purchaser, with notice of such subsequent mortgage or
deed, his release will operate as a discharge of his lien, to
the extent of the value of the land released. Cogswell v.
Stout,
240
4. Actual notice need not be shown in such a case; it is
enough if notice of sufficient facts out of which the sub-
sequent equity arises, is brought home to the mortgagee
to make it his duty to inquire before acting. Id.,
5. Mere possession, standing alone, without the mortgagee's
knowing who has possession, and without notice of any
facts which should provoke inquiry, will not amount to
notice. Id.,
6. In the absence of express notice or anything to excite
inquiry, a mortgagee has a right to presume that affairs
remain as they were when his mortgage was executed,
and that his mortgagor still continues to be the owner
of the mortgaged premises. Id.,
7. As a general rule, a mortgagee is not chargeable with notice,
by construction, of rights acquired in the mortgaged
premises subsequent to the execution of his mortgage.
Id.,
See LICENSE, 4, 5; MORTGAGE, 2; PRACTICE, 11.
1. The orphans court is not limited to a single adjournment
of the hearing of a rule to show cause why lands should
not be sold to pay debts; and an order for such adjourn-
ment may, on due notice, be revoked, and the hearing
brought on. Parker v. Reynolds,
See APPEAL; EXECUTORS, 1; LEGACY, 5.
1. A father is bound to support his infant child, if of sufficient
ability, even though the child may have an ample estate
of its own; but if the father is not able to support his
child, or not able to support it according to its station
and expectations, a court of equity may appropriate its
own estate to its support. Stephens v. Howard,
244
2. Where a legacy is given to an infant unconditionally, so
that it vests at once, but is payable when it attains
twenty-one, or at any other future time, and its father is
Parent and Child- Continued.
not able to support it, and the interest arising from the
legacy is not sufficient for that purpose, a court of equity
may, in advance of the time fixed for payment by the
will, order the principal of the legacy applied to the sup-
port of the legatee. Id.,
3. Such an order should, however, only be made after a refer-
ence and upon satisfactory proof of such facts as clearly
show that it is necessary. Id.,
4. On the distribution of an intestate's estate, after his death
in 1874,-Held, that the claim of his granddaughter
Rachel (daughter of his deceased daughter) to a share,
could be resisted by proof of the illegitimacy of her
mother, notwithstanding intestate's recognition of Ra-
chel's mother as his daughter by an entry in his family
Bible, and, also, in other ways; and notwithstanding,
also, that intestate, his wife and daughter (Rachel's
mother) are all dead, and that Rachel's mother's legiti
macy was never questioned until after the death of her
father and mother and herself, and not until the intes-
tate's (her father's) estate was about to be distributed.
Bussom v. Forsyth,
5. On account of her husband's abuse of marital rights, a wife
left him, in November, 1875, taking with her their two
children. Her petition for a divorce, on this ground,
was denied, upon his promise of conjugal kindness there-
after. The wife, however, refused to return to his home,
with her children, notwithstanding his overtures and
entreaties.-Held, that the wife's acts were not "miscon-
duct," within the meaning of the statute, sufficient to
take away from her the possession of the children, the
boy being now about eleven and the girl nine years of
age; the mother being capable and willing to support
and educate them, and the children preferring to remain
with her. English v. English,
See EVIDENCE, 1, 2; GUARDIAN, 3; LEGACY, 6-8; WILLS, 1.
Parties.
1. A son, who was also one of the administrators of his father's
estate, filed a bill for the specific performance of a con-
tract to convey a house and lot to him, alleged to have
been made by his father, in consideration of his services.
He made defendants to the bill his brothers and sisters,
as his father's heirs at law, and, also, his father's widow,
as a co-administrator.-Held, that the widow, as an admin-
istratrix, represents the creditors, since the lands in ques-
tion may be needed to pay decedent's debts, and hence
she is a proper party. Colfax v. Colfax,
2. When a change occurs in the officers of a corporation
between the time it is brought into court and the time
when its answer is filed, the answer inust be filed by the
persons who are officers at the time of the filing. Mechan-
ics National Bank of Newark v. Burnet Manufacturing Co., 236
3. A bill by the widow and heirs at law of a vendee, to com-
pel the conveyance of woodlands, paid for by such
vendee, was filed against the surviving executor of his
co-vendee, in whose name the title had been taken in
trust, such executor having a naked power of sale. On
demurrer,-Held,
(1) That the personal representative of the vendee
was not a necessary party complainant, because all the
purchase-money had been paid.
(2) That the widow of the vendee was a necessary
party complainant, because she was entitled to dower in
her husband's equitable estate in the lands, at the time
of his death.
(3) That the lands, not having been devised, descended
to the co-vendee's heirs at law, who hold it subject to
the power of sale given to the executor, and were, there-
fore, necessary parties defendant.
(4) That the vendee, having paid one-half of the pur-
chase-money, having been in possession for more than
forty years under a voluntary partition, and the trust of
his co-vendee being shown, the complainants are entitled
to relief. Hill v. Smith,
See APPEAL, 3; ELECTION, 4, 5; FRAUDULENT CONVEYANCE, 2.
Partition.
See PARTIES, 3; SALE OF LAND, 1.
1. A member of a firm whose duty it is to keep the accounts,
and who claims that he has omitted to enter credits to
which he is entitled, will be required to make the most
satisfactory proof of the mistakes he asks to have cor-
rected. Van Ness v. Van Ness,
See EVIDENCE, 7; FRAUD, 6, 7; MORTGAGE, 4; SPECIFIC PER-
FORMANCE, 1.
1. A complainant, under a judgment at law, had levied on
certain property which was claimed by the defendant's
wife. He thereupon filed a creditor's bill, alleging that
if the title to the property had been conveyed to the
wife, it had been done to defraud defendant's creditors.
The wife answered, averring that the property was abso-
lutely hers, by gift from her uncle, for the consideration
of natural love and affection, and denied all fraud &c.—
Held, that she could not afterwards set up, by the proofs,
that complainant himself was implicated in the fraud
(if any had been proved) by which the property, being
her husband's, was transferred to her by voluntary con-
veyance to keep it away from his creditors, no such
allegation being made in the answer. Hart v. Schenck, 148
2. Under the act to quiet titles (Rev. p. 1189) complainant
filed his bill, alleging that he is the owner in fee, and in
possession of certain land in the city of Elizabeth,
described in the bill; that the city claims title to the
property, or some part of it, or some lien thereon,
whereby complainant's title is clouded, the value of the
lot impaired, and that no suit is pending, &c. The bill
also prays that the city may specify its title, claim or
encumbrance, how it was obtained, and that such claim
may be adjudged to be void, and for general relief. On
demurrer.-Held,
(1) That an averment that complainant is the owner
in fee of the land, and in possession, is a sufficient state-
ment of the qualification required by the act, "in peace-
able possession, claiming to own" the land, certainty to a
common intent being all that is required in the pleading.
(2) That it is not necessary to state what the claim is
which the defendant makes or is said to make.
(3) That, though the object of the bill may be to reach
a claim which cannot be reached by this suit, inasmuch
as it does not appear, it is, of course, no ground of
demurrer.
(4) Nor is it ground of demurrer that no ticket was
issued with the subpoena. Ludington v. Elizabeth,
3. A defendant cannot, by answer alone, avail himself of the
defence of fraud in the consideration of a mortgage,
which does not go to the extent of a complete nullifica-
tion of the instrument; but, to have the benefit of such
a defence, he must have recourse to a cross-bill. Parker
v. Jameson,
4. The defence of fraud in the consideration of a mortgage,
which does not overthrow the instrument, but merely
reduces the amount recoverable upon it, cannot be made
on answer alone, but a cross-bill must be filed. Parker
v. Hartt,
5. A bill is not demurrable if it contains equitable merits,
although it be admitted that some of the other circum-
stances stated can be of no avail. Reading v. Stover,
6. A mortgage was given to secure a bond with a penalty of
$2,000, conditioned that a third person, F. B., should,
under a contemporaneous written agreement, faithfully
account to the mortgagee for the proceeds of sales of all
goods furnished by the mortgagee to F. B., as his agent,
and sold by F. B. on commission.-Held, that a bill of
foreclosure alleging that F. B. had, pursuant to such
agreement, sold goods and had not accounted for the
proceeds, and was indebted to the mortgagee in the sum
of $2,000, which the mortgagors had not paid (making
F. B. a party, and praying an answer under oath), is
good, without first establishing, by suit at law, the
amount of F. B.'s indebtedness. Haskell v. Burdette,
7. A bill was filed to foreclose a mortgage for both principal
and interest. A plea thereto, purporting to be a plea to
the whole bill, but setting up a defence to the principal of
the mortgage only,-Held, bad, and overruled. Noe v.
Noe,
8. In a suit under the quia timet act (Rev. p. 1189), the plead-
ings did not allege that the proceedings under which the
adverse title was claimed were taken under a void law,
but merely that every step of those proceedings was
without warrant of law. Relief was denied on the
ground that it did not appear that the complainants had
not a complete and adequate remedy at law. Bellows v.
Wilson,
481
9. The answer of one defendant cannot have the effect of an
answer as against a co-defendant. Admissions contained
in the answer of one defendant will be received in evi-
dence against a co-defendant where the parties stand to
each other in such relation that the admissions of the
one would be competent evidence against the other; but
a co-defendant having filed a separate answer is entitled
to every defence which his answer will allow to be made
under it. McElroy v. Ludlum,
See INSURANCE, 1; Mortgage, 1, 3, 10; SUBROGATION, 5; USURY, 1.
See NOTICE, 5; PLEADING, 2.
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