN CHANCERY, 36. CONTRIBUTION AMONG JOINT OBLIGORS, 3. COMMISSIONS. 1. Upon a devise of real and personal property to a trustee, in trust, to ap- ply the income arising therefrom for the mutual benefit of the uncle and aunt of the testator for life, and after the death of the uncle to the mutual benefit of the aunt and her children, and the testator having said that the trustee whom he also appointed his executor, shall have "ten per cent, on the whole amount of property which may come into his hands." HELD That he was entitled to this per centage on the whole amount of property, and not on the income only, irrespective of the sum which may have been allowed him by the Orphans' Court as exec- utor, and in this respect the two offices are to be regarded as dis- tinct as if filled by two different persons. Mitchell vs. Holmes, 287. 2. A trustee may waive his claim to commissions where that claim exists. Barry vs. Barry, 20. 3. Where the trustee, by the terms of the deed creating the trust, was en- titled to an allowance for costs and expenses attending its execution, such allowances, should the nature of the trust and the circumstances of the case require it, will embrace, even without an express provision, the expense of employing an attorney. Green vs. Putney, 262. INDEX. 555 COMMISSIONS Continued. 4. When several sales are made at different times, the commissions of the trustee should be calculated upon each sale separately, and the sales are not to be treated as if made at one time. Goodburn and Wife vs. Stephens, 420. COMMISSIONERS TO MAKE PARTITION. See PARTITION. CONCURRENT JURISDICTION. 1. When two courts have concurrent jurisdiction over the same subject matter, the court in which the suit is first commenced is entitled to re- tain it. This rule is vital to the harmonious movement of the courts, and any other would unavoidably lead to perpetual collisions and be productive of the most calamitous results. Brooks vs. Delaplaine, 351. 2. The powers of the County Courts, within the boundaries assigned them are equal in every respect to the powers of the Court of Chancery. Ib. 3. The jurisdiction of courts of equity in cases of dower, is concurrent with that of courts of law, and if the legal title to dower be admitted or settled, equity will proceed to the assignment of the dower, and will also compensate the widow in damages for its detention. Kiddall vs. Trimble, 143. See JURISDICTION, 7, 15. CONSTITUTIONAL LAW. 1. When the legislature transcends its authority, the courts of justice in the discharge of their duties are bound to pronounce its acts void, but this high power of the judiciary should be exercised with great cau- tion, and only when the act of the legislature is manifestly beyond the pale of its authority. Wilson vs. Hardesty, 66. 2. Retrospective laws and laws divesting vested rights, unless ex post facto, or impairing the obligations of contracts, do not fall within the provi- sions of the constitution of the United States, however repugnant they may be to the principles of sound legislation. Ib. 3. The act of 1845, ch. 352, as affecting pre-existing contracts, tainted with usury, is neither prohibited by the constitution or bill of rights of this state, nor does it come within the provision contained in the con- stitution of the United States, prohibiting the states from passing ex post facto laws, and laws impairing the obligation of contracts. Ib. 4. Nothing can be clearer than that private property cannot be taken for public use, without making just compensation to the owner. Hamilton vs. .Innapolis and Elkridge Rail Road Company, 107. 5. The right of eminent domain gives to legislative authority the control of private property for public uses, subject to the condition, that a rea- sonable and just compensation shall be made to the owner. 76. 6. Any attempt to exert this power without complying with the condition, would be at war with the great principles of natural justice, and in direct conflict with the constitution of the United States. 76. 7. The principle that the right of eminent domain authorizes the govern- ment to take and appropriate private property for public uses, without making compensation to the owner, unless there is some provision in 556 INDEX. CONSTITUTIONAL LAW Continued. the constitution restrictive of the power, cannot be maintained in Maryland. Harness vs. Chesapeake and Ohio Canal Company, 248. 8. Such an appropriation by law without compensation, would be in con- flict with the sixth and twenty-first articles of the bill of rights, the latter of which declares "that no freeman ought to be taken or impri- soned, or disseized of his freehold, liberties or privileges, or outlawed or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the laws of the land." Ib. 9. To say that the legislature has such power, is to confer upon it judicial powers, and to confound those departments of government which the declaration of rights says shall be kept forever separate and distinct. 16. 10. The legislature of this state has in no instance, in the exercise of the right of eminent domain, omitted to provide compensation to the owner of the property taken for public uses, and such provision was made by the 15th section of the act of 1824, ch. 79, passed to confirm an act of the legislature of Virginia, incorporating the Chesapeake and Ohio Canal Company. The 15th and 19th sections of the charter of this company construed. Ib. 11. State insolvent laws, although constitutional in their action upon the rights of their own citizens, are unconstitutional and void when they af- fect the rights of citizens of other states. Potter vs. Kerr, 275. CONSTITUTION OF THE UNITED STATES. See CONSTITUTIONAL LAW, 2. CONSTRUCTION OF PARTNERSHIP AGREEMENT. See PARTNERSHIP AND PARTNERS, 3, 4. CONSTRUCTION OF STATUTES. 1. Remedial laws are to be construed liberally to advance the remedy and obviate the mischief, but they are not to be so expanded as to compre- hend cases altogether beyond their purview. So to apply and enlarge the law, would be judicial legislation under the guise of interpreta- tion. Franklin vs. Franklin, 342. 2. The act of 1842, ch. 229, only provides a more summary and economi- cal remedy, when cases abate either before or after decree, by the death of the parties, and does not embrace the case of a decree which has become dormant by lapse of time. Ib. 3. The act of 1793, ch. 43, forbids the restoring the landlord to the posses- sion of the premises, when he is proceeding under that act, only when the title is disputed or claimed by some person, in virtue of a right or title accrued or happening since the commencement of the lease. Mousley vs. Wilson, 388. See APPEAL, 1, 4. CONSTITUTIONAL LAW, 3, 10. CORPORATIONS, 7. DECREE DORMANT FROM LAPSE or TIME, 1. DEEDS VOID UNDER THE INSOLVENT LAWS, 1, 7. INDEX. 557 CONSTRUCTION OF STATUTES Continued. See DOWER, 3, 14. FREE NEGROES. JUDGMENT LIEN, 3. MECHANICS' LIEN, 3. RECORDING DEEDS. USURY, 4. CONSTRUCTION OF WILLS. See WILL AND TESTAMENT. COMMISSIONS, 1. ELECTION, 1. POSTHUMOUS CHILDREN. CONTRACTS. See CORPORATIONS, 4, 5 to 8. SPECIFIC PERFORMANCE. PART PERFORMANCE. CONTRIBUTION. See ASSIGNMENT, 3. CONTRIBUTION AMONG JOINT OBLIGORS. CONTRIBUTION AMONG JOINT OBLIGORS. 1. Three joint obligors in a single bill, though jointly and severally liable to the creditor for the whole debt, are, as among themselves, each bound to contribute one-third ; because each must be supposed to have received that proportion of the consideration upon which the obligation was given. Wheeler's Estate, 80. 2. One of such obligors, who has received from another a sum of money or other property equal in value to the proportion of that other in the com- mon burden, and released him from all liability on account thereof, must be supposed to have received a consideration equal to two-thirds of the debt, and must be charged with that proportion in adjusting the equities between himself and the remaining obligor. Ib. 3. The third obligor, who has been compelled by the creditor to pay a sum exceeding his one-third, will be allowed at once, in equity and without circuity, to go against the party thus supposed to have received two- thirds of the consideration of the debt, for such excess. Ib. 4. The obligor who has paid the judgment of the creditor, and taken an as- signment thereof to himself, may use such assignment for his indemnity, so far as it clearly and certainly appears that his co-debtor ought to con- tribute. Ib. 5. Where two persons executed a joint note, the estate of the one, will, Tinder the chancery rule, be charged with only half the amount, unless it is shown that he is the principal debtor, or that the other is insolvent. Brooks vs. Dent, 523. CONVERSION. Lands devised to be sold, are turned into money and considered in equity as personal estate. Thomas vs. Wood, 296. See MORTGAGOR AND MORTGAGEE, 6. 47* 558 INDEX. CONVEYANCES, VACATING OF. 1. The circumstances which will warrant the court in setting aside a convey- ance, actually executed, must be much stronger than would be required to induce it to withhold its aid, if applied to, to compel an execution of a mere agreement to convey. Hollis vs. Hollis, 479. 2. A voluntary conveyance made by a person not indebted at the time, in favor of his wife and children, cannot be impeached by subsequent creditors upon the mere ground of its being voluntary. Atkinson vs. Philips, 507. 3. The mere fact, that the grantor was indebted at the time, does not, per se, ' constitute a substantial ground to avoid a voluntary conveyance for fraud, even in regard to prior creditors. The question of fraud is to be ascertained from all the circumstances of the case, and not alone from the mere fact of indebtment at the time. 16. 4. If the grantor be not indebted to such a degree, as that the settlement will deprive the creditors of an ample fund for the payment of their debts, the consideration of natural love and affection will support the deed, although a voluntary one, against creditors, because it is free from the imputation of fraud. Ib. 5. But the existence of such means to pay creditors must be shown by the parties claiming under the deed, and the burden of proof is clearly upon them to repel the fraud presumable from the condition of the grantor, at the time the conveyance was made. 16. 6. A voluntary conveyance in favor of the wife of the grantor, was set aside in this case in favor of creditors, upon proof that he was largely in- debted at the period of its execution, and no attempt being made to prove that he had means for the payment of his debts. 76. 7. A conveyance purporting to be made for a monied consideration of $3,500, was also set aside upon clear proof that the grantor, at the time, was irretrievably insolvent, and knew himself to be so, and that it was made with the meditated design to injure and defraud his creditors. 76. 8. A deed, fraudulent and void as to creditors, is, nevertheless, good inter paries. Ib. 9. The permanent trustee of an insolvent debtor has the right to file a bill to set aside conveyances made by his insolvent, as fraudulent at common law or under the statute of Elizabeth, against creditors. Unless the trustee had this power, the creditors prejudiced by the conveyance might be without remedy. 76. See INADEQUACY OF PRICE, 6. CORPORATIONS. 1. So long as the charter of a company continues in existence, their property cannot be taken from them upon the allegation that it was acquired by an abuse of their chartered privileges. Hamilton vs. Annapolis and Elk Ridge Rail Road Company, 107. 2. The land in question having been condemned for the use of the Annapolis and Elk Ridge Rail Road, under the act of 1826, ch. 123, sec. 15, and the inquisition returned to and duly confirmed by the proper County INDEX. 559 CORPORATIONS Continued. Court, the propriety of the condemnation and use of the property cannot be drawn in question, in an incidental or collateral proceeding. Ib. 3. A bill filed by a corporation, need not be under its seal. That it is the bill of the corporation, is sufficiently vouched by the signature of the solicitor, whose authority to fill it need not be exhibited. Georges Creek Coal and Iron Co. vs. Detmold, 372. 4. A corporation may avail itself of its want of authority to make the con- tract sought to be enforced against it, though it has received and enjoyed the consideration upon which it was made. Jllbert and wife vs. Savings Bank et al., 407. 5. But where a contract of a corporation has been executed by the parties to it, it is not competent for a mere stranger to the contract to assail it, and deprive the corporation of the advantage derived from it, upon the ground that it was interdicted by the charter. Ib. 6. Corporations can make no contracts which are not necessary, either directly or indirectly, to effect the objects of their creation ; and a cor- poration itself may, in an action brought against it upon such contract, deny its power to enter into it. Abbott vs. The Baltimore and Rappahan- nock Steam Packet Co., 542. 7. The act of 1829, ch. 42, incorporated the defendant for the purpose of establishing and conducting a line of steamboats and stages or carriages between Baltimore and the several ports and places on the Rappahan- nock, and on the rivers and waters of the Chesapeake bay, for the convey- ance of passengers and transportation of merchandise and other articles The company entered into an obligation to aid in an improvement, the purpose of which was to open the Rappahannock river, and render it navigable to the basin in or near Fredericksburg. HELD That the proposed improvement being above the Virginia terminus of the route between which and Baltimore the boats were to run, for that reason was not within the authority conferred upon the com- pany by its charter. And even if it had been, between the termini, it would not have been within the powers granted by the act of in- corporation. 16. 8. It is well settled in this country, that the acts of a corporation, evidenced by a note written or unwritten, are as completely binding upon it, and as full authority to its agents as the most solemn acts done under the cor- porate seal, and that promises and engagements may as well be implied from its acts and the acts of its agents, as if it were an individual. Elysville Manuf. Co. vs. Okisko Company, 392. See AGENT, 2, 3. ATTORNEY. LIABILITY OF CORPORATIONS ON TRANSFERS OF THEIR STOCKS. FORFEITURE OF CHARTER. COUNTY COURTS. See CONCURRENT JURISDICTION, 2. CREDITORS. See MARRIAGE SETTLEMENT, 4. 560 INDEX. CREDITORS Continued. RESULTING TRUST, 3. RECORDING OF DEEDS. JUDGMENT CREDITORS. FOREIGN CREDITORS. CONVEYANCES, VACATING OF. DAMAGES FOR DETENTION OF DOWER. See JURISDICTION, 3. DECREE. See PRACTICE IN CHANCERY, 1, 37, to 40 and 48. DECREE FOR AN ACCOUNT. DECREE DORMANT FROM LAPSE OF TIME. DECREE FOR AN ACCOUNT. A decree for an account in a suit by one or more creditors against the execu- tors, either for themselves or on behalf of themselves and all other credi- tors, is for the benefit of all and in the nature of a judgment for all, and from the date of such decree an injunction will be granted upon motion of either party, and upon due disclosure of assets, to stay all proceedings of any creditor at law. Boyd &f Hance vs. Harris, 466. See INJUNCTION, 16. DECREE DORMANT FROM LAPSE OF TIME.- 1. The act of 1842, ch. 229, only provides a more summary and economi- cal remedy, when cases abate either before or after decree, by the death of parties, and does not embrace the case of a decree which has become dormant from lapse of time. Franklin vs. Franklin, 342. 2. The legal presumption, when the three years from the date of the decree have elapsed, is, that it has been executed 'or satisfied, and the appro- priate remedy is to revive it by a bill of revivor. Ib. DEEDS VOID UNDER THE INSOLVENT LAWS. 1. To avoid a deed under the acts of 1812, ch. 77, and 1816, ch. 121, it is necessary to show, not only that an undue and improper preference was given by the debtor, but also, that this was done with a view or under an expectation of taking the benefit of the insolvent laws. Glenn vs. Baker, 73. 2. Such intent may be established by facts and circumstances as in other cases, and the fact that a party, when he executed the deed, could not apply for the benefit of the insolvent laws, for want of the residence required to bring him within their provisions, is a strong circumstance to show that such was not his view and expectation at that time. Ib. 3. The facts of this case distinguished from those of Dulaney vs. Hoffman, 7 Gill Sf Johns., 170. Ib. 4. It has been settled by the highest authority in this state, that a debtor in failing circumstances, may prefer one creditor to another, by a trans- fer of his property made in good faith, and that in similar circum- stances, a transfer by a debtor of his whole estate to trustees for the benefit of all his creditors, is free from objection. Malcolm vs. Hall, 172. 5. Yet if such payment or transfer be made with a view, or under an ex- pectation of taking the benefit of the insolvent laws, and with an in- INDEX. 561 DEEDS VOID UNDER THE INSOLVENT LAWS Continued. tent thereby to give an undue and improper preference to such credi- tor, then such payment and transfer are void under the provisions of our insolvent system. 76. 6. The distinction recognised in England between voluntary or involuntary transfers, are applicable to our insolvent system, and to avoid such transfers for fraud upon that system, they must be shown to be volun- tary, as well as made with a view and under an expectation of taking the benefit of the insolvent laws. Ib. 1. The act of 1834, ch. 293, effected two alterations in the system, so far as the city and county of Baltimore are concerned. 1st, It invalidated the transfer whether made upon request or not. 2d, No such trans- fer could be made in favor of one creditor to the prejudice of the rest, if the debtor making it shall have no reasonable expectation of being exempted from liability or execution on account of his debts, without applying for the benefit of the insolvent laws. . Ib. 8. Yet under this act, there must be found in the transfer or assignment an intention to prefer one creditor over another ; or, notwithstanding the party had no reasonable expectation of escaping by a recourse to the insolvent laws for relief, the transfer or assignment will stand, and as the deed in this case made no such preference, it was held valid. Ib. DELIVERY OF POSSESSION. See PART PERFORMANCE, 5. DEMURRER. 1. Upon a demurrer to a bill, because it sought to compel the defendants to a disclosure of their titles. The title of the plaintiff not appearing to be at all dependent upon or connected with that of the defendant, the demurrer was ruled good. Cullis&nvs. Bossom, 95. 2. Allowing a demurrer to a whole bill, in strictness, puts it out of court, and no subsequent proceedings can be taken in the cause ; yet the court has sometimes permitted an amendment to the bill to be made. Ib. See DISCOVERY OF TITLE, 1, 3. PRACTICE IN CHANCERY, 5. DEVISE. See WILL AND TESTAMENT. DISCOVERY OF TITLE. 1. Upon a demurrer to a bill because it sought to compel the defendants to a disclosure of their titles, it was HELD That the right of a plaintiff in equity to the benefit of the defend- ant's oath, is limited to a discovery of such material facts as re- late to the plaintiff's case, and does not extend to a discovery of the manner in which, or the means by which, the defe: lant's case is to be established. Cullison vs. Bossom, 95. 2. Where there is a privity shown to exist between the title of the plaintiff and defendant, that privity may give him the right to call for an ex- posure of the defendant's title ; but unless such connection is shown, 562 INDEX. DISCOVERY OF TITLE Continued. he has no such right, whether the bill be for discovery only, or for discovery and relief. Ib. 3. The title of the plaintiffs not appearing to be at all dependent upon, or connected with, that of the defendant, the demurrer was ruled good. Ib. DOWER. 1. A lease for ninety-nine years, renewable for ever, is a^rnere chattel in- terest, and not an estate in lands from which dower can be claimed. Spangler vs. Sp angler, 36. 2. To make out a claim for dower, it is necessary to show that the husband was seized of an estate of inheritance, during coverture, of which any issue the wife might have had might by possibility have been heir. 16. 3. Leases containing covenants, on the part of the lessor to convey the fee simple to the lessees, when requested so to do, cannot be made to operate as a conveyance by lease and release at common law, and the estates which passed by such deeds of lease, were legal and not equit- able estates ; and consequently the act of 1818, ch. 193, extending the dower right to lands, held by equitable title in the husband, has no ap- plication. 16. 4. If the widow die without demanding her dower, her executor cannot recover the rents and profits, the cases having only gone to the extent of entertaining a bill for the profits where the widow dies pending her bill for dower. Kiddall vs. Trimble, 144. 5. Whilst the suit for rents and profits was depending in a court of law, the plaintiff voluntarily aliened the legal estate out of which the profits sprung, and the direction of the court to the jury being generally "that the plaintiff was not entitled to recover," it was HELD That the court may have been of opinion that, as the damages which are given for the detention of dower are regarded as consequential or accessory they could not be separately demanded. 16. 6. Had the action at law been for the dower itself, instead of being for the rents and profits of the land withheld from the widow, her alienation pending that suit, would have been an effectual bar to her recovery. Ib. 7. The title to the land itself must be first vindicated, before a claim for the fruits can be admitted, and a bill for the rents and profits would be premature until the dower itself is recovered. 16. 8. There can be no dou,bt that a wife, notwithstanding she joins her hus- band in a mortgage, may, nevertheless, take her dower in the land subject to the mortgage, and that she has a right to redeem, and may call upon the personal representatives of her deceased husband to ap- ply the personal assets to the extinguishment of the mortgage debt, so as to free her dower from the incumbrance. Mantz vs. Buchanan, 203. 9. It is equally clear, that if a wife, in Maryland, relinquishes her dower in lands mortgaged by her husband upon private examination, according to the acts of assembly upon the subject, and the lands are sold to sat- isfy the mortgage debt, whatever may be her right to a proportion of the proceeds of sale, she cannot, as against the purchaser, claim dower in the land. Ib- INDEX. 563 DOWER Continued. 10. The claim of a widow for dower, is a highly favored one, and with respect to a devise accepted by her in lieu of it, she is by the terms of the act of assembly, and by judicial decision, regarded as a purchaser for a fair consideration. Ib. 11. Where the widow had received an assignment of her dower in lands, by a court of competent jurisdiction, and the lands were subsequently sold under a decree to satisfy the mortgage debt, it was HELD That this assignment did not deprive her of the right to be provided for out of the remaining estate of her husband. 76. 12. The law intends to gives the widow one-third of the husband's real estate by way of dower, and as a provision for her support, but she takes it subject to liens created prior to the marriage, or to such as she consents to after the marriage, in the mode pointed out by the legislature, and she can take no more. Ib. 13. A partial failure of a devise to a widow who abides by the will, will not entitle her to compensation out of the residue of the estate, unless the failure is to such an extent as to make what she receives under the will, less in value than her legal share of her husband's estate. Thomas vs. Wood, 297. 14. When it is said in the act of 1798, ch. 101, sub. ch. 13, sec. 5, that a widow, standing by the will of her husband, is to be considered as a purchaser with a fair consideration, it cannot be meant, that she is so to be regarded, whatever may be the extent of the devise to her. Ib. 15. But the sound and just rule must be, that she is to be considered a pur- chaser of the devise, to the value of her share or legal right. Ib. 16. It having been decided that a widow was entitled to an allowance out of the proceeds of sale of partnership lands, in lieu of dower, and the husband having died in 1825, and the sale not having been made until 1845, it was HELD That the age of the widow of the death of her hus- band should be taken in fixing her allowance under the chancery rule. Goodburn vs. Stevens, 420. 17. The right of a widow to dower in partnership property, is suspended until the purposes of the partnership are accomplished by paying all claims against it, and adjusting the accounts. She cannot, therefore, claim rents and profits from the death of her husband. Ib. 18. Where a husband aliens land in his lifetime, in which the wife refuses to relinquish her dower right, in assigning the wife a compensation in money in lieu of her dower, the value of the land at the time of the death of the husband is to be regarded, and not its value at the time of the alienation, unless its increased value has arisen from the labor and money of the alienee. Bowie vs. Berry, 452. 19. The improved value of the land from which the widow is to be exclud- ed in the assignment of her dower, as against a purchaser from her husband, is that which has arisen from the active labor and money of the owner, and not that which has arisen from extrinsic or general causes. 16. 20. Where the husband holds only the equitable title and parts with it in his lifetime, the widow shall not be allowed dower. 76. 564 INDEX. DOWER Continued. 21. The interest of the widow is a continuation of the seizin of her hus- band, the seizin of the heir being defeated ab initio the moment the certainty of the estate to be held by her is ascertained by assignment. Childs vs. Smith, 483. 22. The commissioners divided an estate into eight parts, and assigned a third of each division to the widow as her dower. One lot consisted almost entirely of wood, the others of arable land. HELD That the widow was not bound to use each parcel, as if her husband had died seized only of the one lot, to which such parcel belonged, but might take from the wood lot, fuel and timber for the use of the cultivated lands. Ib. See JURISDICTION, 2, 3, 13. LAPSE OF TIME, 4. LIMITATIONS, STATUTE OF, 4. PARTNERSHIP AND PARTNERS, 2. ELECTION. 1. The degree of intention necessary to raise a case of election must plain- ly appear upon the face of the will, but the court is not to disregard what amounts to a moral certainty of the intention of the testator. Waters vs. Howard, 112. 2. Where the administratrix of a deceased partner filed a bill against the surviving partners, alleging that the business of the partnership had been carried on under the old name, and large profits made, and praying that her intestate's share of such profits might be paid over to her as administratrix, it was HELD That by such a proceeding she had elected to claim profits and not interest, and that a party cannot claim profits for one period and interest for another. Goodburn and wife vs. Stevens et al., 420. See EVIDENCE, 4. EMINENT DOMAIN. See CONSTITUTIONAL LAW, 5 to 10. ENROLLMENT OF DECREE. See PRACTICE IN CHANCERY, 1, 38. EQUITY AND EQUITABLE DEFENCE. 1. The defendants conveyed by deed a large amount of real and personal property to trustees, in trust to sell the same, and out of the proceeds to pay the claims of their creditors, without priority or preference, ex- cept as the same might^ exist at law. The trustees in execution of their trust, sold parcels thereof to the complainant and others. At the time this deed was executed, there were unsatisfied judgments to a large amount against the grantors, upon some of which, writs of scire facias were issued, and fiats rendered against the original defend- ants in the judgments, and the terretenants, the purchasers, from the trustees, and upon these Jiats writs of fieri facias were issued and laid upon the lands purchased by complainant. Upon a bill to restrain proceedings upon these executions, it was HELD INDEX. 565 EQUITY AND EQUITABLE DEFENCE Continued. 1. That if the judgment creditors assented to the deed of trust, and by their conduct induced the complainant, and others, to become purchasers of the land bound by their judgments, and to believe that they would look to the trustees for the payment of their claims, and not to their judgment liens, such conduct would furnish a valid equitable defence. 2. To allow the judgment creditors, after such a course of conduct, to enforce their judgments against the purchasers, would be to permit them to perpetrate a fraud upon the latter. Upon such a state of facts, the ,'purchasers would not be bound to see to the application of the purchase money. 3. A defence, founded upon such circumstances, can only be ren- dered available in a court of equity on the ground of fraud. DovJb vs. Barnes, 127. EVIDENCE. 1. It is an established rule of evidence in this state, that the answer of one defendant in chancery, is not evidence against the other defendants. Glenn vs. Baker, 73. 2. The answer of one defendant, when responsive to the bill, is evidence against the plaintiff in favor of the other defendants. 76. 3. Where the rights of the insolvent are identically the same, whether the decision passes one way or the other, he would be a competent witness for either party. Ib, 4. Though evidence dehm-sa. will, will not be admitted to prove or disprove the intention of a testator to raise a case of election, there can be no valid objection to such evidence to show the state and circumstances of the property. Waters vs. Howard, 112. 5. A party who has assigned a judgment without recourse, except as to his right to assign and transfer the same, is a competent witness for the assignee in a suit to enforce the judgment, the warranty extend- ing only to the right to make the assignment. Dmib vs. Barnes, 128. 6. As evidence of payment of a legacy due to a ward, the defendants relied upon a memorandum in the hand-writing of C., the husband of the ward, by which he charged himself with "amount of B's draft $500," (B. being the guardian.) The draft was not produced, and there was no proof of its payment, or on what account it was drawn. They fur- ther claimed a credit of $1500, being the amount of a check of B. on the Bank of Baltimore, payable to C., or bearer, which was paid by the bank, but to whom the money was paid did not appear. HELD That this evidence of payment, was wholly inconclusive and unsat- isfactory, and that it would be a departure from the rules estab- lished for the ascertainment of truth to give it the effect for which the defendants insist. Grain vs. Barnes ff Fergusson, 152. 7. Courts [of justice are not at liberty to indulge in wild, irrational conjectures, or licentious speculations, but must act upon fixed and settled rules. And it is far better that individuals should occasionally suffer, than that principles, which time and experience have shown VOL. i 48 566 INDEX. EVIDENCE Continued. to be essential to the ascertainment of truth, should be broken down or disregarded. Ib. 8. The rules of evidence in regard to explaining, or varying, or contradict- ing written evidence, are the same in courts of equity as in courts of law. Elysville Manufacturing Co. vs. Okisko Co., 392. 9. It was urged, that the defendants should be required to offer proof in support of some statements of the answer, though responsive to the bill; because such proof was within their reach, whilst it was inac- cessible to the complainants. HELD That the rule that the answer when responsive to the averments of the bill, shall be taken as true, unless discredited by two witnesses, or one witness with pregnant cir- cumstances, is not subject to the modification which the introduction of such a principle would involve. Thompson vs. Diffenderfer, 489. 10. Evidence of declarations, made by a husband during coverture, is not admissible against creditors of the husband to establish a secret parol agreement between him and the wife, in reference to property stand- ing in the husband's name during his lifetime. Brooks vs. Dent, 523. 11. Parol evidence is admissible to show, that an absolute conveyance was intended as a mortgage, and that the defeasance was omitted or de- stroyed by fraud or mistake. Bank of Westminster vs. WTiyte, 536. 12. But unless accident, fraud or mistake can be shown, or in cases of trusts, parol evidence cannot, either at law or in equity, be admitted to contradict, add to, or vary the terms of a will, deed or other instru- ment. 76. 13. It is competent to show the intention of the wife to charge her sepa- rate estate by parol evidence. Conn vs. Conn, 212. See AGENT, 1. SALES BY TRUSTEES, 11. PRACTICE IN CHANCERY, 26, 34, 35. EXCEPTIONS TO ANSWER. 1. Exceptions to an answer for insufficiency can only be sustained where . some material allegation, charge or interrogatory of the bill is not fully answered. West vs. Williams, 358. 2. The court must see by referring to the bill alone, in connection with the exceptions, that the precise matters as to which a further answer is sought, are stated in the bill, or that such an answer is called for by the interrogatories. >lb. 3. Exceptions to an answer, upon the ground that the defendant did not give a detailed account of the management of a trust fund, which came to his hands as agent, were overruled, because the bill only called upon him for an account of the business of the trust and not for an account of the business of the trust and agency. Ib. EXECUTED AGREEMENTS, CONTRACTS AND CONVEYANCES. See CONVEYANCES, VACATING OF, 1. CORPORATIONS, 5. EXECUTORS AND ADMINISTRATORS. See DOWER, 4. INDEX. 567 EXECUTORS AND ADMINISTRATORS Continued. See TRANSFER BY OPERATION OF LAW. COMMISSIONS, 1. EX POST FACTO LAWS. See CONSTITUTIONAL LAW, 2, 3. EXTINGUISHMENT OF DEBTS. 1. The taking of acceptances for a pre-existing debt cannot have the effect of extinguishing the debt. Harness vs. Chesapeake and Ohio Canal Com- pany, 249? FAMILY SETTLEMENT. See SURCHARGING AND FALSIFYING ACCOUNTS, 3. FOREIGN CREDITORS. 1. The rights of foreign creditors are not affected by the discharge of ail insolvent under the laws of Maryland. Potter vs. Kerr, 275. 2. A discharge under the insolvent laws of Maryland cannot affect the rights of foreign creditors to obtain against the insolvent, in the Mary- land courts, an absolute and unqualified judgment, and to place their execution upon any property of the insolvent debtor to be found in the hands of the trustee. Ib. FORFEITURE OF CHARTER. 1. A cause of forfeiture of a charter of incorporation cannot be taken ad- vantage of, collaterally or incidentally, but must be enforced by scire facias or quo warranto, at the instance of the government, and until the government so interferes, the franchise continues. Hamilton vs. Annap- olis and Elk Ridge Rail Road Company, 107. t See CORPORATIONS, 1. FRAUD. 1. A party who attempts to protect himself from the consequences of an engagement into which he has entered upon the plea that he has been imposed upon, must make out the imposition by proof. Duvall TS. Code, 168. 2. Fraud is not to be presumed, and though it may not be necessary to prove it by direct and positive testimony, yet the circumstances upon which the presumption of its existence is to be founded, should lead plainly and directly, and by strong implication, to that conclusion. Ib. 3. Deliberate settlements and solemn instruments are not to be impeached and overthrown by light and trivial circumstances, which, at most,, furnish a foundation for ingenious minds to speculate upon, and to weave plausible theories of unfairness in the transaction with which they are associated. Ib. See CONVEYANCES, VACATING OF. EQUITY AND EQUITABLE DEFENCE. FRAUDULENT CONVEYANCES, 1, 2. STATUTE OF FRAUDS. JURISDICTION, 15. FRAUDULENT CONVEYANCES. 1. It being proved, that the husband, with a design to deprive his widow of her share of his personal estate, executed the conveyances in ques- tion, but did not part with the possession, but lived upon and enjoyed 568 INDEX. FRAUDULENT CONVEYANCES Continued. the property until his death, the deeds were set aside as frauds upon the rights of the wife. Hays vs. Henry, 337. 2. One of the badges of fraud in such cases, is the retention of the posses- sion of the property by the husband, after the transfer of the title or keeping of the deeds in his hands after its execution. 16. FREE NEGROES. 1. Slaves manumitted since the act of 1831, ch. 281, cannot remain in this state in a condition of freedom, though the Orphans' Courts may, in their discretion, give them annual permits to remain, as by said act is provided. Negro Morico vs. Mitchell, 356. GENERAL INTENT. See WILL AND TESTAMENT, 13. GUARDIAN AND WARD. 1. A proceeding of the representatives of a ward against the executors of a guardian, to recover a legacy bequeathed to a ward, and which the guardian had received from the executors of the testator, who made the bequest, is clearly within the jurisdiction of a court of equity. Grain vs. Barnes and Fergusson, 151. 2. The relation of guardian and ward, and the rights and obligations which grow out of it, are peculiarly within the jurisdiction of a court of equi- ty, and its power to afford a remedy for a breach of the trust cannot be questioned, unless it has been taken away by some express statutory enactment. 16. 3. Every guardian, Ijowever, appointed, is responsible in equity for his conduct, and may be removed for misbehavior. 76. See JURISDICTION, 5, 6- HOLDERS OF NEGOTIABLE PAPER. See PROMISSORY NOTES. HUSBAND AND WIFE. 1. A husband and wife for a bona fide and valuable consideration, may contract for a transfer of property from him to her. Brooks vs. Dent, -, 523. 2. If the wife had performed her part of the agreement made between her husband and herself, she would have an equity as against the husband and his heirs, to have it carried into effect on their side, though the agreement was only by parol. Ib. INADEQUACY OF PRICE. 1. Where a sale is objected to on the ground of inadequacy of price, re- sulting from doubts about the title, which doubts could have been re- moved by reasonable efforts on the part of the trustee, his neglect to do so may affect the question of ratification. Gibbs vs. Cunningham, 44. 2. Inadequacy of price will not induce the court to vacate a sale, in other respects unexceptionable, unless such inadequacy is so gross as to in- dicate a want of reasonable judgment and discretion on the part of the trustee. 16. et Hintze vs. Stingel, 283. 3. The sale in this case was made for $3,000. HELD That an offer of $4,000 made subsequently to the sale, and after the value of the prop- INDEX. 569 INADEQUACY OF PRICE Continued. erty had been enhanced, could have but little weight in determining whether the property previously sold at a price so much below its value as to indicate a want of reasonable judgment in the trustee. Gibbs vs. Cunningham, 44. 4. But where any other just cause appears to doubt the propriety of the sale, it is a consideration very proper to be viewed, in connection with it, that the sale was made at a reduced price. Hintze vs. Stingel, 283. 5. It appearing that the defendant, who was a German, and imperfectly acquainted with our language, called upon the trustee a few days be- fore the sale, for information as to the day of sale, and that either the trustee incautiously misinformed him on the subject, or that he mis- understood the trustee, owing to his imperfect knowledge of the Eng- lish language, and that a bidder, who would give nearly twice the amount for which the property was struck off, was kept from attend- ing the sale, by the information which he received from the defend- ant, upon these circumstances and the concurrence of the complainant in the application, the sale was set aside. Ib. 6. Inadequacy of price may be so gross as to induce the court to set aside a conveyance actually made. Hollis vs. Hollis, 479. See SALES BY TRUSTEES, 3 to 5. INJUNCTION. 1. If a mortgagor in possession, is committing waste, equity will restrain him by injunction. Brown vs. Stewart, 87. 2. Where a mortgagee files a bill for the sale of the mortgaged property for the satisfaction of his debt then due, and alleges, that, it being in possession of the mortgagor, has been, or is about to be wasted ; or where it consists of personalty, is about to be removed beyond the the reach of the creditor, a court of equity has, and will, exercise the power of preventing the threatened mischief by injunction. 76. 3. When a motion to dissolve an injunction is heard on bill and answer, so much of the bill as is not denied by the answer, is taken for true, and if one of its material allegations remain unanswered, the injunction will be continued till the final hearing. Ib. 4. An injunction, unless issued after the decree, when it becomes a judi- cial process, can only be used for the purpose of prevention and pro- tection, and not for the purpose of commanding the defendant to undo anything he had previously done. Washington University of Baltimore vs. Green, 97. 5. The bill alleges that the buildings on the grounds in question, were used for the purpose of giving medical instruction, and as an infirmary for the sick, by the professors composing the medical faculty of the cor- poration, and prays that the defendant may be restrained from so act- ing as to interfere with their possession and use for that purpose, and that he be commanded to forbear from the repetition of the acts which impeded the enjoyment of the rights and the discharge of the duties on the part of the professors. HELD That an injunction of this description cannot be regarded as going 48* 570 INDEX. INJUNCTION Continued. beyond the legitimate office of the process, or as possessing the character of a judicial writ. Ib. 6. Where the material allegations of the bill are denied by the answer, the motion to dissolve must prevail, unless the bill can be supported by testimony taken under the act of 1835, ch. 380, sec. 8. 16. 7. All averments of the bill not denied by the answer, must, upon all ques- tions relating to the injunction, be regarded as true. Ib. 8. An injunction can only be dissolved by positive contradictory averments in the answer, and an answer founded on hearsay, is not sufficient to remove the complainant's equity, though resting upon information de- rived from others, it denies the Tacts out of which that equity arose. Dmih vs. Barnes, 127. 9. Upon motion to dissolve, credit can only be given to the answer, in so far as it speaks of responsive matters, within the personal knowledge of the defendant, and unless, so speaking, the equity of the bill is sworn away, the injunction cannot be dissolved. Ib. 10. The object of an injunction to stay proceedings at law, either before or after judgment, is to prevent the party against whom it issues, from availing himself of an unfair advantage, resulting from accident, mis- take, fraud or otherwise, and which would, therefore, be against con- science. Little vs. Price, 182. 11. If such unfair advantage has been already obtained by proceeding to judgment, the court will in like manner control the judgment, and re- store the party to his original rights. Ib. 12. This can only be done by depriving his adversary of every advantage which the judgment thus improperly obtained gives him, and cannot be limited merely to restraining him from proceeding upon it at law. 16. 13. Hence an injunction commanding and enjoining the complainant to cease from all proceedings on his judgment recovered at law, was held to operate to restrain him from proceeding in equity. 76. 14. It is well settled by the Maryland decisions, that chancery will never interfere with judgments at law, where the party's own default or ne- glect has made an application to the latter tribunal necessary. Ib. 15. When the company refuses or neglects to pay for the land condemned for their use, the owner has a right to call upon this court to protect by injunction his property from injury until the money is paid. Har- ness vs. Chesapeake and Ohio Canal Company, 249. 16. The power of this court to grant injunctions to restrain creditors from proceeding at law, after a decree for an account, is not confined to cases in which the application is made by the executor or administra- tor, but extends to applications made by the heir, or by another credi- tor, or a common legatee, or perhaps by a residuary legatee. Boyd Sf /fence vs. Harris, 466. 17. In order, however, to prevent abuse by conveyance between an execu- tor or administrator, and a friendly creditor, the practice is to grant an injunction only when the answer or affidavit of the executor or ad- INDEX. 571 INJUNCTION Continued. ministrator states the amount of assets, and upon the terms of bringing the assets into court, or obeying such other order of the court as the circumstances of the case may require. 76. See JURISDICTION, 8 to 12. LIMITATIONS, STATUTES OF, 5. MORTGAGOR AND MORTGAGEE, 4, 5. INSOLVENT LAWS. 1. To avoid a deed under the acts of 1812, ch. 77, and 1816, ch. 221, it is necessary to show, not only that an undue aud improper preference was given by the debtor, but also, that it was done with a view and under an expectation of taking the benefit of the insolvent laws. Glenn vs. Baker, 73. 2. Such intent may be established by facts and circumstances as in other cases, and the fact that a party, when Jie executed the deed, could not apply for the benefit of the insolvent laws, for want of the resi- dence required to bring him within their provisions, is a strong cir- cumstance to show that such was not his view and expectation at that time. Ib. See CONSTITUTIONAL LAW, 11. DEEDS VOID UNDER THE INSOLVENT LAWS. FOREIGN CREDITORS. INTEREST ON LEGACY. 1. Where no time is fixed by the will, for the payment of a legacy, it will bear interest from the expiration of one year after the death of the testator. Grain vs. Barnes &f Fergusson, 152. JUDGMENTS AT LAW. See INJUNCTION, 10 to 14. PRACTICE IN CHANCERY, 43. JUDGMENT CREDITORS. 1. A judgment creditor, not a party to a suit, is not bound to seek payment out of the proceeds of sales in the hands of the trustee, but may pros- ecute his lien against the property, after its conveyance to the purcha- ser. Duvall vs. Speed, 229. 2. Where a party holding a bond of conveyance is in possession, and has paid the purchase money for the land, the court will direct a convey- ance, which will prevail against creditors, whose judgments interven- ed between the equitable title of the bond and the legal title by the decree. Brooks vs. Dent, 523. See EQUITY AND EQUITABLE DEFENCE. JUDGMNET LIEN. JUDGMENT LIEN. 1. Where a party executing a deed made a formal proposition to his cred- itors, in writing, which some of them accepting, the trust was created, and upon a dividend being made, a creditor received from the trustees an equal share with the rest, such creditor must be considered as af- firming the deed, and of course bound by it. Doub vs. Barnes, 128. 2. But where a deed, in which all legal priorities were preserved, was ex- 572 INDEX. JUDGMENT LIEN Continued. ecu ted without any proposition made to creditors, or any previous consultation or agreement with them, a creditor by receiving money from the trustees in part payment of his judgment, does not thereby render the provisions of the deed binding upon him, nor waive the lien of his judgment. Ib. 3. A judgment rendered in one of the County Courts of this state, is not a lien upon lands lying in another county until the plaintiff, in the mode pointed out by the acts of 1794, ch. 54, and 1795, ch. 24, has transfer- red his judgment to such other county. Hayden vs. Stewart, 459. 4. Judgments when liens at all, are general liens upon all the lands of the defendant, continuing for twelve years, and fasten as well upon those lands which the defendant held at the time of their rendition, as upon those subsequently acquired. Ib. JURISDICTION. 1. The allegations of the bill are, that forty-six shares of the stock of the Manhattan Company of New York, were transferred to the defendant, Joseph White, in trust for the complainants, prior to the year 1839 ; that in January, 1840, said Joseph, by letter of attorney, empowered Campbell P. White to .sell and transfer said shares to the defendant, John C. White, which, in January and February of the same year, was accordingly done. That said defendant knew the stock was trust prop- erty, but had made no returns of the proceeds to complainants, though payment was duly demanded of him. The bill then prays that John C. White may account for the sales of said stock, and pay over the proceeds thereof, and for further relief. Upon the question of jurisdiction it was HELD ' That whether John C. White, the defendant, is himself to be regard- ed as the purchaser of the stock, or as agent to sell and account for the same to the plaintiffs, the remedy at law, is, in either as- pect, complete and ample, without the aid of a court of equity. White vs. White, 53. 2: There can be no doubt that where a husband died seized, a court of law has full power to compensate the widow, in damages for the detention of her dower, but a court of equity alone has power to give the widow damages for the detention of her dower as against the alienee of her husband. Kiddall vs. Trimble, 143. 3. The jurisdiction of courts of equity in cases of dower, is cpncurrent with that of courts of law, and if the legal title to dower be admitted or settled, equity will proceed to the assignment of the dower, and will also compensate the widow in damages for its detention. 76. 4. A proceeding by the representatives of a ward against the executors of a guardian, to recover a legacy bequeathed to the ward, and which the guardian had received from the executors of the testator who made the bequest, is clearly within the jurisdiction of a court of equity. Grain vs. Fergusson, 151. 5. The relation of guardian and ward, and the rights and obligations which grow out of it, are peculiarly within the jurisdiction of a court of INDEX. 573 JURISDICTION Continued. equity, and its power to afford a remedy for a breach of this trust cannot be questioned, unless it has been taken away by some express statutory enactment. 16. 6. Where the Court of Chancery has original jurisdiction, it is not depriv- ed of it because the courts of law, by statutory enactments, may have power over the same subject, when the enactments giving them authority contain no provisions depriving this court of its ancient ju- risdiction. Ib. 7. The Court of Chancery has no jurisdiction over a trustee acting under the decree of a court of concurrent jurisdiction. If such an authority were exercised by the co-ordinate equity tribunals of the state, the ut- most confusion and clashing of power would ensue. Snyder vs. Snyder, 295. 8. Courts of equity will interfere by injunction, even as against trespass- ers, if the acts done or threatened to be done to the property would be ruinous and irremediable. Georges Creek Coal and Iron Company vs. Delmold, 371. 9. But an injunction is not granted to restrain a mere transfer, where the injury is not irreparable and destructive to the plaintiff's estate, but is susceptible of a perfect pecuniary compensation, and for which the party may obtain adequate satisfaction in the ordinary course of law. Ib. 10. In the case of waste, where there is privity of title, as between tenants for life and the reversioner, it is not necessary for the plaintiff to show irreparable injury or destruction to the estate to entitle him to the remedy by|injunction. 16. 11. But as between strangers or parties claiming adversely, there is no dis- tinction between trespass and waste, and in both cases, the injury must be shown to be irreparable before this court will grant an in- junction. 76. 12. It is conclusively settled, that a court of equity may interfere by in- junction to prevent the commission of waste. Childs vs. Smith, 483. 13. The objection to the jurisdiction of the Court of Chancery to stay waste committed by adowress on her dower lands, upon the ground that the remedy should be sought on the equity side of the County Court where the proceedings for partition were had, would apply with equal force to every application to enjoin proceedings upon judgments and suits at law in the County Courts, and is, therefore, untenable. 76. 14. In the case of misrepresentation, if facts, whether made with a know- ledge of their untruth, and with intent to defraud, or made inadvertently by mutual mistake of parties, or by mistake of either of them, if the other has been prejudiced thereby, a court of equity has jurisdiction and will set aside the contract and declare it a nullity. Tbyinon vs. Mitchell, 497. 15. A court of equity has concurrent jurisdiction with courts of law in all cases of fraud and damage, and it makes no difference that the sale sought to be rescinded on the ground of fraud, was a sale of personal property. 16. 574 INDEX. JURISDICTION Continued. See APPEAL, 5. CONCURRENT JURISDICTION. . . GUARDIAN AND WARD. PRACTICE IN CHANCERY, 28. LIMITATIONS, STATUTE OF, 2. LANDLORD AND TENANT. See CONSTITUTION OF STATUTES, 3. LAPSE OF TIME. 1. A decree or order, after delay or lapse of time cannot be set aside, ex- cept upon very strong grounds. Barry vs. Barry, 20. 2. The order sought to be set aside, was passed on the 18th of November, 1844, and no objection is made until August, 1846. HELD That upon the ground of delay alone, there would be great difficulty in granting re- lief against the order, even if the merits were with the petitioner. Ib. 3. A proceeding against an innocent purchaser, to set aside a patent, forty- seven years after its date, and forty-five years after the patentee had sold and conveyed the land to such purchaser, cannot receive the countenance of a court of equity. Buckingham vs. Dorsey, 31. 4. The statute of limitations does not apply to the wife's remedy by action, for her dower, though it does not follow, that lapse of time may not operate as a bar to a bill for an account. Kiddall vs. Trimble, 144. LEASES. 1. A lease for ninety-nine years, renewable forever, is a mere chattel in- terest, and not such an estate in lands, from which dower can be claimed. Spangler vs. Stanler, 36. 2. Leases containing covenants, on the part of the lessor, to convey the fee simple to the lessee, when requested so to do, cannot be made to operate as a conveyance by lease and re-lease at common law. Ib. See DOWER, 1. 3. LEGACY. See INTEREST ON LEGACY. WILL AND TESTAMENT, 9. LIABILITY OF CORPORATIONS ON TRANSFERS OF THEIR STOCK. 1. If there be no fraud or collusion, the bank and not the transferree must abide the loss, if a loss be sustained by any act of the proper officer of the bank, in the transfer of its stock, arising either from a miscon- ception of his duty or a want of judgment. Albert and wife vs. Sav- ings ' Bank, 407. 2. Where the entry on the transfer book, displays the origin, nature, and character of the trust, and who were the beneficiaries, it was HELD That the bank had notice of the trusts witn vhich the stock was clothed and would be responsible if it permitted a transfer to be made by other persons than the trustees, who alone were authorized to make it. 16. 3. In such case, if the trustees themselves should offer to transfer, under circumstances calculated to excite suspicion that they were about to abuse their trust, the bank would be bound to institute the necessary INDEX. 575 LIABILITY OF CORPORATIONS, &c. Continued. inquiry, and if it omitted to do so, and loss resulted, the loss would be thrown upon it. Ib. 4. Where a party transfers stock as "executor," the bank must know that there is a will, of which, in Maryland, it is bound to take notice. But where the entry upon the books of a corporation only showed that the stock stood in the name of certain persons as trustees, without show- ing who were the cestui que trusts, or what the nature of the trust was. It was HELD That this entry standing by itself was not sufficient to put the corporation upon the inquiry, and to make it responsible on the ground of negligence. Ib. See NOTICE op TRUST. LIEN. See JUDGMENT LIEN. MECHANICS' LIEN. SEAMAN'S WAGES. SPECIFIC PERFORMANCE, 8. ATTORNEY, 1. LIFE INSURANCE POLICY. See ASSIGNMENT, 1. LIMITATIONS, STATUTE OF. 1. The transactions out of which the claim arose, occurring early in 1840, and the bill not having been filed until January, 1846, the statute of limitations was held to be a flat bar to the plaintiff's right to recover. White vs. White, 53. 2. The statute of limitations does not apply to a purely technical trust, of which a Court of Chancery has exclusive jurisdiction. Ib. 3. If the relation of trustee and cestui qui trust once existed between these parties, the relation terminated as soon as the stock was sold, and the obligation to pay over the proceeds supervened, and then the right of action accrued, and limitations began to run. Ib. 4. The statute of limitations does not apply to the wife's remedy by action for her dower, though it does not follow that lapse of time may not operate as a bar to a bill for an account. Kiddall vs. Trimble, 144. 5. The running of the act of limitations is suspended by an injunction. Little vs. Price, 182. 6. When limitations are relied upon, the defence avails only in favor of the parties who set it up. Dixon vs. Dixon, 271. See LAPSE OF TIME, 4. MACHINERY. See MECHANICS' LIEN, 4. MANUMISSION. 1. The whole of the testator's property, will, in equity, be charged with the payment of his debts, in favor of his manumitted slaves, and in a ju- dicial proceeding to determine the invalidity of a deed of manumission as being in prejudice of creditors, the negro manumitted is entitled to the assistance of the heir at law, or the person holding the real estate, in taking an account of the amount thereof, before the insolvency of 576 INDEX. MANUMISSION Continued. the deceased manumittor can be legally ascertained. Thomas vs. Wood, 297. 2. With regard to the manumittor himself and his legal representatives, the manumission, though in prejudice of creditors, is valid, and the negroes manumitted are not assets for the payment of debts. 16. MARITAL RIGHTS. See MARRIAGE SETTLEMENT. MARRIAGE SETTLEMENT. 1. By a marriage settlement, the property of the wife was conveyed to trustees for the benefit of the wife during coverture, free from the con- trol, and not liable for the debts of [her husband, with power to the wife to dispose of the same, either by last will and testament, in writ- ing, or by any other writing, signed by her hand, in the presence of two witnesses. The wife died without making any disposition whatever of the property, it was HELD That the contract did nothing more than suspend the marital rights of the husband during the life of the wife, and upon her death the property remained precisely in the same condition it would have been in, if no such power of appointment had been created, and consequently the rights of the husband revived upon her death. Jones 8f White vs. Brown et al., 191. 2. When it is intended, in a marriage settlement, to exclude the rights of the husband to the personal property of the wife, in the event of his surviving her, and in default of her appointment, an express provision to that effect should be inserted. 16. 3. When the settlement makes no disposition of the property in the event of the wife's death, and provides only for her dominion over it during coverture, the right of the husband as survivor, is a fixed and stable right, over which the court has no control and of which he cannot be divested. 76. 4. A settlement upon the wife after marriage, in pursuance of a valid agreement before marriage, is good and binding against the creditors of the husband. Brooks vs. Dent, 523. See TRUSTEES, THEIR DUTIES AND POWERS, 3. MARRIED WOMEN, CHARGING SEPARATE ESTATE OF, &c. Before the separate estate of a married woman can be charged for her en- gagements, it must be shown that her contract was made with direct reference to such separate estate ; and she is not to be regarded with respect to such estate as a feme sole, to all intents and purposes, and bound by any form of contract into which she may please to enter, whether made with reference to such estate or not. Conn vs. Conn, 212. MARSHALING ASSETS. In marshaling assets, lands descended are to be applied before lands de- vised. Brooks vs. Dent, 523. INDEX. 577 MECHANICS' LIEN. 1. The law relating to the lien of mechanics and others upon buildings, only prefers such lien to every other lien or incumbrance, which at- tached upon the building subsequent to the commencement of the same. Jones vs. Hancock, 187. 2. If there be liens on the property prior to the commencement of the build- ing upon which the work is done, or for which the materials are found, the lien for work and materials must be postponed to such prior in- cumbrance. 76. 188. 3. The act of 1845, ch. 287, sec. 4, gives no right to a party to enforce this lien upon the proceeds of sales of machinery. Ib. 4. Though a party having a lien on a building, for work and materials, may come into a court of law or equity for his share of the proceeds of a sale made under its authority, no such right is given when such pro- ceeds arise from the sale of machinery. 76. MERGER. 1. If the inquisition of the jury when returned to, and affirmed by, the court, under the act of 1824, ch. 79, sec. 15, constitutes a debt at all, it is a debt of record, and of an equal grade with a judgment, and, therefore, not merged by it. Harness vs. Chesapeake and Ohio Canal Co., 248. MIS JOINDER OF PLAINTIFFS. See PRACTICE IN CHANCERY, 13. MISTAKE. 1. Before a party can be relieved in the case of a written contract upon the ground of mistake, the evidence of mistake must be clear and sat- isfactory, and if any reasonable doubt can be entertained on the sub- ject, relief will be refused. Goldsborough vs. Ringgold, 239. 2. The mistake sought to be rectified, was in regard to the number of acres sold under the decree. The only evidence was found in a survey or- dered by the court, upon the exparte application of the petitioner, which differed from the survey according to which the land was sold. It was HELD That this evidence was not sufficient to overthrow the contract on the ground of mistake. 76. See JURISDICTION, 14. MORTGAGE. 1. A bill of sale though absolute in its terms, is, in equity, considered as a mortgage whenever the object is to secure the payment of a debt, and not to transfer the title to the party to whom the conveyance is made. Clark vs. Levering, 178. 2. A mortgage debt must be paid out of the personal estate of the mort- gagor, and if that is not adequate, then the balance should be paid out of that portion of the real estate contained in the mortgage. Goodburn vs. Stevens, 420. 3. No matter how absolute a conveyance may be on its face, if the inten- tion is to take a security for a subsisting debt, or for money lent, the transaction will be regarded as a mortgage and will be treated as such. Bank qf Westminster vs. White, 536. VOL. I 49 578 INDEX. MORTGAGE Continued. See MORTGAGOR AND MORTGAGEE. ASSIGNMENT, 3, 4. MORTGAGEE AND MORTGAGOR. 1. In Maryland, unless there is some agreement of the parties to the con- trary, the mortgagee is entitled to the possession of the property, im- mediately upon the execution of the mortgage, without regard to whether there has been a forfeiture or not. Brown vs. Stewart, 87. 2. But because the mortgagee may take possession of the property, or re- cover it by an action of replevin, he is not, on this account, precluded from the right of having it protected in a court of equity. Ib. 3. The case of a mortgage forms an exception to the general rule that a party shall not be allowed to sue at law and in equity for the same debt, and a mortgagee may pursue all his remedies at once, yet he is under no obligation to do so. Ib. 4. If a mortgagor is in possession committing waste, equity will restrain him by injunction. 76. 5. Where a mortgagee files a bill for the sale of the mortgaged property, for the satisfaction of the debt then due, and alleges that it being in the possession of the mortgagor, has been, or is about to be, wasted ; or where it consists of personalty, is about to be removed beyond the reach of the creditor, a court of equity has, and will, exercise the power of preventing the threatened mischief by injunction. Ib. 6. When mortgaged property has been turned into money, the rights of the mortgagee remain unaltered by the conversion, and he has a right to have the money applied to the payment of his claim. 76. 7. Whoever may be the holder of the debt intended to be secured by the mortgage, will be considered in equity as the owner of the mortgage itself. Clark vs. Levering, 178. 8. A mortgagee having given notice to the tenants holding the mortgaged premises under leases granted by the mortgagor, either before or after the date of the mortgage, is entitled to receive from the tenants, the rents in arrear at the time of the notice, as well as those which accrue afterwards. Clark vs. Abbott, 474. MULTIFARIOUSNESS. See PRACTICE IN CHANCERY, 12. MUTUALITY. See SPECIFIC PERFORMANCE, 3, 4, 12. NOTICE. See PARTITION, 6. NOTICE OF TRUST. NOTICE OF TRUST. 1. Where the entry, on the transfer book of a bank, displayed the origin, nature and character of the trust, and who were the beneficiaries, it was HELD That the bank had notice of the trusts with which the stock was clothed, and would be responsible, if it permitted a transfer to be made by any other persons than the trustees, who alone were authorized to make it. Albert and wife vs. Savings Bank, 407. INDEX. 579 NOTICE OF TRUSTS Continued. 2. In such case, if the trustees themselves should offer to transfer, under circumstances calculated to excite suspicion that they were about to abuse their trust, the bank would be bound to institute the necessary inquiry, and if it omitted to do so, and loss resulted, the loss would be thrown upon it. 76. 3. Where a party transfers stock as "executor," the bank must know that there is a will, of which, in Maryland, it is bound to take notice. But where the entry upon the books of a corporation only showed that the stock stood in the name of certain persons, as trustees, without showing who were the certuis que trusts, or what the nature of the trust was, it was HELD That this entry, standing by itself, was not suf- ficient to put the corporation upon the inquiry, and to make it respon- sible on the ground of negligence. Ib. See PURCHASERS, 3. NOTICE OF A WILL. See LIABILITY OF CORPORATIONS ON TRANSFERS OF THEIR STOCK, 4. OBJECTIONS TO SALES. See SALES OF TRUSTEES, 13. OBLIGOR AND OBLIGEE. See ASSIGNMENT, 2. CONTRIBUTION AMONG JOINT OBLIGORS. OWNERS OF VESSELS, THEIR LIABILITY FOR SUPPLIES. 1. The owner is liable for the necessary supplies for the vessel furnished by order of the master, and if he seeks to escape such liability, he must show, by satisfactory proof, that the credit was given to others. Abbott vs. Steam Packet Co., 542. 2. If the owner can make out, by evidence, that the credit was given to the master alone for such supplies, if it appears that there was a spe- cial promise taken from him and relied upon, the owner will not be liable. Ib. PAROL AGREEMENT RESPECTING LANDS. See PART PERFORMANCE, 9, 10. PAROL EVIDENCE TO CONTRADICT A RECEIPT IN A DEED. It is the undisputed law of this state that a receipt in a deed acknow- ledging the payment of the consideration money, is only prima fade proof, and may be contradicted or explained by parol evidence. Elys- ville Manufacturing Co. vs. Okisko Co., 392. PAROL PROOF. See EVIDENCE, 11 to 13. HUSBAND AND WIFE, 2. PARTIES TO SUITS. See PRACTICE IN CHANCERY, 20, 25. PARTITION. 1. An objection to a return made upon a commission to make partition, that the commissioners did not distribute the estate by lot, but at their own discretion assigned their several shares to the parties interested, cannot be sustained either by the practice of the court, the act of as- sembly, or the rule of the English Court of Chancery in similar cases Cecil vs. Dorsey, 223. 580 INDEX. PARTITION Continued. 2. When partition is made by agreement of parties, one of the modes known to the common law, is, by drawing lots, but there is no authori- ty for saying, that when a compulsory partition is made by judicial process, recourse must be had to lots to determine the portion which each party is to take. Ib. 3. The legislature did not mean to confine the commissioners to a particu- lar mode of making the partition, they may, if they please, award to each of the parties his share of the thing to be divided, or they may at the proper stage of the proceedings draw lots, and their return, other- wise unexceptionable , will not be set aside because they have adopted either of these modes. Lb. 4. It is a fatal objection to the return, that the value of the estate, in money, has not been stated by the commissioners. Ib. 5. The clause directing the commissioners to take evidence, should be added to the form of the commission. Ib. 6. The act of assembly requiring thirty days notice of the execution of the commission to be given, is not complied with, by stating, in the return, that reasonable notice was given, but the commissioners must say, in their return, either that they gave thirty days notice, or due notice according to law. 76. PARTNERSHIP AND PARTNERS. 1. When one of several partners dies, if the surviving partners continue the trade or business, it is at their own risk, and they will be liable, at the option of the deceased partners, to account for the profits made thereby, or to be charged with interest on the deceased partner's share of the surplus, besides bearing all losses. Goodburn and wi/evs. Ste- vens, 420. 2. The real estate of a partnership, though regarded in a court of equity as personal estate for all partnership purposes, yet, in the absence of an express or implied agreement indicating an intention to convert it into personal estate, will, when the claims against the partnership have been satisfied, and the partnership accounts adjusted, be treated in a court of equity as at law, as real estate, and be subject to the dower of the widow of a deceased partner. 76. 3. By one of the articles of a partnership agreement, a partner bound him- self "not to take out of the business or stock in trade" of the partner- ship "more than seven hundred dollars per annum, in goods or money, or both." HELD That this article could not be construed as an agreement that this partner should have a salary of seven hundred dollars in consider- ation of his giving his attention to the business of the firm. Balt- zel vs. Trump, 517. 4. That by this article he was restricted from taking more than seven hun- dred dollars, but he might take less, and if he should take less, he would not be entitled to have the difference made up, upon the expi- ration of the partnership. Ib. See DOWER, 17. ELECTION, 2. INDEX. 581 PART PERFORMANCE. 1. There can be no doubt that if a party has succeeded in proving a con- tract, and in showing that it has been in part performed, he is entitled to have it specifically executed. Owings vs. Baldwin 8f Wheeler, 120. 2. This right is founded, not upon the notion that part performance is a compliance with the statute of frauds, but upon the ground that it takes the case entirely out of the statute. Ib. 3. In order to take a case out of the statute, on the ground of part per- formance, the plaintiff must make out by clear and satisfactory proof, the existence of the contract as laid in the bill, and the act of part performance must be of the identical contract set up. Ib. Beard vs. Linthicum, 345. 4. It is not enough that the act is evidence of some agreement, but it must be unequivocal and satisfactory evidence of the particular agreement charged in the bill. Beard vs. Linthicum, 345. 5. Where delivery of possession is relied upon, it is indispensable that such delivery to, and taking possession by, the defendant, is referrible to the contract alleged in the bill, and not to a distinct or different title. B>. ' 6. To take a parol agreement out of the statute of frauds, on the ground of part performance, the acts done in part performance must not only be referrible exclusively to the contract setup in the bill, but the contract itself must be established by evidence, clear, definite and unequivocal in its terms. Shepherd vs. Shepherd, 244. 7. The party must show acts unequivocally referring to and resulting from the agreement set up, such as the party would not have done unless on account of that very agreement, and with a view to its performance ; and the agreement set up, must appear to be the same with the one partly performed. Ib. 8. The Chancellor refused to decree the execution of the contract set up in this case, because there was a want of the essential element of un- equivocal certainty in the agreement, and in the acts relied upon as part performance. Ib. 9. The ground upon which a court of equity decrees the specific perform- ance of a parol agreement respecting lands, is, that in case of a clear part performance by one party, it would be a fraud in the other to re- fuse to perform the agreement on his part. It would be perverting the statute from a shield against, into an instrument of, fraud. Small vs. Owings, 363. 10. When acts of part performance are relied upon to take a parol agree- ment for the sale of lands (when denied by the answer) out of the operation of the statute of frauds, full and satisfactory evidence must be offered of the terms of the agreement, and of the performance of it on the part of the complainant. Ib. See PRACTICE IN CHANCERY, 23. PATENTS. 1. A warrant of resurvey does not authorize a party to include a vacancy not contiguous to the tract or tracts to be resurveyed. And a person who has not a title to the land on which he obtains a warrant of re- 49* 582 INDEX. PATENTS Continued. survey, does not, in virtue of such warrant, acquire a right of pre- emption in the adjoining vacancy. Buckingham vs. Dorsey, 31. 2. Yet patents obtained by a party who has no legal title to the original, or upon a certificate of resurvey, including vacancy not contiguous to the original, will not be vacated, except for fraud, in fact, alleged and proved, though upon a caveat filed in the land office, they would have been refused . Ib. PAYMENTS. See EVIDENCE, 6. APPLICATION OF PAYMENTS, 1 to 4. PERSONAL PROPERTY. See SPECIFIC PERFORMANCE, 8 to 10. WOOD CUT NOT REALTY. PETITION. See CHANCERY PRA.CTICE, 3, 39, 45. PLEADINGS. 1. The principles that regulate equity pleadings will admit a different in- terpretation to be put upon a particular sentence than would be re- quired by grammatical rule. Small vs. Oivings, 363. 2. The complainant cannot rely upon the admissions of the answer, and obtain relief upon those admissions unless he has set them out in his bill. 76. 3. A complainant in his bill must put in issue whatever he intends proving, otherwise the evidence will be excluded. The Court of Chancery de- crees only secundum allegata et probata. Ib. See PRACTICE IN CHANCERY. POSTHUMOUS CHILDREN. 1. Courts of equity will use all possible ingenuity to construe testamentary expressions in such a manner as to include all children living at the testator's death, and a child inventre sa mere, is considered as living at that time. Conn vs. Conn, 212. 2. When the testator stands in the relation of parent to the legatees, a court of equity will lay hold of any general expression which will in- clude all the children, though it may be apparent from the context that only children in existence when the will was made, were within the contemplation of the testator. Ib. 3. Yet when it is evident that the testator really forgot that other children might be born to him, and has, upon the face of the instrument, made provision for only such as were living at the date of the will, it is im- possible to supply the defect, and give such after born children any provision, notwithstanding the anxiety of the court to do so. Ib. 4. Where the testator has described the children by name, among whom the estate is to be divided, upon the happening of a contingency, it is im- possible to bring a posthumous child within the description. Ib. POUNDAGE FEES. 1. As a general rule, the defendant, and not the plaintiff, is answerable for poundage fees. Gilmor vs. Brien, 40. INDEX. 583 POUNDAGE FEES Continued. 2. If an execution issue irregularly, that being the act of the plaintiff, he, and not the defendant, will be liable to the sheriff for poundage fees, but if an execution be stayed by injunction, the defendant is liable. Ib. 3. The claim of a sheriff for poundage fees is a legal, and not an equitable, claim, and its payment must be enforced by a proceeding at law. Ib. 4. An agreement by an assignee of certain judgments, to pay all legal costs arising thereon, was held not to impose an obligation on him to pay poundage fees. 76. PRACTICE IN CHANCERY. 1. The enrollment of a decree obtained by surprise, may be vacated either upon a bill or petition. Barry vs. Barry, 20. 2. Where a case is set down for hearing on bill and answer, all the aver- ments of the latter, whether responsive or not, to the allegations of the bill, are taken to be true. Wheeler's Estate, 80. 3. The case of a mortgage forms an exception to the general rule, that a party shall not be allowed to sue at law and in equity for the same debt, and a mortgagee may pursue all his remedies at once, yet he is under no obligation to do so. Brown vs. Stewart, 87. 4. When a motion to dissolve an injunction is heard on bill and answer, so much of the bill as is not denied by the answer, is taken for true ; and if any one of its material allegations remains unanswered, the injunction will be continued till the final hearing. Ib. 5. Allowing a demurrer to a whole bill, in strictness, puts it out of court, and no subsequent proceedings can be taken in the cause. Yet the court has sometimes permitted an amendment of the bill to be made. Cullison vs. Bossom, 95. 6. Where the material allegations of the bill are denied by the answer, the motion to dissolve must prevail, unless the bill can be supported by tes- timony taken under the act of 1835, ch. 380, sec. 8. Washington Uni- versity of Baltimore vs. Green, 97. 7. All averments of the bill not denied by the answer, must, upon all ques- tions relating to the injunction, be regarded as true. Ib. 8. After the injunction was dissolved, the defendant filed a petition, stating that the complainants, in pursuance of the injunction, had taken posses- sion of the property, to which the defendant yielded, and praying that an order may be passed restoring the possession to the defendant. HELD That, if the defendant has surrendered a possession previously held by him, he has done that which the Court, by its injunction, did not command him to do, and for which he has no right to ask for redress at its hands, and that the petition should be dismissed. Ib. 9. An injunction can only be dissolved by positive contradictory averments in the answer, and an answer founded upon hearsay is not sufficient to remove the complainant's equity, though, resting upon information de- rived from others, it denies the facts out of which that equity arose. Doub vs. Barnes, 127. 584 INDEX. PRACTICE IN CHANCERY Continued. 10. Upon motion to dissolve, credit can only be given to the answer, in so far as it speaks of responsive matters, within the personal knowledge of the defendant, and unless so speaking, the equity of the bill is sworn away, the injunction cannot be dissolved. 76. 11. Although an answer founded upon hearsay is not to be treated as an an- swer resting upon personal knowledge, it is sufficient to put the com- plainant upon proof of the averments of his bill. Ib. 12. Where an original and amended bill merely unite two causes of complaint growing out of the same transaction, affecting the same question of right, being the right of the complainant to relief against the judgment of the defendant, they cannot be regarded as obnoxious to the objection of multifariousness. 16. 13. It is too late to urge the objection of misjoinder of plaintiffs, when the case is ready for decision upon its merits, when there is no demurrer and the answer takes no such defence. Grain vs. Barnes Sf Fergusson, 151. 14. Courts of equity are not subject to those strict technical rules which, in other courts, are sometimes found in the way and difficult to surmount. The remedies here are moulded so as to reach the real merits of the con- troversy, and justice will not be suffered to be entangled in a web of tech- nicalities. 16. 15. The omission of the prayer for the specific relief, is no reason why, under the general prayer, the complainants may not have such relief as the case alleged and proved may entitle them to. 16. 16. The only limitation upon the power of the court to grant relief under the general prayer, is, that it must be agreeable to the case made by the bill, and not different from or inconsistent with it. 16. 17. It is a fatal objection to the return of a commission to make partition, that the value of the estate in writing, has not been stated by the com- missioners. Cecil vs. Dorsey, 223. 18. The clause directing the commissioners to take evidence, should be added to the form of the commission. 16. 19. The act of assembly requiring thirty days notice to be given of the exe- cution of the commission, is not complied with, by stating in the return that reasonable notice was given ; but the conmmissioners must say in their return, either that they gave at least thirty days notice, or due notice according to law. 16. 20. The fact that the trustee of an insolvent debtor was a party to the suit, does not dispense with the necessity of making the creditors themselves parties. Duvall vs. Speed, 229. 21. Where a claim has been submitted to, and adjudicated upon by the court, and finally rejected through the negligence of its owner. He will not be allowed to re-open the judgment of the court, and ask for and obtain a re-hearing upon additional proof. Dixon vs. Dixon, 271. 22. But where no adjudication has been had upon the claim, and the fund for distribution remains in court, equity requires that the new proof should be considered, and if found sufficient to remove the objection to it, the claim should be allowed. Ib. INDEX 585 PRACTICE IN CHANCERY Continued. 23. When funds are in this court for distribution among creditors, and the Auditor reports that certain claims have not been proved, or objec- tions for want of proof are made to their allowance by parties inter- ested, the case is again referred to the Auditor, with directions to state a final account, from which all claims, not then sufficiently proved, are to be excluded, and leave is given to supply the proof upon such terms, as to notices, as may be deemed reasonable. Upon the coming in of the report of the Auditor, made pursuant to this order, and after the usual time given for filing exceptions, the report may be submitted for ratification, and when ratified, all parties are concluded and the liti- gation terminated. Ib. 24. This is the general rule, but there may be cases in which it would and ought to be relaxed, when the party seeking relief can show himself free from blame or negligence. Ib. 25. Trustees under a deed, one of the trusts of which was, that after satis- fying the purposes of the deed, viz. the payment of the debts of the grantor, the residue of the property should be held for the use of the grantor, were appointed his trustees under the insolvent laws, and acting in this double capacity, transferred certain stocks belonging to the grantor (the complainant) to the defendant. All his debts hav- ing been paid and the trustees directed by a decree of this court to convey to him all the property they had not disposed of in performance of their duty as trustees in insolvency : it was HELD That the complainant was entitled to maintain a bill in equity for the recovery of the stock from the defendant, upon the ground, that the transfer had been improperly obtained, and that the trus- tees were not necessary parties to such suit. Williams vs. Savage Manufacturing Company, 306. 26. A party being elected to examine witnesses upon their volr dire, is pre- cluded from resorting to any other mode to show their interest in the event of the suit. Ib. 27. The legal presumption, when the three years from the date of the de- cree have elapsed, is, that it has been executed or satisfied, and the ap- propriate remedy is, to revive it by bill of revivor. Franklin vs. Frank- lin, 342. 28. The appearance of the defendants to the bill, and their submitting to answer it, would be a waiver of any objection to the jurisdiction of the court. Brooks vs. Delaplaine, 351. 29. Where a party sets up an agreement in his bill, involved under the stat- ute of frauds, and the defendant, by his answer, denies the agreement, it is not, perhaps, necessary for him to insist upon the statute as above, but the complainant, at the hearing, must establish the agreement by written evidence. Small vs. Orcings, 363. 30. If the defendant admits, in his answer, the parol agreement, without in- sisting on the statute, the court will decree a specific performance, upon the ground, that the defendant has thereby renounced the bene- fit of the statute. Ib. 586 INDEX. PRACTICE IN CHANCERY Continued. 31. The complainant cannot rely upon the admissions of the answer, and obtain relief upon those admissions, unless he has set them out in his bill. Ib. 32. A complainant in his bill cannot put in issue whatever he intends prov- ing, otherwise the evidence will be excluded. The Court of Chan- cery decrees only secundum allegata et probata. Ib. 33. There being no allegation in the bill of part performance, the evidence seeking to establish, it was excluded. 76. 34. When a deed is rendered inoperative and void, by disproving the con- sideration expressed in it, evidence of a different consideration will not be received to set it up. Elysville Manuf. Co. vs. Okisko Co., 392. 35. But, where a party maintains the validity of a deed, and seeks, upon the allegation that the consideration money has not been paid, to en- force its payment by the assertion of the vendor's lien, evidence may be admitted to prove, that he has been satisfied for the purchase money, by receiving something else as an equivalent therefor. Ib. 36. When a court of equity has control of both personal and real estate, it will, in order to prevent circuity, and save expense and delay, ap- ply them in the order in which, as between the heir and executor, they are liable. Goodburn vs. Stevens, 420. 37. A decree is considered as enrolled, when signed by the Chancellor, filed by the Register, and the term elapsed at which it was made, and such decree cannot be reheard upon petition. Pfeltz vs. Pfeltz, 455. 38. Every decree stands, and must be all owned to stand, for what it pur- ports to be on its face, until it has been revised or reversed, in a proper and solemn manner. 76. 39. A decree passed for the sale of property for the purpose of partition among the parties to the cause. After enrollment of this decree, a petition was filed by one of the parties, setting up an exclusive right to the whole proceeds of sale. HELD That as the decree contained no reservation of equities, or for further directions, it was of course final upon the rights of the parties, and that this court upon such petition had no more power to change the rights thus settled, than it would have to open the en- rollment and vacate the decree. Ib. 40. When a decree is obtained and enrolled, though on a bill taken pro confisso, it cannot be reheard on petition, and the remedy of the party grieved, is by a bill to set aside the decree for fraud, or a bill of re- view, which only lies against those, who were parties to the original bill. 16. 41. A bill of review founded on new matter discovered since the decree, cannot be filed without leave, and the granting of this leave, is left to the sound discretion of the court, arising out of the circumstances of each case. Ib. 42. The limitation of time as to appeals from the decrees of the court, applies to the right of filing bills of review, and such a bill filed nine months after the date of the decree, comes too late. Ib. INDEX. 587 PRACTICE IN CHANCERY Continued. 43. Where judgments at law, upon which executions have issued, and been levied upon lands, are enjoined, after the dissolution of the in- junction, nothing more is necessary to authorize the sheriff to sell, than the writs of venditioni exponas. The lands are to be regarded as in custodia legis, and the death of the defendant in the judgments, after execution had issued and been levied, does not render a srire facias necessary against his heirs or tenements. Boyd &f Hance vs. Harris, 466. 44. The Courts always observe great caution in taking property out of the hands of a sheriff, held by him under execution, and the case of Alex- ander vs. Ghiselin, is the only case in which the sheriff's possession has been disturbed, unless upon some grounds affecting the validity of the judgment, or the regularity of the process, by which the seizure is made. 76. 45. A petition was filed, asking that a sale made by the sheriff, under the executions upon the above mentioned lands should be vacated, and the property resold by a trustee appointed under a decree in a creditor's suit to which the judgment creditor was not a party. But the court refused to grant the relief asked for, and said that it was neither war- ranted by authority, nor by any established principles of law or equity. 16. 46. A court of equity will, under special circumstances, and when the es- tate is in danger of being sacrificed, in consequence of clouds upon the title, or conflict and confusion growing out of the number and character of the liens and incumbrances upon it, interpose and keeping rival creditors off, sell the property for the general benefit of all. Ib. 47. A court of equity will always ratify and confirm that, when done, which, as a matter of course, if previously applied to, it would have or- dered to be done. Clark vs. Abbot, 474. 48. A decree was passed, authorizing the trustee to sell so much of the mortgaged property, as would be necessary to pay the amount then due. The execution of this decree was stayed by injunction, and in the mean time other installments of the mortgage debt became due. After the injunction was dissolved, the trustee sold so much of the prop- erty as would satisfy the amount due at the time of sale. HELD That as the decree must be regarded as standing as a security for the entire mortgage debt, the court, if applied to, would have em- powered the trustee to do what he has done, and will, therefore, give its subsequent assent to the act. Ib. See APPEAL, 1 to 3. ATTORNEY, 2. COMMISSIONS, 4. CONTRIBUTION AMONG JOINT OBLIGORS, 5. CORPORATIONS, 3. DECREE FOR AN ACCOUNT. DEMURRER. DISCOVETY OF TITLE. 588 INDEX. PRACTICE IN CHANCERY Continued. See DOWER, 16. EVIDENCE, 8, 9. EXCEPTIONS TO ANSWERS. INJUNCTION. LAPSE OF TIME. LIMITATIONS, 5, 6. MORTGAGOR AND MORTGAGEE, 3, 5. PARTITION. PLEADING. RECEIVER. SALES BY TRUSTEES, 13. TRUSTEES THEIR POWERS AND DUTIES. STATUTE OF FRAUDS, 3. PRAYER FOR GENERAL RELIEF. 1. The omission of the prayer for specific relief, is no reason why, under the general prayer, the complainants may not have such relief as the case alleged and proved may entitle them to. Crainvs. Barnes Sf Fer- gusson, 151. 2. The only limitation upon the power of the court to grant relief under the general prayer, is, that it must be agreeable to the case made by the bill and not different from or inconsistent with it. 76. PRE-EMPTION RIGHT. See PATENTS. PREFERENCE. See DEEDS VOID UNDER INSOLVENT LAWS, 5, 7, 8. UNDUE PREFERENCE. PRESUMPTION. 1. The legal presumption, when the three years after the date of the de- cree have elapsed, is, that it has been executed or satisfied, and the ap- propriate remedy is to revive it by bill of revivor. Hays vs. Henry, 342. See AGENT, 2, 3. FRAUD, 2. PRIVATE SALE. See SALES BY TRUSTEES, 7. PROCEEDINGS AT LAW. See INJUNCTION, 10 to 16. PRODUCTION OF BOOKS AND PAPERS. 1. Since the act of assembly, 1798, ch. 84, there can be no doubt of the power of this court to compel either of the parties to a suit to produce books and papers in the possession of the adverse party, which may relate to matters in issue between them. Bradford vs. Williams, 199. 3. But this is a power to be exercised with caution, and the party calling for its exercise should, with a reasonable degree of certainty, designate the books and papers required, and the facts expected to be proved by them. Ib. PROMISSORY NOTES. 1. A bonafide holder of a negotiable instrument, for a valuable considera- tion, without notice of facts, which effect its validity as between ante. INDEX. 589 PROMISSORY NOTES Continued. cedent parties, if he takes by indorsement before it becomes due, ac- quires a valid title and may recover upon it, though as between the antecedent parties the transaction may be invalid. Gwyn vs. Lee, 445. 2. The holder of such paper, before it is due, is not bound to prove that he is a bona fide holder for valuable consideration without notice, for the law will presume this in the absence of rebutting proof. Ib. 3. If the want, or failure, or illegality of the consideration has been estab- lished, or if it be shown that the note was lost, or stolen before it come into the possession of the holder, it is then incumbent on him to show that he has given value for it. Ib. PURCHASERS. 1. A trustee selling under a decree of the Court of Chancery, as a general rule, sells the title of the parties to the suit, and nothing more ; and though a purchaser discovering a defect in his title at the proper time, may be relieved from his purchase by asking for a rescission of the sale, he cannot be permitted, whilst holding on to his purchase, to in- sist upon having his title perfected by the application of the proceeds of sale, to the extinguishment of the claims of incumbrancers not par- ties to the suit. Duval vs. Speed, 229. 2. If a purchaser would be refused redress upon the ground of a deficiency in the number of acres, he could not be obliged, under the same cir- cumstances, to pay for an excess. Goldsborough vs. Ringgold, 239. 3. A bona fide purchaser of stock in a bank or other corporation, standing in the name of trustees, without notice of the trust, will be protected whether the trustees have the legal authority to make the transfer or not. Albert and wife vs. Savings Bank et al., 407. See EQUITY AND EQUITABLE DEFENCE. LAPSE OF TIME, 3. SALES BY TRUSTEES, 2. USURY, 2. DOWER, 9. RATIFICATION OF SALES. See SALES BY TRUSTEES, 13. INADEQUACY OF PRICE, 1. RECEIVER. 1. A receiver in strictness should not be appointed before the coming in of the answers, and although this rule has been broken through, yet the grounds which will induce the court to disregard it, must be very strong and special. Clark vs. Ridgely, 70. 2. A receiver will not be appointed unless it appears that such a measure is required to preserve the property from danger of loss. Ib. 3. When an application, by bill or petition, is made to the court to appoint a receiver, a sufficient foundation must be laid by stating the facts which will authorize the interference of the court in this form. Ib. 4. When a bill sets forth the complainant's title, and stated that a party had wrongfully taken possession of the property, but did not state that such party was insolvent or unable to account for the same, or that VOL. i 50 590 INDEX. RECEIVER Continued. the rents and profits were in danger of being lost, the court refused to appoint a receiver. Ib. 5. The court interposes, by appointing a receiver, against the legal title with reluctance, and fraud or imminent danger, if the intermediate possession should not be taken by the court, must be clearly proved. Thompson vs. Diffenderfer, 489. 6. Though the court will not, by the appointment of a receiver, deprive a prior mortgagee, having the legal title, of 'his right of possession, it will not object to such appointment by any act short of a personal as- sertion of his legal right, and taking possession himself. Ib. 1. The power of appointing a receiver is a delicate one, and to be exer- cised with prudence and circumspection, yet, upon a sufficient cause stated and proved, the court will exercise the power, though by so do- ing, the business of the defendants, as merchants, would be broken up. 76. RECORDING OF DEEDS. The act of 1785, ch. 72, sec. 11, authorizes the court to direct a deed to be recorded, but with a limitation that it shall not effect the rights of creditors, becoming such after the execution of the deed. Brooks vs. Dent, 523. REMEDIAL LAWS. See CONSTRUCTION OF STATUTES, ]. REMEDY AT LAW. See JURISDICTION, 1, 2, 13. SPECIFIC PERFORMANCE, 7. RENTS AND PROFITS. See DOWER, 5 to 7. ELECTION, 2. RES ADJUDICATA. 1. The plaintiff having sued at law for rents and profits of lands, as dam- ages for the detention of dower, and having failed to recover them there, the question as to them must be regarded as res adjudicata. They cannot form the subject of a new litigation, the judgment at law having foreclosed the plaintiff. Kiddall vs. Trimble, 143. RESOLUTIONS OF CORPORATIONS. See AGENT, 2. RESULTING TRUST. 1. Where the consideration for a conveyance is paid by one, not a party to the instrument, there is a resulting trust in his favor, a trust im- plied by law, from the presumed intention of the parties, and the ob- vious justice of the case, which may be proved by parol, being except- ed from the statute of frauds. Hollis vs. Hollis, 479. 2. If it could be proved that land was purchased with the wife's money, then, as between her and the heirs at law, or volunteers claiming un- der her husband, a trust would result to her, being implied by law from the intention of the parties and the justice of the case, and which LNDEX. 591 RESULTING TRUST Continued. being expressly excepted from the statute of frauds may be proved by parol. Brooks vs. Dent, 523. 3. But such resulting trust cannot be set up to the prejudice of the rights of subsequent creditors. 76. RETURN OF COMMISSIONS TO MAKE PARTITION. See PARTITION. SALES BY TRUSTEES. 1. An advertisement for sale of lands by a trustee, stated that, "by virtue of a decree of the High Court of Chancery, there will be sold certain real estate," naming the tracts and giving their locality, "of which J. C. died seized and possessed," but did not state the names of the par- ties to the suit in which the decree passed, nor the several incumbran- ces upon the property. HELD That the sale would not, on this account, be vacated, in the absence of proof that competition in the purchase was prevented, or the sale in any respect prejudiced thereby. Gibbs vs. Cunning- ham, 44. 2. The objection that the trustee did not sell the interest of the parties to the suit, but only the interest and title of which J. C. died seized and possessed, is anj)bjecti9n which only the purchasers themselves could take, as they, and they alone, are injured by it. Ib. 3. Where a sale is objected to, on the ground of inadequacy of price, re- sulting from doubts about the title, which doubts could have been re- moved, by reasonable efforts on the part of the trustee, his neglect to do so may effect the question of ratification. Ib. 4. Inadequacy of price will not induce the court to vacate a sale in other respects unexceptionable, unless such inadequacy is so gross as to in- dicate a want of reasonable judgment and discretion on the part of the trustee. 76. 5. The sale in this case was made for $3,000. HELD That an offer of $4,000, made subsequent to the sale, and after the value of the prop- erty had been enhanced, could have but little weight in determining whether the property previously sold at a price so much below its value, as to indicate a want of reasonable judgment in the trustee. Ib. 6. The validity or invalidity of a sale must depend upon the state of cir- cumstances existing at the time it was made. In sales made by trus- tees acting under the decrees of a Court of Chancery, the court is the contracting party on the one side, and the bidder on the other, the trustee being regarded as the mere agent or attorney of the court. Ib. 7. A trustee after making fruitless efforts to sell lands, according to the terms of the decree, sold them at private sale, at a price greatly exceed- ing the best offer he could get for them at public sale. HELD That, upon the principle that chancery will ratify an act when done, which upon previous application would have been authorized, the objection to the act of the trustee, founded upon the form of the sale, cannot prevail. Ib. 8. Whilst the court will vacate sales, by trustees, made under the influence 592 INDEX. SALES BY TRUSTEES Continued. of error, fraud, misrepresentation, or injurious mistake, it would, nevertheless, be a fatal policy to be astute in finding out objections to them. Ib. 9. It was objected to the sale, that the trustee's bond was not upon stamp- ed paper, as required by the act of 1845, ch. 193, which went into operation .on the 1st of May, 1846. The bond was dated on the 29th of April, 1846, but was not filed and approved until the 7th of July fol- lowing. HELD That this bond having been approved by the Chancellor, as required by the decree, it would be of dangerous consequence to say that the purchaser shall not get the benefit of his purchase, if the bond for any reason is defective. 16. 10. A trustee selling under a decree of the Court of Chancery, as a general rule, sells the title of the parties to the suit, and nothing more. Du- vall vs. Speed, 229. 11. It is the established doctrine in Maryland, that a sale made by a trus- tee under a decree of the Court of Chancery, is a transaction between the court and the purchaser, and the report of the trustee and the order of the court ratifying the same, must be regarded as the evidence of the contract between the parties. Goldsborough vs. Ringgold, 238 -, Har- rison vs. Harrison, 331. 12. An objection to a sale upon the ground that the decree under which it was made had been appealed from, and an approved appeal bond filed of which the trustee prior to the sale had notice, was sustained, and the sale set aside. Chesapeake Bank vs. McLellan &f Raborg, 328. 13. Though the trustee may depart from the special directions of the de- cree, yet a subsequent ratification by the court would render a sale as binding and valid, as if he had pursued, in all respects, those direc- tions. Harrison vs. Harrison, 331. 14. The court in confirming the acts of its agents who have not followed the directions given them, must take care that no injustice is done the parties interested, and that they have an opportunity of being heard before their rights are decided upon. 76. 15. It is not always a valid objection to the confirmation of a sale, proved to have been well attended and fair in other respects, that it was made on a different day, and at a different place from those mentioned in the advertisement. Ib. 16. The report of the sale by the trustee is not absolutely necessary to per- fect the title of the purchaser. 16. 17. Trustees acting under decrees to sell, have been permitted, when sales of the property could not be readily or advantageously made, to rent it, and account for the rents to the parties entitled to the proceeds, and the court will give like authority to collect and account for rents due when the sales are effected. Clark vs. Mbott, 475. See STATUTE or FRAUDS, 1. INADEQUACY OF PRICE. INDEX. 593 SEAMAN'S WAGES. 1. The crew of a steamboat plying between the ports of adjoining states upon navigable tide water, have a right to proceed for wages due them, by libel in the District Court of the United States, and have a lien on the vessel, her tackle and furniture, for such wages. Abbott vs. Steam Packet Co., 542. 2. This right to libel the vessel in the admiralty courts for wages, extends to every officer and seaman who assists in navigating her except the captain. Ib. 3. The officers and seamen have a triple security for their wages : they may have recourse to the vessel, the owner, and the master. Ib. 4. The seaman's claim for wages follows the ship and its proceeds, in whose hands soever they may come, is preferred to all other demands, and constitutes a sacred lien, which continues as long as a single plank of the ship remains, and extends to the whole amount of compensation due the seamen. Ib. SECRET TRUSTS. The court does not favor secret trusts, and will not allow them to be set up to defeat the right of creditors. Brooks vs. Dent, 523. SHERIFF. See POUNDAGE FEES, 3. PRACTICE IN CHANCERY, 43 to 45. SLAVES, See FREE NEGROES. MANUMISSION, 1, 2. WILL AND TESTAMEMT, 14. SPECIFIC PERFORMANCE. 1. A bill for the specific performance of a contract is an application to the sound discretion of the court, which withholds or grants relief accord- ing to the circumstances of each particular case, and in the exercise of its extraordinary jurisdiction in such cases, the court, though not exempt from the general rules of equity, acts with more freedom than when exercising its ordinary powers. Tyson vs. Watts, 13. 2. The contract must be fair, and just, and certain, and founded on an adequate consideration, and if deficient in either of these requisites, its performance will not be decreed ; hence the plaintiff who seeks the enforcement must make out a stronger case than is required of him who resists the decree. Ib. 3. The contract must also possess the essential ingredient of mutuality, and in cases of inequality of obligation, it is better to leave the plaintiff to his remedy at law for damages ; for if equity acts at all, it must act ex vigore, and carry the contract into execution with unmitigated sever- ity. Ib. 4. The manifest object of the defendant in this case, (and which he believ- ed was secured by the contract) was to have the minerals on his farm worked as well as explored, and by the contract he gave full power to P., the assignor of the plaintiff, to make explorations and to work the 50* 594 INDEX. SPECIFIC PERFORMANCE Continued. mines, but the only engagement on the part of P. being limited to ex- plorations, the contract was held deficient in reciprocity of obligation and its specific execution refused. 16. 5. Upon a bill for the specific performance of a contract, the court must entertain no reasonable doubt of the existence of the contract, and be satisfied that it is one, which, looking to what is just and reasonable, ought to be enforced. Waters vs. Howard, 112. 6. The specific performance of contracts in equity, is not a matter of ab- solute right in the party, but of sound discretion in the court ; and un- less the court is satisfied that the application is fair, just and reasonable in every respect, it will refuse to interfere, but leave the party to his remedy at law for compensation in damages. Ib. 7. In contracts relating to personal property, unless it can be shown that adequate compensation cannot be given by an action at law, chancery will not interfere. Ib. 8. The defendant's testator entered into a contract with the complainants, by which they were to become his agents for the sale of his crops, ad- vance him money and accept his drafts, for the payment of which he pledged his crops on hand and the growing crops of the year 1847. Upon the faith of this agreement, complainants made large advances to testator, and at the time of his death, which occurred in January, 1848, he was largely indebted to them. Upon a bill, by complainants, claiming a lien on the corn and tobacco in hand, and on the crop of wheat sown in the fall of 1847, and to enforce the specific performance of this contract, it was HELD That this was a positive agreement on the part of the testator, to send to complainants, to cover their advances to him, his crops of wheat, tobacco and corn which would be marketable in the year 1847, and also the wheat and crop seeded in that year, and that this court would enforce its specific execution. Sullivan vs. Tttcfc, ex'r of Bowie, 59. 9. Courts of equity do not enforce the specific performance of contracts relating to personal property, with the same facility and universality as those relating to real estate ; because in the former case, courts of law usually afford a complete remedy. Ib. 10. But whenever a violation of the contract cannot be correctly estimated in damages, or wherever from the nature of the contract, a specific performance is indispensable to justice, a court of equity will not be deterred from interfering because personal property is the subject of the agreement. Ib. 11. There can be no doubt that if a party has succeeded in proving a con- tract, and in showing that it has been in part performed, he is entitled to have it specifically executed. Owings vs. Baldwin 8f Wheeler, 120. 12. The remedy in cases of specific performance must be mutual, and if one of the parties is not bound, or is not able to perform his part of the contract, he cannot call upon the court to compel a performance by the opposite party. Beard vs. Linthicum, 345. INDEX. 595 SPECIFIC PERFORMANCE Continued. 13. A Court of Chancery will not decree the specific performance of a mere voluntary agreement. Shepherd vs. Shepherd, 244. 14. The Chancellor refused to decree the execution of the contract set up in this case, because there was a want of the essential element of un- equivocal certainty in the agreement and in the acts relied upon, as part performance. 76. 15. The ground upon which a court of equity decrees the specific perform- ance of a parol agreement respecting lands, is, that in case of a clear part performance by one party, it would be fraud in the other, to re- fuse to perform the agreement on his part. It would be perverting the statute from a shield against, into an instrument of, fraud. Small vs. Oioings, 363. Sec PART PERFORMANCE, 1. STATUTE OF FRAUDS. 1. It may well be doubted whether sales made by trustees under the au- thority of our courts of equity are within the statute of frauds. Har- rison vs. Harrison, 331. 2. It has been repeatedly remarked by eminent judges, that the disposition, which at one time existed to relax the statute of frauds, should be op- posed, and that the courts should take a stand against any further en- croachments upon its provisions. Beard vs. Linthicum, 345. 3. Where a party sets up an agreement in his bill, invalid under the statute of frauds, and the defendant by his answer denies the agreement, it is not perhaps necessary for him to insist upon the statute as a bar, but the complainant at the hearing must establish the agreement by written evidence. Small vs. Owings, 363. 4. Where the consideration for a conveyance is paid by one, not a party to the instrument, there is a resulting trust in his favor, a trust implied by law from the presumed intention of the parties, and the obvious jus- tice of the case, which may be proved by parol, being excepted from the statute of frauds. Hollis vs. Hollis, 479. 5. The weight of American authority, is, that it is sufficient to bind a sure- ty, if his engagement to pay the debt of another is in writing, although the consideration may not be reduced to writing. But where both the consideration and the engagement are in writing, the surety is bound, even according to the strict English construction of the statute of frauds. Brooks vs. Dent et al., 523. See PART PERFORMANCE, 2, 3, 6, 9, 10. PRACTICE IN CHANCERY, 29, 30. RESULTING TRUST. SUBSCRIPTION TO STOCK. See AGENT, 3. SURETY. See STATUTE OF FRAUDS, 5. SURCHARGING AND FALSIFYING ACCOUNTS. 1. Where an agreement was made to settle a claim presented to the com- plainant in the form of a stated account, which, without examination 596 INDEX. SURCHARGING AND FALSIFYING ACCOUNTS Continued. was assumed to be correct, the complainant will be allowed to sur- charge and falsify such account, to the extent of the errors specified in his bill, independently of the question of fraud, actual or construc- tive. Williams vs. Savage Manufacturing Company, 306. 2. The court is to take the account as stated, and the onus probatidi is upon the party having liberty to surcharge and falsify, and he will be re- stricted to proof of error specified in his bill. Ib. 3. When the accounts upon which the settlement was based, were pre- sented to the complainant, he was deprived of much of his mental capacity, and incapable of giving them that examination which was indispensable to their full comprehension. HELD That under these circumstances, it was the duty of the court, if er- rors were pointed out, to permit the plaintiff to surcharge and fal- sify the accounts, though the settlement based upon them was regarded as a family settlement, which the court will usually uphold with a strong hand. 16. TENANCY IN COMMON. See WILL AND TESTAMANT, 2. TRANSFER BY OPERATION OF LAW. 1. Where the administrator of an executor takes out, jointly with another, letters of administration de bonis non, on the estate of the testator, he does not exclusively represent both estates, and, consequently, there can be no transfer, by operation of law, of the property in his hands as ad- ministrator to him as administrator de bonis non. Thomas vs. Wood, 297. 2. Where a final account has been passed, or the time limited by law for the settlement up of an estate has elapsed, and the same person who is executor or administrator, is also guardian to the parties entitled to the surplus, the law will adjudge such surplus, in his hands in4hat char- acter in which his duty requires he should hold it. Estate of Edward Williams, 25. 3. The transfer in such case is effected by operation of law, and requires no act of the party himself. 76. 4. This principle does not apply to a trustee appointed under a decree of the Court of Chancery to sell property where no time is fixed by law for the completion of his trust. Ib. TRANSFER OF STOCK. 1. The mere addition of the word "trustee" to the name of the person who appears on the books of a corporation as the stockholder, with nothing to indicate the character of the trust, or the party beneficially inter- ested, will not deprive him of the legal capacity to transfer the stock, though by so doing, he may commit a breach of trust. Mbert and wife vs. Savings Bank et al., 407. See LIABILITY OF CORPORATIONS ON TRANSFERS OF THEIR STOCK. TRESPASS. 1. Courts of equity will interfere by injunction, even as against trespassers, if the acts done, or threatened to be done, to the property, would be INDEX. 597 TRESPASS Continued. ruinous and irremediable. Georges Creek Coal and Iron Company vs. Detmold,311. 2. But an injunction is not granted to restrain a mere trespass, where the injury is not irreparable and destructive to the plaintiff's estate, but is susceptible of perfect pecuniary compensation, and for which the party may obtain adequate satisfaction in the ordinary course of law. 76. TRUST. See LIMITATIONS, STATUTE OF, 2, 3. RESULTING TRUST. SECRET TRUST. LIABILITY OF CORPORATIONS ov TRANSFERS OF THEIR STOCK, 2 to 4. TRUSTEE IN INSOLVENCY. 1. It is the right and duty of the trustee in insolvency, to sell the mort- gaged property of his insolvent, and pay off all the liens and incum- brances thereon. Bank of Westminster vs. Whyte, 536. 2. Though the transfer made to secure a debt, is in the nature of a trust, still it is the duty and the right of the trustee in insolvency, to dispose of the property. 76. TRUSTEES, THEIR DUTIES AND POWERS. 1. A trustee for the sale of lands under a decree of a court of equity, is the mere instrument or agent by whose hands the court acts, and the sales made by him, are, in fact, the sales of the court. Seicall vs. Cosligan, 208. 2. The court has the incontestible power to pass an order, directing the trustee to bring the proceeds of sale into court, to be disposed of under its direction. 76. 3. The court is not disposed to look with favor upon the appropriation by its trustee of the proceeds of sales without its previous authority, and such conduct will be viewed with especial jealousy where married women and children are concerned, and the property or fund raised by the sale, is subject to marriage settlements, designed for the sup- port of families. 76. 4. When a trustee, appointed by this court to sell property and bring the proceeds in to be disposed of under its orders, disburses money without competent authority, he will be chargeable as if the money was in hand. Green vs. Putney, 262. 5. This principle cannot be applied with the same rigor to a trustee acting under a deed, giving express authority to pay debts. 76. 6. Nor does the fact that such a trustee applies to a court of equity for its direction and assistance in the execution of his trust, place him in the predicament of a trustee of the court's appointment, with powers limit- ed and defined by the decree. 76. 7. If such trustee thinks proper himself to disburse the fund, he cannot be called upon to bring it into court, unless the disposition which he has made of it, is shown to be improper. Ib. See LIABILITY OF CORPORATIONS ON TRANSFERS OF THEIR STOCK, 2 to 4. 598 INDEX. UNDUE PREFERENCE. 1. To avoid a deed under the acts of 1812, ch. 77, and 1816, ch. 221, it is necessary to show not only that an undue and Improper preference was given by the debtor, but, also, that this was done with a view or under an expectation of taking the benefit of the insolvent laws. Glenn vs. Baker, 73. See DEEDS VOID UNDER THE INSOLVENT LAWS, 1, 4, 5. USURY. 1. A party, who has paid a judgment founded on a usurious debt, may ask- ed to be relieved as to the amount paid beyond what was legally due and recoverable ; and this may be done without paying, or offering to pay, any thing, because the application for relief is predicated upon the averment, that too much has been already paid. Doub vs. Barnes, 128. 2. A purchaser from the mortgagor, may avail himself of the defence of usury, to defeat the action of the assignee of the mortgagee. Ib. 3. Where a party goes into a court of equity to ask relief against an usuri- ous mortgage or contract, he must do equity, by paying, or offering to pay, the principal sum with legal interest. Wilson vs. Hardesty, 66. 4. Since the act of 1845, ch. 352, usurious instruments are not, under any circumstances, avoided, but are made valid securities in all courts, no matter by whom proceedings may be instituted upon them, to the ex- tent of the principal and six per cent, interest. Gwyn vs. Lee, 445. See CONSTITUTIONAL LAW, 3. VACATING CONTRACTS. See JURISDICTION, 14. VACATING SALES. See PRACTICE IN CHANCERY, 45. SALES BY TRUSTEES, 1, 4, 6, 8, 9, 12. VALUATION OF COMMISSIONERS. 1. Commissioners having been appointed by the parties, to value a certain privilege of cutting wood and timber, to which the widow and sons of a testator, were, by his will, entitled, it was HELD That the maxim, omnia rite esse acta prcesumuntur, is applicable to the proceedings of these commissioners, and, that every fair intendment should be made in support of their acts. Crouch vs. Smith, 401. 2. The rule which applies to the valuations made by commissioners ap- pointed to divide real estate, that such valuations, though not con- clusive, and liable to be rejected if clearly shown to be erroneous, are entitled to great respect, and are not to be disturbed, unless the weight of evidence in opposition to them, is decidedly preponderating, is ap- plicable, also, to the valuation made by these commissioners. Ib. VENDOR'S LIEN. 1. Whether the vendor's lien exists or not in a case where the property of an individual is taken for the public use, in virtue of the right of eminent domain, is a question of no easy solution. Hamilton vs. An- napolis and Elk Ridge Rail Road Company, 107. 2. Unless an express contract can be shown for the transfer of the vendor's INDEX. 599 VENDOR'S LIEN Continued. lien, it will not pass to the assignee simply upon the footing of the as- signment of the debt. Dixon vs. Dixon, 220. 3. There are cases in which the benefit of the vendor's lien has been ex- tended to third persons, but they are cases in which the marshaling of assets has led to such results, or where sureties, who have been com- pelled to pay for their principals, have been, by substitution, clothed with all the rights and remedies of those whose debts they paid. Ib, 4. There has been no case found, where the assignee of a note or other security given for the purchase money of land, has been permitted to sustain a claim of this description on an implied agreement to assign the lien, though cases may be found in which, by express agreement, the lien has passed to the assignee of the bond or note. Ib. 5. The lien being intended to secure the payment of the purchase money to the vendor, an assignment of the notes or bonds given therefor, without responsibility, and for value, is equivalent to payment, and extinguishes the lien. Ib. See PRACTICE IN CHANCERY, 35. VESTED ESTATE. See WILL AND TESTAMENT, 15. VOLUNTARY CONVEYANCE AND AGREEMENT. See CONVEYANCE, VACATING OF, 2 to 6. DEEDS VOID DNDER THE INSOLVENT LAWS. SPECIFIC PERFORMANCE, 13. VOIR DIRE. See PRACTICE IN CHANCERY, 26. WAIVER. See COMMISSIONS, 2. PRACTICE IN CHANCERY, 28. WARRANT OF RESURVEY. See PATENTS. WARRANTY. 1. Though the seller of a chattel, of which he has possession, warrants the title, he is not bound to answer for the quality, unless he expressly warrants the goods to be sound and good, or unless he makes a fraud- ulent misrepresentation, or uses some fraudulent concealment con- cerning them, which amounts to a warranty in law. Taymon vs. Mitchell, 496. 2. An assertion respecting an article must be positive and unequivocal, and one on which the buyer places reliance, in order to amount to a warranty, and if the vendee has an opportunity of examining the article, the vendor is not liable for any latent defect, without fraud or an express warranty, or such a direct representation as is tantamount to it. Ib. 3. Every mere false assertion of value, when no warranty is intended, will not constitute a ground of relief to the purchaser. If the assertion is a mere matter of opinion, in which parties may differ, or if the seller indulge in the common language of puffing, it will not amount to a warranty. Ib. 600 INDEX. WARRANTY Continued. 4. But if a party undertakes to make a direct representation of a fact, even though he be mistaken as to the fact, if the other party is in- duced to act upon such representation, equity will relieve against the act, equally as if it had been .a wilful and false assertion, for the in- jury is the same. Ib. 5. Though the means of correct information be equally open to both par- ties, yet, if either of them does or says any thing tending to impose upon the other, and he is imposed upon, to his injury, the contract will not be allowed to stand. 16. 6. In the case of a breach of warranty, the vendee may sue upon it, with- out returning the goods, or rescind the contract by returning them, or the offer to return them, in a reasonable time, so that the seller is placed in statu quo, and sue for and recover back the purchase money, in an action for money had and received. 76. 7. What is a reasonable time, within which the purchaser must rescind the contract, by a return of, or an offer to return the thing purchased, does not appear to be stated in the books. The time, however, is to be computed from the period when the unsoundness is discovered, and not from the date of the contract. 16. 8. An offer to return negroes found to be unsound, made within a month after the sale, and as soon as their unsoundness was discovered, was held to be within a reasonable time. Ib. 9. An offer to return chattels within a reasonable time, is equivalent in its effect upon the remedy, to an offer accepted by the seller. Ib. See EVIDENCE, 5. WASTE. See JURISDICTION, 10 to 13. MORTGAGOR AND MORTGAGEE, 4, 5. WIFE'S RIGHT TO PERSONALTY. 1. It is not in the power of a husband in this state, by will, to deprive his widow of that portion of his personal estate to which she is entitled by law. Hays vs. Henry, 337. 2. Yet there can be no doubt of his right to dispose, absolutely, of this de- scription of property during his life, independently of the concurrence and exonerated from any claim of the wife, provided the transaction be not colorable merely, and be unattended with circumstances indic- ative of fraud upon the rights of the wife. Ib. See FRAUDULENT CONVEYANCES, 1. WILL AND TESTAMENT. 1. If the interest which a creditor takes by a will, is not co-extensive with, or of the same nature of that to which he is entitled from the testator as his debtor, he will be entitled to both. Waters vs. Howard, 112. 2. The degree of intention necessary to raise a case of election must plain- ly appear upon the face of the will, but the court is not to disregard what amounts to a moral certainty of the intention of the testator. Ib. 3. Though evidence dehors the will, will not be admitted to prove or dis- INDEX. 601 WILL AND TESTAMENT Continued. prove such intention, there is no valid objection to such evidence to show the state and circumstances of the property. Ib. 4. A party cannot take a benefit under a will, and at the same time defeat its provisions. Ib. 5. A testator, after disposing of certain portions of his estate, devised all the residue of his property to the complainant, in trust, to hold the in- come, rents and profits, of one-third part of said residue for the use of his grandson, the defendant, during his life, such income, &c. to be paid to him from time to time, as they might accrue, and after his death, to his children in fee, and failing children, to the other grand children, to whom the remaining two-thirds were in like manner de- vised. At the time of the testator's death, the grandson was indebted to him in a large sum of money, but it appearing that the testator did not mean to regard him as his debtor in respect thereof, it was HELD That to enforce the payment of this debt out of the defendant's share of this income and profits, would defeat the clear intention of the testator to provide his grandson a competent support. Waters vs. Waters, 196. 6. That it was the duty of the complainant, the trustee, to retain the amount of a loss, occasioned by the failure of the defendant to comply with the terms upon which he purchased a part of the trust estate out of the income of said trust estate payable to the defendant. Ib. 7. Upon a devise of real and personal property to a trustee, in trust, to ap- ply the income arising therefrom for the mutual benefit of the uncle and aunt of the testator for life, and after the death of the uncle to the mutual benefit of the aunt and her children. It was HELD That during the life of the uncle and aunt the income of the trust estate should be equally divided between them, and that the title of the children of the aunt to participate in the income is to be post- poned until after the death of the uncle. Mitchell vs. Holmes, 287. 8. A testator devised certain real and personal property to his wife "to her use for the benefit of her and her children under age," and after they all come of age, "to his wife during her natural life and no longer,'' and after her death, the whole "to be divided equally, share and share alike,'' between the testator's seven children, (naming them,) or equal- ly between such as shall then be living. It was HELD 1. That though this will was executed prior to the act of 1822, eh. 162, which abolishes thereafter estates in joint-tenancy, unless the devise expressly declares that the property shall be so held, this devise does not create an estate in joint-tenancy. 2. The words, to be equally divided, share and share alike, even in a deed, would create a tenancy in common. 3. This will being prior to the act of 1825, ch. 119, and there being no words of inheritance or perpetuity from which the intention of the testator to pass a fee, could be clearly ascertained, it was held that the children took estates for life only. 4. The true construction of the whole clause, is, that the widow VOL. I 51 602 INDEX. WILL AND TESTAMENT Continued. took an estate for life ; for a period thereof, to be held by her, for the benefit of herself and her children ; that is, during their mi- nority. Upon the children attaining their full age, the widow still living, her estate would continue until her death, disencum- bered of any charge on account of the children, and upon her demise the limitation over -for life to the children would take ef- fect, and upon their death, the inheritance would pass to the heirs at law of the testator as property undisposed of by the will. Moody vs. Elliott, 290. 9. A testator devised his lands to his executor to be sold, and gave a lega- cy of $2,000 to his niece, to be paid her out of the proceeds of the sale of his real estate, HELD That the surviving husband of the niece had the same title to demand this legacy bequeathed his wife, as if it had been payable out of the personal estate of the testator, and that it made no difference whether the wife died before or after the sale actually took place. Thomas vs. Wood, 296. 10. It is the duty of the courts to give effect to every part of a will, with- out change or rejection, provided, an effect can be given to it not in- consistent with the general intent of the whole will taken together. Pue vs. Pue, 382. 11. Where there are two conflicting clauses, the principle is, that you are not to disturb the prior devise farther than is absolutely necessary for the purpose of giving effect to the posterior qualifying disposition. Ib. 12. Where a testator uses, in one part of his will, words having a clear meaning in law, and in another part, words inconsistent with the former, the first words are to be cancelled and overthrown, only, when the two provisions are totally inconsistent with each other, and where the real intention of the testator cannot be ascertained. Ib. 13. It is now fully established that the general intent of the testator, though first expressed, will overrule the particular intent. 76. 14. A testator, by his will, manumitted certain negroes, and after giving then a pecuniary legacy, devised as follows : "I will and devise that my executor shall cause to be erected on some part of my farm, called Rose Hill, (the place to be selected by the above manumitted negroes,) a good substantial dwelling house,with one brick chimney, which house, together with two acres of land adjoining thereto, I give and devise to the above manumitted negroes and their heirs forever. HELD That the testator intended, by this devise, to provide the negroes in question with a habitation to live in, and as this intent comes in conflict with the policy of the legislature, which forbids persons in their situation from remaining in the state, unless upon terms in- compatible with the unrestricted enjoyment of the devise, the latter must fail. Negro Monica vs. Mitchell, 356. 15. A testator devised and bequeathed certain portions of his real and per- sonal estate to trustees, in trust for his daughter, during her life, and after her death, in trust for any child, or children, she might have, with direction that the trustees, or the survivor of them, should, after INDEX. 603 WILL AND TESTAMENT Continued. the death of his said daughter, convey and assign unto her children, if she should have or leave any at the time of her death, in equal portions, absolutely, all the money and estate in his will devised and bequeathed unto the said trustees, for the use and benefit of his daugh- ter and her children ; provided, always, that no such conveyance or assignment should be made, until the child or children to whom the same was to be made, shall have severally attained the age of twenty- one years." The daughter, who survived the testator, died, leaving two sons, one of whom died intestate, and without issue, before at- taining the age of twenty-one years. HELD 1. That the deceased son of the testator's daughter, had a vested in- terest in the estate devised and bequeathed to his mother for life, and that, upon her death, and when he, if living, would have at- tained the age of twenty -one, the trustees would have been bound to convey and assign to him his proportion of said estate. 2. That his representatives can only claim as he could have done if living, and as he had no power to call for the legacy before he at- tained twenty -one, so neither can his representatives insist upon the payment of it sooner. Keerl vs. Fkilton. 532. 16. The same will contained the following clause, "After the death of my said wife, I give, devise and bequeath all the rest, residue and remain- der of my estate, real, personal and mixed, unto my said children, (nam- ing his six sons,) and to the said trustees, for my said daughter, as afore- said, to be divided into equal proportions for my said seven children, andtojtheir heirs, executors and assigns forever. " The daughter died, living the widow of the testator. HELD 1. That the daughter took an absolute title in remainder, in one- seventh of this rest and residue, upon the death of the widow, to whom a life estate was given. 2. That upon the death of the widow, this one-seventh, will descend to the heirs at law of the daughter, without being liable to the curtesy of her husband, she not having been seized in fact, and in deed of this estate during coverture. Ib. See COMMISSIONERS, 1. ELECTION, 1. NOTICE OF TRUST, 3. POSTHUMOUS CHILDREN. WOOD CUT, NOT REALTY. 1. Wood and timber cut down prior to the sale of land, does not pass to the purchaser, but is severed from the inheritance, and becomes per- sonal property. Crouch vs. Smith, 401. A _..!.< IH, ,!,, I || 001 167325