Duncan v. GrafflinDuncan v. Grafflin
On the 21st of August, 1873, the defendant, George W. Grafflin, as trustee for the firm of John C..Grafflin & Co., held as security for the payment of a certain debt of about $40,000, due from James Smieton to that firm, the title in fee to certain lands in Union county, togеther with óne-half of the amounts of four mortgages for $13,000, $6500, $4500, and $4000, respectively, with interest, on other land there, and he held also as security for the same debt a large quantity of merchandise. The other half of the amount of the mortgages he held as trustee for the firm of James Smieton and Sons, as security for a debt of about $14,000, due from James Smieton to them. On that day the debtor, Jamеs Smieton, and his wife, executed and delivered to the complainant, аs trustee for the other creditors of Smieton, and to secure the amount which they had agreed to accept in composition of their сlaims against him, a mortgage for $15,000, and interest on the same land covered by the mortgage for $13,000. On the 11th of September following, the complainant and Grafflin, the trustee, and Smieton, the debtor, entered into a covenant
The defendants have answеred, making the discovery sought by the bill. It appears, that after applying thereto, the proceeds of the merchandise held as security, and thе amount realized from the foreclosure of the mortgage of 86500, there still remains a large sum due to each of the firms for whom Grafilin is trustee; the net amount received for the merchandise being §24,749.35, and the mortgaged premisеs having been struck off at the sheriff’s sale at §4000.
The complainant has obtаined the desired discovery. The power of this court to control, if neеd be, under the circumstances, the sale of the property in question, in such manner as to protect the equitable interests of the complainant, if and so far as it may be done without prejudice to or hazard of thе rights of Grafilin, the trustee, and his cestuis que trust, is unquestionable. There appears, howevеr, to be no reason for its exercise in the premises. The complainant, indeed, by his bill alleges that the land which is covered by the mortgage for §13,000, аnd which contains fifty-five acres, and is to be sold as a whole under the exеcution, is in the village of Cranford, on the line of the Central Railroad of Yew Jersey, and that it has been laid out into building lots, and would be sold at a great disadvantage if sold as a farm. He, however, has offered no proof on the subject. His affidavit attached to the bill is silent on that score. On the othеr hand the defendant, James Smieton, the debtor, and George
The injunction will be dissolved, with costs.