« AnteriorContinuar »
H.'s debt to the payment of his claim against Y. & M.; B. answered,
denying that his judgment against H. was M.'s property, but stated it had
been assigned to him by M., to secure him as indorser for M., and also to
secure other enumerated debts, including one due by M. to Y., M.'s co-
debtor to S.; to secure which debts, also, other property had been assigned
to him (B.) by M., which other property had been sold and produced suffi-
cient nearly to pay off those debts : Held, that before S. could claim the ap-
propriation of the judgment against H., to the satisfaction of Y. & M.'s
debt to him, on the ground that M. had assigned it to B. in part to secure
Y., he must show that the debt from M. to Y. was still subsisting, and
was not among the debts paid by the sale of the property assigned to B. Ib.
4. None but a creditor having a judgment in this state can attack a deed of
trust as fraudulent, with the view of having the property conveyed by it,
subjected to the creditor's demand ; not even though the parties to the deed
of trust are non-residents, and the bill be a creditor's foreign attachment
bill; nor will it aid the creditor that he has a judgment on his demand in the
state where the parties to the deed of trust reside. Jb.
5. The chancery court has no jurisdiction of a bill filed by one person against
another, to recover the amount of various open accounts held by the coin-
plainant against the defendant ; some of which were contracted by the de-
fendant with other persons than the complainant, and had been purchased by
the complainant, and some contracted with the complainant and his partner :
the latter having parted with his interest to the former.
Garland v. Hull, 76.
6. It seems that the fact that certain goods have been furnished for the use
11. Whether an attachment of the person of a defendant may issue only on
motion to commit, and notice thereof to the defendant or his solicitor, or
upon motion for an order nisi, which order also must be served; or whether,
upon service of an injunction, an attachment may issue on the first instance,
is a mere question of practice, and it is not material which is pursued.
This court must presume that the chancellor followed the rule of practice as
it existed in his own court, and this court will not interfere, because he
chose to follow the modern, instead of the ancient rule of practice.
Lewis et al. v. Miller, 110.
12. According to the practice in this state, in the superior court of chancery,
decrees are drawn up by counsel, and submitted to the chancellor for his sig,
nature; and when it is signed and placed upon the records of the court, it
is to be considered as enrolled. Sagory v. Bayless, 153.
13. After, therefore, a decree has been signed and spread upon the minutes, and
the term has elapsed at which it was rendered, the superior court of chan-
cery has no power on petition to set aside or open such decree ; it can only
be done by bill of review or appeal. lb.
14. The superior court of chancery, by the law of 1842, has two terms per
annum, commencing respectively in June and December, nor is that act so
changed by the supplemental act of to that of 1842, (which provides
that the court shall be always open,) as to take away the regular stated
15. Where, therefore, the chancery court adjourned on the 29th of November,
1847, to court in course, which was held on the first Monday in the next
month (December), it was held, that all decrees rendered at the June term
became final on the adjournment, and would not be set aside by petition on
the first day of the next term, though it came only five days after the
16. P. filed his bill in the superior court of chancery against L. and others, which
18. A bill was filed, seeking to subject certain lands to an alleged lien, &c.; the
chancellor declared the land subject to the lien, and ordered it to be sold by
a commissioner. The decree also provided for the costs of the suit, leaving
no question unseuiled but the appropriation and distribution of the fund for
which the land might sell : Held, that this was not an interlocutory decree,
but a final one from which a writ of error might be prosecuted. 16.
19. He who comes into a court of equity seeking to have impediments or clouds
removed from his title, must come prepared to show ihe entire fairness of
his own title; and if he fail in doing so, a court of equity will give him no
relief, but will remit him 10 bis remedy at law. Boyd v. Thornton, 338.
20. In this case, both parties claimed under judyments against the same defend-
ant, of the same date; the complainant was the first to purchase under one
of the judgments; but the defendant had, in addition to his subsequent
purchase under the judgment he purchased under, also purchased the land
before either sheriff sale, directly from the defendant in the judgments, but
since their rendition and subject to their lien; the complainant sought a
cancelment of both titles of the defendant; the defence set up was, that
the complainant had purchased with the means or for the benefit of the
defendant in the execution, for whom he held the land; the court review
the facts in the case, and reach the conclusion that the facts proved are at
least sufficient to cast suspicion upon the complainant's tiile, and therefore
they refuse him relief, but dismiss his bill without prejudice. 16.
21. However broad the statute may be authorizing the true owner of real estate
to come into equity to remove clouds from his title, it does not alter the
settled equitable rule, that he who comes into equity must come uncontami-
nated by fraud, and with clean hands. Ib.
22. C. filed his bill against W. to obtain relief against certain alleged frauds of
W., and 10 compel an account from him. He charged that W. had been for a
long time his commission merchant in New Orleans; had obtained a judgment
at law against him in this state, under execution on which W. induced C. to
assent to a sale, after the judgment had been paid, of his slaves, under prom-
ise that C. should have the possession and reap the advantages of their labor;
but W., by various alleged devices, obtained possession after the sale under
execution, and carried the slaves off ; that C. had shipped, after the date of
the judgment, various amounts of cotton to W. at different intervals; that
W. had charged him usurious interest, and had paid money at different times
for him, constituting a running account for several years, upon which, though
W. alleged C. was in his debt, yet W. was largely in C.'s debt; W. de-
murred generally to the bill; the court held, that, as to the alleged fraud in
reference to the slaves, C. was in pari delicto, and W. was not bound to
answer; but, in relation to the account, W. being called upon for a discor-
ery, should have answered fully, as to all matters since the judgment, and
to that extent the demurrer should be overruled. Watt v. Conger, 412.
23. In matters of account, extending over a variety of transactions, the remedy
in equity is deemed more ample and complete than at law, and tends to pre-
vent a multiplicity of suits. Ib.
24. F. and B., alleging themselves to be the owners of the equitable title to a
tract of land, the legal title to which was in C. and D., gave G. a bond, with
covenants of warranty, to make him a title to the land, and took from him
his notes for the purchase-money, payable in instalments, G. having full
knowledge of the nature of the title of F. and B.; afterwards G, being
sued for the purchase-money by an assignee of F. and B., a judgment
at law was obtained against him, and he filed his bill for an injunction, on
the ground that, since the rendition of the judgment, the heirs at law of D.
had obtained a judgment in ejectment against him for an undivided half
of the land, which judgment was in full force and unreversed : Held, that
there being no fraud on the part of F. and B., and it not affirmatively appear-
ing that they could not enforce their alleged equitable right to the tract, or
that it was any thing more than the naked legal title in the heirs of D. out-
standing against them, no sufficient ground was laid for the injunction.
Green v. M'Donald, 445.
25. It seems, however, as between the original parties it would have been other-
wise if the judgment in ejectment had been in favor of one having the para-
mount legal title, or if it had been made to appear, by proof, that there was
a perfect title in the heirs of D., both legal and equitable, so that F. and B.
could not coerce title from the heirs of D. and C. for G. Ib.
26. The case of Agricultural Bank v. Pallen, (8 S. & M. 359,) with reference to
the mode in which a judgment creditor should proceed with his execution,
where the debtor has alienated his property, since the judgment, to various
persons, cited and confirmed. Rollins v. Thompson, 522.
27. It seems that alleged fraudulent conduct, on the part of a sheriff about to sell
real estate under execution, by which he induced one interested in the sale not
to be present, under a promise that he would not sell, will not vitiate the sale
made by the sheriff to a purchaser for a valuable consideration without notice ;
yet if, in a bill against such purchaser and others, to set aside such sale, the
complainant allege the facts, and without specifically charging notice upon
the purchaser, states that they amount “ to a fraud upon his rights," such
general charge must be answered by the purchaser, or a decree will be ren-
dered for complainant. Ib.
28. In an application either for a specific performance, or for a rescission of a con-
tract, there must be no unnecessary delay. If the applicant has been negli-
gent, and there has been a change of circumstances affecting the contract in
any material features, the court will not interfere. When a rescission is
made, the court should restore the parties, as nearly as possible, to the situ-
ation they respectively occupied, at the time of making the contract; and if,
from the conduct of one of the parties, they cannot be placed in their original
condition, the court will not rescind at the instance and in favor of the party
who has been the cause of the failure. Johnson v. Jones, 580.
29. C. purchased a tract of land, and J. became his surety for the purchase-money;
the vendor transferred the notes; the purchaser became insolvent, and J. was
sued for the purchase-money. J. gave other claims in compromise of the
suit, but gave a guaranty for their collection. He was sued on his guar-
anty at law, made defence, and judgment was rendered against him. The
defence at law was a failure of consideration in the original sale to C. A
bill was filed setting up the same defence, connected with a charge of fraud
in the sale to C.: Held, that J., by the compromise, had precluded himself
from setting up the failure of consideration. Ib.
30. The chancery court will not have jurisdiction of a bill filed by one
claiming to hold certain lands of the husband exempt from the wife's dower,
to enjoin the widow from proceeding to enforce a decree she has obtained in
the probate court against the representatives of her husband, awarding her
dower in the lands claimed by the complainant; the right of the widow to
possession of her allotment of dower, was purely a legal one, to be enforced
by her by ejectment when it could be resisted by complainant.
Pickens v. Wilson, 691.
31. If a party sued at law had an opportunity of making his defence there, or
could have had it by proper pleading, he cannot afterwards be heard to make
it in a court of equity. Selser v. Ferriday, 698.
32. On the trial of the right of property levied on, under execution, the jury,
in assessing the value of the property, should be governed by its value at the
time of the trial; if the claimant, therefore, can show a depreciation in
value, he may do so; or he may show that it was legally taken out of his
possession by one having a paramount title. 16.
33. This showing must be made at law on the trial of the issue, by proper evi-