complainant took the assignment he was told by the president that he, the president, considered the property would be worth $20,000 when in operation; that if he, the complainant, had the money to spare he could not put it out more safely; that they were anxious to get the money and have the works in operation, and that if they could obtain the money on the bond and mortgage they would be able to put the works in operation. After this, the complainant took the assignment of the bond and mortgage, and in exchange, or alleged exchange therefor, made a deed of leasehold property in New York to a son of the obligee; and the complainant produced in evidence a certified copy of a mortgage made by the son to one Morgan, dated August 23, 1842. There was no evidence given to show when the assignment to the complainant was delivered, or the deed to the son; whether on the day the mortgage was made by the son or not; but it appeared that an assignment of the bond and mortgage was left by the obligee in the office of the clerk of Somerset on the 1st of August, 1842, and recorded after the 9th of August, 1842. No account was given of the mortgage made by the son, except that the witness of the complainant who produced the certified copy of it stated, that he had seen it in New York the morning of the day of his examination, in the hands of one Edward P. Clark, and that "he could not get the original out of the office, they refused to let him have it." Held, that the complainant could not be considered a bona fide purchaser of the bond and mortgage for consideration paid; and Held, further, that the information he received from the president was sufficient notice to overcome the evidence offered of bona fides, if that had been sufficient to show it. COSTS. Vide Frauds by Incorporated Companies. ib. 1. On bill by a wife, by her next friend, against her husband for alimony and maintenance, a motion on the part of the defendant that the complainant file security for costs was denied. Ballentine v. Ballentine. Vide Set off, 1. 519 COURT OF ERRORS AND APPEALS. Vide Appeal, 1—5. CREDITORS' BILL. Vide Set off, 1. D. DECREE. Vide Evidence, 3. Practice, 4. DEED. Vide Land, 1. Delivery, 1, 2, 3. Executors and Administrators, 6. DELIVERY. 1. The possession of a mortgage, obtained from the clerk's office by the person named therein as mortgagee, without the consent of the mortgagor and after he had refused to deliver the bond to secure which the mortgage was given, is no evidence of the delivery of the mortgage. The Commercial Bank of New Jersey v. Reckless. 430 2. To constitute the delivery of a deed the grantor must part not only with the possession but with the control of it and deprive himself of the right to recall it. ib. 3. To make the leaving of a deed by the grantor with the clerk for registry and the registration thereof a good delivery to the grantee, it must be left for the grantee, or with such directions from the grantor as to amount to a delivery and authorize the grantee to take it from the clerk. ib. 4. Allegation of the delivery of a bond and mortgage not sustained by evidence. ib. 5. The possession by a mortgagee of a mortgage executed and recorded is, in itself, cogent evidence of delivery. Commercial Bank v. Reckless. 650 6. The answer of a mortgagor to a bill of foreclosure denying the delivery of the mortgage is not, in itself, sufficient to overcome the presumption of delivery arising from the possession of the mortgage by the mortgagee duly executed, acknowledged and recorded. ib. 7. What evidence held sufficient of the delivery of a mortgage, though the bond to secure which the mortgage was given was in the possession of the obligor. Vide Husband and Wife, 5. DEVASTAVIT. Vide Legacy, 2, 3. DEVISE. Vide Prerogative Court, 6. Will. DEVISEES. Vide Heirs and Devisees. DISTRIBUTION. Vide Prerogative Court, 3. DOWER. Vide Will, 1, 2. E. ENROLLMENT. Vide Practice, 4. ESTATE. Vide Trust and Trustee, 2, 3. EVIDENCE. ib. 1. Parties are confined to the case made by the pleadings; and evidence to facts not put in issue cannot be read. Ex'r of Cavalier v. Huffman. 354 2. Testimony in disproof of a fact confessed by the pleadings cannot be considered. ib. 3. A decree against executors, in a suit against them, is no evidence in a subsequent suit against the devisees of the existence of the debt. Adm'rs of Hazen v. The Heirs and Devisees of Tillman. 363 4. What proof held satisfactory of the existence, genuineness and loss of a receipt or acquittance from a deceased Williamson v. Adm'rs of Johnson. 537 person. 5. It is not competent to show by parol that at the time of executing a bond the obligee agreed that the obligor should not be personally liable, but that the obligee would look, for payment, to the mortgage given to secure the bond. Chetwood v. Brittan. Vide Pleadings, II. 11. Husband and Wife, 3. EXECUTORS AND ADMINISTRATORS. 628 1. A note given to a testator in his lifetime, by one who was appointed a co-executor of his will, was inventoried by the two executors as a part of the assets of the estate; and in a joint account settled by the executors in the orphans' court they charged themselves with cash received on the said note in full. Held, in the absence of any explanation, that both executors were liable to the residuary legatees for the whole balance struck against them in the said joint account. Wilson v. Ex'rs of Fisher. 493 2. A note given by one of the said executors to a legatee, on account of his share of the residue, which note was not paid, but which the other executor set up as a payment, was held to be no payment. ib. 3. One of the executors paid four shares in full, to four of five residuary legatees, and a part of the fifth share to the other legatee; and on a bill filed by the latter against the executors for the residue of his share, set up that he had paid out all he had in his hands of the balance found by the said joint account, and that the other executor, who had since become bankrupt, had received enough of the said balance to pay what remained due the complainant. Is this a defence? ib. 4. It is not necessary to tender to executors a refunding bond before filing a bill for a legacy. ib. 5. J. C. died March 15th, 1833, leaving a will by which he ordered all his debts to be paid, and gave and bequeathed to his widow all his estate, real and personal, during her natural life or widowhood, and appointed her sole executrix thereof; the will containing no devise or bequest of the estate after her death. The testator left a grandson his only heir at law. The widow and the grandson and his family occupied the dwelling-house and lands, and converted the personal property to their own use. On the 24th July, 1834, the widow and the grandson and his wife conveyed all the real estate to T. B. S. On bill filed by a creditor of the testator attacking the bona fides of the sale, and the answer and proofs in the cause, the deed was declared void, and the lands held liable for the complainant's debt. Ex'r of Cooper v. Cooper. 498 6. An executor with power to sell land exposed the land for sale at public vendue on the 11th of March, 1789, and no person bidding what he thought a sufficient price, requested his son to bid for it, and the son accordingly bid $5 25 per acre. The executor postponed the sale on that bid, and gave notice that if any person would come forward and give more he would sell the land to the person offering the best price, and that if no person offered a better price within a reasonable time, he would sell the same for the sum so bid by his son. No subsequent day was fixed for further biddings. On the 9th of August, 1792, the executor conveyed the land to his son, at the sum so bid by him, and the son, on the next day, reconveyed the land to his father, the executor. No consideration passed, nor any security for any consideration, on either conveyance. The conveyances were set aside as fraudulent; and it was ordered that the land be sold under the direction of a master, and that the proceeds be brought into court. Williamson v. Adm'rs of Johnson, 537 7. The land was sold in 1812, under the direction of a master, and the proceeds brought into court. It was then ordered that the proceeds be paid to the executor on his giving bond with surety conditioned for the performance of the trust reposed in him by the will, (by which the proceeds were to be equally divided among the five sons of the testator, of whom the executor was one.) The executor, after receiving the proceeds, died, and administration of his personal estate was granted. In 1820, one of the five sons died, and the administrator of his personal estate caused a suit to be prosecuted against the surety on the said bond, to recover the share of the said deceased son; and in February, 1822, recovered final judgment for $2202 46. Pending the said suit, by deed dated June 5th, 1821, the surety, with his wife, conveyed his real es tate to his son and daughter; the consideration expressed in the deed being $10,000; the deed containing full covenants. This deed was acknowledged September 29th, 1821, and recorded October 1st, 1821. Execution was issued on the said judgment, and in May, 1823, all the right, title and interest of the said surety in the real estate he had so conveyed was sold by the sheriff, on the said judgment against the surety, and the surety's said son and daughter bid $3000 for the same, and it was struck off to them. The money was paid to the sheriff by them, or one of them; and the sheriff paid, thereout, to the administrator of the said deceased son the full fifth for which the said judgment had been obtained. In March, 1824, the administrator of the executor and the surety filed a bill of review, alleging errors in the decree setting aside the deed made by the executor in August, 1792, and setting up on the part of the surety, that the executor had paid to the said deceased son, in April, 1792, a sum equal to a fifth part of the sum at which the land had been struck off by the executor to his son, in March, 1789, and had obtained the acquittance and discharge of the said deceased son for his share in full; and praying divers matters on the part of the said administrator of the executor, and praying on the part of the surety that the said judgment against him be set aside, and that the administrator of the said deceased son might repay to the said surety all monies received by him over and above what should have been received by him for the share of the said deceased son. To this bill a plea and demurrer were filed, which were allowed, on the 15th October, 1827; and an order was then made giving leave to amend the said bill by striking out the name of the administrator of the executor as complainant, and the names of all the defendants except that of the administrator of the deceased son, and so much of the said bill as seeks a review of the said decree, so as to confine the object of the bill to the relief sought by the said surety against the said judgment and execution obtained against him on the said bond. On the 28th January, 1828, the surety filed his bill confining the relief he sought as directed in the said order. In October, 1843, upon the report of a master, (to whom the matter had been referred by an interlocutory decree,) stating that on the 2d April, 1792, the executor had paid the deceased son $350 66, and that the excess of the judgment against the surety over the amount due at the time of the judgment, on the share of the said deceased son, with interest on such excess, amounted to $2256 00, a final decree was made by the chancellor for that sum against Asher Williamson; (he was the administrator of the deceased son ;) and that execution issue therefor against the goods and chattels, lands and tenements of the said Asher Williamson. On appeal to the court of errors and appeals, the decree was affirmed. Williamson v. Adm'rs of Johnson. 537 8. If an executor receive the effects of his testator and does not apply them in due course of administration, his estate is liable; and his executor may be called upon in equity to pay the legacies in due course of administration of the assets which came to his hands. Ex'r of Moore v. Smith, 649 Vide Husband and Wife, 4. Specific Performance, 3. Evidence, 3. Legacy, 2, 3. Will, 5. Pleadings, Answer, 6. |