4 Johns. Ch. 38 | New York Court of Chancery | 1819
The question is, whether the defendant, Slayter, be chargeable with notice of the bill, and supplementary bill, filed in 1809, by Temperance Green and others against Joseph Winter, and of the deeds referred to in those bills; and whether such notice, if any, rendered any payments made by him after that time, upon the bond and mortgage which he gave to Winter in 1808, void as against the plaintiffs.
There are two objections made to the application of the doctrine of the Us pendens to this case.
1. That it does not appear by those bills, in 1809, whether the lands sold to the defendant, and for which he gave his- bond and mortgage, were part of the property held by Winter in trust.
2. Nor does it appear, that it was any part of the object or subject-matter of the suit, to obstruct or divert the payment of that bond.
1. The defendant has denied notice in fact of the suit in 1809, or that Winter acted as a trustee, or held, as trustee, the lands which he sold to him. He says, that the first actual notice which he had of the trust, or of the suit, was
In none of those suits was it ever suggested, that the lands thereby affected did not appear, by the bills of 1809, to be trust property, or part of the matter in controversy. As the land in these cases was known and admitted to be trust property, and within the intention of the suit of 1809, the original bills were never made a subject of criticism, with a view to question or disturb that matter of fact. But the counsel have now raised a point not raised or discussed in the former suits; and it is contended, that it does not appear by the original bill in 1809, or the supplementary, or amended supplementary bill, that the lots sold by Winter in 1808, to the defendant Slayter, or the bond and mortgage taken for the purchase monejq were trust property, or any part of the subject matter of that suit. The defendant says in his answer, that when he purchased of Winter, he supposed he purchased of him in his own right. The purchase being prior to the suit of 1809, cannot be affected by it; nor do the plaintiffs question the payments which were made by the defendant to Winter himself, prior to the suit of 1809. There is no colour of equity to question either the sale or those payments. The object of this suit, is only to recover so much of the purchase money as the defendant paid to Winter's assignee, after the commencement of the suit in 1809.
The lands sold to the defendant, were lots 16 and 21, in the subdivision of great lots No. 83, 84, and 85, in Cosby's Manor, and the bill , of 1809 alludes, or refers, to several tracts of land in different places and counties, and among other parcels, it mentions “ divers lands in Cosby's Manor,” which had been purchased by William Green, and mortga
The argument in favour of the defendant is, that the doctrine of notice arising from the filing of the bill, is suificiently severe, and it is reasonable that a plaintiff who means to affect all persons with notice of the subject matter in controversy, and to prevent them from intermeddling with his right, should be obliged to state that subject or right with a certainty and precision not to be mistaken. That in this case the absolute certainty required and pointed out by the references in the bill, was to be found only in private conveyances not averred to be upon record, and to which a stranger had no legal right to demand access. On the other hand, it may be observed that when the defendant discharged his bond and mortgage in the hands of Winter’s assignee, he was told by the bill, that “ divers lands in
2. But-admitting the défendánt to be charged; at-the time he paid-the bond, with notice; as a debtor to the trust estate, of the contents of the original and'supplementary. bills, the next question is, did that notice create any just obstacle to his payment of the bond ? The object of the original bill was to compel Winter to account; and to recall out of his hands the trust lauds remaining unsold: The supplementary bill went further, and prayed that Winter might be restrained from assigning the securities-held in trust, and'that' they might be delivered up to the receiver who should be-
If a payment to Winter would have been good, when nothing more existed to prevent it than the filing of these bills, a payment to his order or assignee, must have been equally so. The debtor had nothing to do with the breach of the injunction by Winter, by the assignment of his bond and mortgage to Hunt, nor with the effect of the suit upon the right of Hunt to take such an assignment. The latter might be responsible to the plaintiffs for the money so received, and yet the payment on the part of the defendant be good; because the constructive notice, arising upon the supplementary bill, was addressed to the assignee, not to the debtor. If the rule was extended further, the debtors would
I am, accordingly, of opinion, that the plaintiffs have no right, in equity, to compel the defendant, Slayter, to the repayment of any part of the bond, and that the bill, as to him, be dismissed, with costs.
Bill dismissed.