1 Del. Ch. 35 | New York Court of Chancery | 1818
upon examination, at some length, of the agreement of February 1Ó, 1787, concluded that Neill was bound by it to pay the whole debt' of Shields ; and proceeding to consider whether the administrators had, in equity, any remedy under the agreement against Neill’s executor, the Chancellor said :
The defendant, Shankland, contends that the administrator of Shields, and that Wright, the sheriff, were not parties to the agreement of 10th of February 1787; and, therefore, that there is no privity between the com
That Shields’ representatives had a remedy at law against the sheriff for the balance of the sales of the land of John Little, after the payment of Neill’s judgment, is too plain a proposition to be denied. Neill bad recovered the first judgment, Shields’ administrators the second; and consequently after the payment of Neill, the whole real estate of John Little was bound for this judgment of Shields’ administrators. And at law, the Sheriff was liable for having applied any part of the purchase money arising from Little’s real estate to the Messrs. Fisher or to Warden, in preference to Shields’ administrators; but it would be monstrous in a court of equity to allow Neill to make such a defence in violation of his agreement of February 1787; and that too, after he has received the full benefit of that agreement. What would be the consequence ? It would be this—Shields administrators must sue the sheriff; the sheriff must sue the Messrs. Fisher; and they must enforce at law the agreement of 1787 against Neill. Thus, a circuity of action must be produced, and justice could not be done. Such a course would be manifestly unjust; because,as nothing could be recovered at law, more than the nominal sums given for the several parcels of the land, the full amount of Shields’ judgment, which
In speaking of privity, it may be necessary to take a very slight view of Hses at Common Law, as connected with this subject. To the execution of a Use two things were absolutely necessary,—confidence in the person and privity of estate. All who came in, in privity of estate, or with notice, or without consideration, are bound by it. And in 1 Co. Rep. 122. b., it is said that although a stranger purchased land from a feoffee to uses for a valuable consideration, yet if he had notice of the former uses, he would be compelled to execute them. According to 2 Com. Dig. Title Chancery, 627. (4. c) ; Title Notice (4. c. 1), notice of a trust makes a person privy; as, a person with notice of a trust, judgment,mortgage or other incumbrance, shall be affected by it. Sec. 1 Eq. Ca. Ab. 332 : 2 Com. Dig. 627, 717.
How, it is evident that Heill had complete notice of this judgment of Shield’s administrators; that he engaged to pay it; that he purchased the land subject to this judgment : and that the advantage or convenience which he derived from being allowed to purchase as he did was a sufficient consideration in equity. The question then occurs, whether Shields’ administrators have any remedy in equity. The counsel for the complainant cited the case of Dutton vs. Dutton, 2 Eq. Ca. Ab. 739. p. 4. There, D, having more than £3,000 per annum, married M, the
It is not easy to distinguish, in principle, the difference between the right of the wife in this "case of Dutton vs. Dutton, and the right of Shields’ administrators to sue in equity. In both cases the covenantors made an engagement for the benefit of a person not a party to the covenant, and as they both received a sufficient consideration it is quite as reasonable that ifeill should be considered in the nature of a trustee for Shields’ administrators, so far as to pay the judgment, as that J should be a trustee for the maintenance of the wife. The counsel for the complainant cited also Lechmere vs. Carlisle 3 P. Wms. 211, to this effect, that every cestui que trust, whether a volunteer or not, or be the limitation under which he claims with or without a consideration, is entitled to the aid of a court of
This case pointedly supports the complainant in sustaining his suit to recover money.directly to himself, of which he was to be the ultimate receiver. And it may be remarked that the plaintiff, Nathaniel Russell, was not a party to the assignment made to Loomis and Tillinghurst; neither was it a trust to pay immediately to him any money, but only “ to pay to Joseph and Wm. Russell all such “ monies as they shall be liable to pay as guaranty as “ aforesaid to Nathaniel Russell (the complainant) upon “ bills.” There, the trust was for the indemnity of J. and W. Russell on account of such monies as they shall be liable to pay to Nathaniel Bussell. But as the trust was ultimately for the benefit of Nathaniel Russell, although he was no direct party to the assignment (or deed of trust,) it was the opinion of the Court that the purposes of equity would be best effected by decreeing a payment of the money directly to him. In the case before us, Neill promises to make a direct payment to Shields’ administrators; and on this agreement, I have no hesitation, upon the above authorities, and upon the reason and justice of the demand, to decree payment to Shields’ administrators.
Afterwards the amount due on the judgment of Luke Shields’ administrators against John Little’s executor was ascertained, and a decree for its payment entered against the executor of Henry Neill, deceased.
lst. Vol. Del. Laws, 132 : Digest of 1829, p. 103, sec. 25, passed between 1726 and 1736. This act expressly prohibits the old Court of Common Pleas, in which equity jurisdiction was then vested, from entertaining any matter for which there was remedy at common law.