2 N.J. Eq. 438 | New York Court of Chancery | 1841
The answer having been filed, T am now moved to dissolve the injunction heretofore issued in this cause. Upon this motion the whole merits of the case, as they appear upon bill and answer, have been discussed. The defendant claims to succeed in his application upon the case made by the bill itself, and if not, then upon the answer, as being a denial of the complainant’s equity.
The bill presents this state of facts. That in May, 1836, Aaron L. Middlebrook entered into an agreement with the defendant for the purchase of lands at Eiizabelh-Town, and in which purchase the complainant became interested with him. Before any deed was given, a company was formed to take the land in shares, and the complainant, not wishing to be one of the company, parted with all his interest., but never received any thing and has no expectation of ever receiving any thing for it. The complainant, under these circumstances, (his interest in the premises being gone,) was called upon by Middlebrook and Jonathan D. Williamson, (who had made up the company to take the land as before stated,) and requested to take a deed for the properly in his own name as a stake-holder or trustee for those interested in it, and they slated that the parties in interest desired him to do so. The complainant consented to this course, and the defendant accordingly called with a deed executed to him for the property, and at the same time produced to the complainant a bond and mortgage on the property, to be executed by him, for a part of the purchase money. The complainant at first objected to signing the bond, for the reason that he did not wish to bind himself for other men’s debts, but did so upon the defendant’s informing him “ that he need be under no apprehension of trouble or difficulty as to liability, as he would take the land or look to the land at any time for the balance of the consideration money, and that he was to receive the proceeds of the sales as fast as lots were sold, from the purchasers/’ There arc
The cases cited from 1 Brown's Chan. 92, and 2 Brown's Chan. 219, are very much alike, and bear strongly on this question. Upon settling the terms of an annuity it was agreed that it should be redeemable, but fearing that a clause for redemption, if inserted, might affect the transaction as usurious, it was omitted in the writing. Upon a bill filed to redeem, the evidence of the agreement to redeem was rejected, as being in opposition to the written contract. The lord chancellor said, If it was agreed not to insert the clause of redemption, evidence to that purport could not be given, but if it was left out by fraud, it might. In 4 Brown's Chan. 514, the case was, that a memorandum had been drawn up for a lease at a prescribed rent, omitting any thing about taxes, and when the lease was drawn the words “ clear of all taxes” were inserted. The court would not allow the lease to be corrected by the memorandum. The
Although counsel have argued the question as to the admissi.’
The defendant’s answer is next to be considered. I have carefully examined it, with the aid of the ingenious criticisms placed upon it by the counsel of the complainant, whose skill on this .subject I have often remarked, and I can still view it in no other light than as a broad denial of every main charge in the bill. The substance of the answer is, that the defendant agreed to sell the land to Middlebrook, and for a part of the purchase money was to have a bond secured by mortgage on the same premises. That he knew nothing of the arrangements between Middlebrook and tlie complainant, by which the latter w7as to take the deed and give the bond and mortgage, but he agreed to the substitution of the complainant at the request of Middlebrook, and from ■the knowledge that his security would thereby be increased. The answer denies that the defendant did at the time of the execution of the papers, or at any other time, agree to take back the land, or look to it for the balance of the consideration money, nor has the defendant any recollection or belief that the complainant in his presence objected to giving the bond, but after the papers were executed, and at the time they were exchanged, the complainant said to him, that he hoped he would look to the land first, before he called on him for the bond; to which the defendant assented, and has accordingly exhausted his remedy
Under these circumstances, shall this injunction be further continued ? This is a question which must always rest in discretion, and yet that discretion should not be arbitrary, but yield to well established rules. The equity may be answered and yet the court will continue the injunction to the hearing, and especially so if a dissolution would work a greater injury than a continuance of the process.
In view of all the circumstances as connected with this case, after thus far unfolding my present view's upon it, I consider it my duty not to dissolve the injunction at this lime, but to continue it to the hearing. The main question discussed on the argument does not really arise until the evidence is taken in the cause, and it would be in a measure prejudging a party thus to anticipate the .complainant on this part of the case. The complainant has further sought his remedy in this court, and if he 'fail here nlust fail every where; and if the injunction should be dissolved under the prayer as it now stands in the bill, and the defendant should go on with his suit at law and obtain a judgment, though a decree should finally pass for the complainant, it would come too late. I incline, therefore, to give the complainant a fair and full hearing on the merits of his cause, and Opt to embarrass and defeat the object of his suit by a decision
The injunction continued to the hearing, and the costs to abide the final decision.