and Joseph Kingsland are judgment creditors without notice, and that as against them, or a purchaser claiming by virtue of their judgments, the mortgage cannot be reformed.
A large minority of the court are of opinion that the recitals in the deed from the master to Charles Mix and the proceedings in the cause by virtue of which that deed was executed are constructive notice, not only to Charles Mix, but to all persons claiming under him either as bona fide purchasers or judgment creditors; that consequently both the judgment creditors and the purchaser are affected with notice.
5. The court are further of opinion, that after a decree of foreclosure and sale of the mortgaged premises as actually described, the mortgage cannot be reformed and a sale made of an additinal quantity of land alleged to have been omitted in the description contained in the mortgage. And inasmuch as it appears by the admission of counsel, that the premises sold under the original decree have been conveyed by the sheriff to the complainant, and by the complainant to a third party, the original decree of foreclosure cannot be opened, nor can the complainant have the relief prayed for in her bill. And upon this ground the court are of opinion that the decree of the Chancellor must be affirmed, with costs.
In this opinion Carpenter, Randolph and Ogden, Justices, and Risley, Porter, Wills, Schenck and Cornelison, Judges, concurred. Nevius, Justice, and Valentine, Judge, dissented.
ABSENCE. Vide Injuncton. 6:
ACCOUNT. Vide Guardian and Ward, 1. Executors and Ad-
ministrators, 3, 4, 5, 6,
ADVERTISEMENT (OF SALE.) Vide Sale by Sheriff, 3.
1. The oath of a Jew complainant to an injunction bill must
be made according the form and solemnities of the Jewish
religion. Newman v. Newman,
Vide Judgment by Confession, 1, 2.
AFFIRMATIVE. Vide Pleadings, Bill of Interpleader, 3.
1. On the question of the mental capacity of a party to make
a division with his co-partner and co-tenant of a large per-
sonal and real estate, the unconscionable character of the
division will be considered in aid of the proof of incompeten-
cy. It is not necessary that a party should have been ab-
solutely non compos to entitle him to relief in such a case.
Doughty v. Doughty.
2. One of the parties to deeds dividing a large personal and
real estate between them had been by long intemperance
and severe sicknesses, producing frequent convulsions, re-
duced to a very low state of weakness of body and imbecility
of mind. The other party was his elder brother, who had
long been a partner in business with him, and thus in a rela-
tion to exercise great influence over him; and the bargain
was such as no honest or fair man would think of proposing
or ought to be willing to accept. The deeds were declared
to be fraudulent and void.
3. Relief in such cases does not depend on the question wheth-
er the precise degree of imbecility charged in the bill is
proved. Imbecility calling for relief under the circumstances
may be proved, and acted upon by the court, though it be
not the degree of imbecility charged in the bill.
Ib.
4. A. B. C. and others were constituted a body corporate, with
a certain capital to be divided into shares, and authorized to
construct a railroad or McAdamized road. A loan becoming
necessary to complete the road, it was resolved, at a meet-
ing of the Directors and stockholders, that the Company
should borrow a certain sum. The money could not be
borrowed on the credit of the Company, and A., B. and C.
borrowed the money on their own individual credit, and ad-
vanced it as a loan to the Company; and the Company, to
secure the re-payment thereof, with interest, executed to A.,
B. and C. an obligation conditioned for the payment of said
sum in five years, with interest semi-annually, and a mortgage
of all the lands contained within the bounds of their road as
located, graded, &c., and all the materials of which said road
was constructed, and the appendages thereof, and all divi-
dends, proceeds and profits which might thereafter be de-
clared or accrue from the use of the road. And the Com-
pany, by a clause in the mortgage, covenanted that the
proceeds and profits arising from the road should be applied,
in the first place, at the end of each half year from the date
of the mortgage, to the payment of the half year's interest.
And in order to indemnify A., B. and C. against more than
their proportionate part of any loss that might accrue by
reason of any insufficiency of the mortgaged property
to pay the sum so loaned, certain other stockholders of
the Company, together with A., B. and C., entered into
an agreement under seal by which the said other stock-
holders agreed with A., B. and C. that if the mortgaged prop-
erty should be insufficient to pay the said sum and interest,
so that any loss or deficiency should happen, each of them
and each of the said A., B. and C. should bear an equal por-
tion of such loss or deficiency; and that if any of them
should, before or at the time such loss or deficiency should
be ascertained, become or be unable to pay his proportion.
ate share thereof, then such of them as should remain solv
ent and able should sustain such loss equally with the said
A., B. and C. And they further covenanted and agreed, to
and with the said A., B. and C., that if the mortgaged prop
erty should prove insufficient to pay said sum and interest,
so that a loss or deficiency should happen, then they, their
executors &c. would forthwith pay such sum to A., B. and
C., their executors &c. as would divide said loss or deficien.
cy between such of them as remain solvent at the time such
loss or deficiency should be ascertained, and that the said
A., B. and C., severally, should bear an equal part of such
loss.
The mortgage becoming payable and remaining unpaid, A., B.
and C. filed their foreclosure bill, and obtained a decree for
the sale of the mortgaged property; and it was sold by the
Sheriff. The amount of the sales was insufficient to pay
the mortgage; and the amount of the deficiency was ascer-
tained by and on the day of the sale.
A., B. and C. filed their bill, charging, that certain of the par-
ties to the said agreement (naming them) were, at the time
when such deficiency was ascertained, unable to pay their
respective portions thereof; and that certain other parties to
the said agreement (naming them) remained and were solv
ent and able to pay their respective proportions of such de-
ficiency, and were the only parties to the said agreement,
other than the complainants, that remained and were solvent
and able as aforesaid; and these last named persons only
were made defendants in the bill.
The bill prayed that the defendants might discover whether
they were solvent and able to pay their respective propor-
tions of the deficiency, or any part and how much of their
said proportions; and that they might be decreed to bear
the said loss and deficiency equally with the complainants;
and that if it should appear by the said discovery, or other-
wise, that at the time when said deficiency was ascertained
any or either of the defendants was unable to pay his pro-
portion, then, that such of the defendants as then were solv.
ent and able might be decreed to pay to the complainants
their respective proportions of the deficiency.
The construction of the agreement was held to be, that the
loss which should accrue, either from the deficiency of the
mortgaged premises or from inability in any of the parties
to the agreement to pay their full proportion of the deficien.
cy, should be borne equally by such of the parties to the
agreement as should be able to bear an equal proportion of
such whole loss with each of the complainants; and that,
therefore, all the parties to the agreement, other than the
complainants, should have been made parties defendants in
the bill. Black v. Shreeve.
Held, that the complexity of the said agreement and the mul-
tiplicity of suits it might give rise to at law were grounds
on which a court of equity might entertain a bill for the ad-
justment of the contribution called for by the agreement in
one suit.
Ib.
One of the subscribers to the said agreement had died, after
the amount of the deficiency was ascertained, leaving a
will, of which C., D. and E. were appointed executors. C.,
in his individual capacity, was a complainant in the bill, and
D. and E., the other two of the said executors, were made
defendants as such executors.
Held, that it was not necessary that C. should be made a de-
fendant as one of the said executors.
Ib.
Held, that the terms of the said mortgage required a sale un-
der it of whatever could be sold under it; and that such
sale and the proceeds of it fixed the amount of the defi
ciency.
AMENDMEMT. Vide Fraudulent Conveyance, 3.
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