Sharp v. Shea.

accounts, it is not within the description of the advances which he intended should be deducted.

Of course the son is to be required to pay what he owes the estate over and above the amount of his share.

A purchaser of lands at a sheriff's sale under a judgment recovered against a debtor who had given a prior mortgage on such lands, which had never been registered and of which the judgment creditor had no notice but of which such purchaser had actual notice, takes the title free of the lien of such mortgage.

Bill to foreclose. On final hearing on pleadings and proofs.

Mr. A. A. Clark, for complainant.

Mr. J. W. Davis, for defendant Prall

THE CHANCELLOR.

The question in this case is, whether the complainant's mortgage is valid against the title of the defendant Prall to the mortgaged premises. Prall purchased the property in January, 1874, at a sale under an execution issued on a judgment recovered November 5th, 1873, in Somerset circuit court, by James Hays against the mortgagors, one of whom, Anastasia Shea, was, at the time of the recovery of the judgment, the owner of the premises. The mortgage was given in May, 1872, but was not registered until May 18th, 1876. Hays, the judgment creditor, had no notice of it. It, therefore, was not valid against him. The statute

Sharp v. Shea.

provides that every deed of mortgage or conveyance in nature of a mortgage, of or for any lands, tenements or hereditaments, executed after January 1st, 1821, shall be void and of no effect against a subsequent judgment creditor or bona fide purchaser or mortgagee for a valuable consideration, not having notice thereof, unless recorded or lodged for record at or before the time of entering the judgment or recording or lodging for record the subsequent deed or mortgage. (Rev. p. 706 § 22.) The sheriff's deed to Prall vested in him as good and perfect an estate in the premises as the Sheas were seized of or entitled to at or before the time when the judgment was entered, as fully to all intents and purposes as if they had sold the property to him and had received the consideration money, and signed, sealed and delivered the deed. (Rev. p. 1043 § 7.) And it vested the estate in him free from the complainant's mortgage, because the judgment creditor had no notice of that mortgage. Rutgers v. Kingsland, 3 Hal. Ch. 178; S. C. on appeal, Id. 658; Coleman v. Barklew, 3 Dutch. 357. And it makes no difference whether Prall had notice of the existence of the mortgage or not. Rutgers v. Kingsland, ubi supra; Holmes v. Stout, 2 Stock. 419. It is obvious that, unless the protection of the statute is to be extended to the purchaser at the execution sale, the judgment creditor cannot have the full benefit of the statute. There is no proof, however, that Prall had notice, but the evidence is to the contrary. There is some evidence (the testimony of the complainant alone) that he paid interest on the mortgage in 1875, but he expressly and explicitly denies it. The complainant swears, also, that in 1876, Prall said the mortgage was a good one, but the latter positively denies this. Another witness testifies that, in 1875, Prall told him there was a mortgage of one hundred and fifty dollars (the amount of the complainant's mortgage) on the property. This Prall denies, also. But if he made these statements in 1875 and 1876, and paid the interest in the former year, it was all after the sale; and these things do not prove that he had notice of the mortgage

Central R. R. Co. of N. J. v. N. J. West Line R. R. Co.

at the time of the sale, which was in January, 1874. But, as before stated, it makes no difference whether he had notice or not.

The bill will be dismissed, with costs.

THE CENTRAL RAILROAD COMPANY OF NEW JERSEY and others

v.

THE N. J. WEST LINE RAILROAD COMPANY and others.

Complainants put to election between two suits pending, one in this court and the other in the circuit court of the United States for this district.

The latter court is not a foreign court.

A party may be compelled to elect between a suit here and one in a foreign court.

One of several defendants may call for such election after he has answered.

That there are parties, both complainant and defendant, in this suit in this court, who were not parties in the suit in the federal court, will not prevent this court from requiring such election, where the object of both suits and the relief sought are, in the main, identical.

Such election may, after answer, be enforced by order, upon motion. Complainants required to elect within eight days after service of the

order.

Bill for relief. On motion that complainants elect.

NOTE.-Disagreement among the cases has arisen from the application rather than from any question as to the soundness of the rule, that where a party has two remedies for a wrong, and attempts to pursue both simultaneously, the court, on the defendant's application, will require him to elect which one to prosecute. As concurrent suits

at law and in equity. Simpson v. Sadd. 16 C. B. 26; 3 N. J. L. J. 67; Gamsby v. Ray, 52 N. H. 513; Laraussini v. Carquette, 24 Miss. 151; Cocke v. Dotson, 1 Tenn. 171; Pittsburgh R. R. v. Mt. Pleasant R. R., 76 Pa. St. 481; Singer v. Scott, 44 Ga. 659; Rogers v. Hoskins, 15 Ga. 270; Blair v. Cary, 9 Wis. 548; Cole v. Flitcraft, 47 Md. 312. See Kirby v. Jackson, 42 Vt. 552.

Central R. R. Co. of N. J. v. N. J. West Line R. R. Co.

Mr. John P. Stockton, Attorney-General, Mr. R. Gilchrist and Mr. T. N. McCarter, for the motion.

Mr. F. T. Frelinghuysen and Mr. B. Williamson, contra.

THE CHANCELLOR.

The bill was filed in 1879, by The Central Railroad Company of New Jersey, The American Dock Company, Francis S. Lathrop, receiver for the creditors and stockholders of the former company, and John C. Van Horne, against The New Jersey West Line Railroad Company, Williain L. Larned, receiver for the creditors and stockholders of that company, The Trustees for the Support of Public Schools, Asa Packer, Lloyd Chamberlain and others. Its object is to obtain relief against a certain grant of land under water, made by the state to the West Line Railroad Company. That company, and its receiver, are made parties because of the interest of the former as grantee, and the Trustees for the Support of Public Schools, because of a mortgage held by them, given for part of the consideration money of the grant. Under a decree of foreclosure of that mortgage,

The rule applies to suits for penalties. 174; State v. California Co., 13 Nev. 289. Marsh. 184; Jones v. Clay, 1 Bos. & P. 191.

Com. v. Churchill, 5 Mass. See Com. v. Gilbert, 6 J. J.

It has been held that a suit at law could not be stayed on account of a pending suit in equity (Murphy v. Cadell, 2 Bos. & P. 137; Blanchard v. Stone, 16 Vt. 234; Peak v. Bull, 8 B. Mon. 428; Humphries v. Dawson, 38 Ala. 204; Williamson v. Parton, 18 Gratt. 475); nor a suit in chancery, on account of a pending action at law (Black v. Lackey, 2 B. Mon. 257. See Davis v. Salter, 2 Cr. & J. 466; Ins. Co. v. Brune, 6 Otto 588).

An exception to the rule is, that a mortgagee may foreclose his mortgige and sue on the bond at the same time (Jones on Mort. 12151220; Copperthwait v. Dummer, 3 Harr. 258; Morgan v. Sherwood, 53 I!!. 171); although, as Chancellor Cooper says, in Franklin v. Hersch, 3 Tenn. Ch. 469, the reason of the exception is nowhere clearly stated; and in Onderdonk v. Gray, 4 C. E. Gr. 69, Chancellor Zabriskie denied a complainant his costs on foreclosure; and in some cases such double remedy has been refused altogether (State Bank v. Wilson, 9 Ill. 57).

There are other occasional exceptions which allow both remedies Lee v. Long, Wightw. 72; Haskins v. Lombard, 16 Me. 140; Kittredge v. Race, 2 Otto 116; Fisk v. Union Pac. R. R., 8 Blatch. 299; Erans v. Single,

Central R. R. Co. of N. J. v. N. J. West Line R. R. Co.

obtained in this court, the premises in question were sold, December 26th, 1878, and at the sale were purchased by Lloyd Chamberlain. The sale was set aside on the ground of surprise.

The bill, according to its own statement, is filed to have the sale perpetually enjoined, and to have the grant declared invalid and void, to restrain any one claiming or to claim thereunder from setting up such title against the complainants, and from disturbing the complainants in their possession of the property, and to remove the cloud which the grant casts upon the complainants' title.

On the 10th of January, 1876, a bill in equity was filed in the circuit court of the United States for the district of New Jersey, by John Taylor Johnston, claiming, as grantee of the Central Railroad Company, and the Dock Company, against the West Line Railroad Company, the Trustees for the Support of Public Schools, and William L. Larned, receiver, for relief against the grant and the mortgage. In that suit a preliminary injunction was obtained, on the 5th of May, 1876, prohibiting the defendants therein from proceeding to sell the premises, and from disturbing the

55 Ill. 455); as an admiralty lien and suit for the debt (Yeo v. Tatem, L. R. (3 P. C.) 696, and cases cited; Russell v. Alvarez, 5 Cal. 48; Granger v. Judge, 27 Mich. 406, and cases cited; The Mali Ivo., L. R. (2 Ad. &. Ec.) 356; The Kaloram, 10 Wall. 204; and see Wood v. Fithian, 4 Zab. 838; Sawyer v. Eastern Co., 46 Me. 400) or bringing an action for matters previously submitted to an arbitration which is still pending (Knaus v. Jenkins, 11 Vr. 288).

:

As to concurrent remedies on other liens, see Embree v. Hanna, 5 Johns. 101; American Bank v. Robbins, 99 Mass. 313; Thielman v. Carr, 75 Ill. 385; Barker v. Amark, 3 Beav. 64; Hecker v Mitchell, 6 Duer 687; Lawrence v. Remington, 6 Biss. 44; Wurtz v. Hart, 13 lowa 515; Monroe v. Castleman, 3 A. K. Marsh. 399.

As to a special or qualified election, see Franklin v. Hersch, 3 Tenn. Ch. 467; Thompson v. Graham, 1 Paige 452.

A suit in a foreign court, however, does not always compel the plaintiff to elect (West v. McConnell, 5 La. 424; Chatzel v. Bolton, 3 McCord 33; Barnes v. Willett, 19 How. Pr. 566: Davis v. Morton, 4 Bush 442; Grider v. Apperson, 32 Ark. 332; Allen v. Watt, 69 Ill. 655; Williams v. Ayrault, 31 Barb. 364; Osgood v. Maguire, 61 Barb. 54; Burrows v. Miller, 5 How. Pr. 51; Smith v. Lathrop, 44 Pa. St. 326; Humphries v. Dawson, 38 Ala. 199; De Armond v. Bohn, 12 Ind. 607; Yelverton v. Conant, 18 N. H. 123;