Platt v. Griffith. at the time of the execution of the mortgage, towards the satisfaction of two mortgages given to Laura D. Hopping, which were upon the mortgaged premises, with other land, when the mortgagor purchased the property, but, at the time of the execution of the complainant's mortgage, they were only on the lot covered by his mortgage and the adjoining lot. Those lots were of equal value. On the principle of subrogation the complainant would be entitled to priority over the lien claims to the extent of the amount paid on those mortgages, which was the just share which the lot covered by his mortgage ought to have borne. He is, however, entitled to priority over them under his mortgage, not only as to that money, but as to the rest of the amount intended to be secured thereby. When the building was begun, his mortgage was on record, and was notice to those who should furnish materials or labor for the building, that the land was pledged by the mortgage for the amount declared to be secured by it, $3500 and interest thereon. And the rest of the money over and above the $1250 paid on account of the Hopping mortgages was, in fact, advanced pursuant to a verbal agreement made between Van Deventer and Griffith, when the mortgage was executed, to pay it for or on account of the construction of the house. It is testified that the land without the building was not good security for even $2000. The money was advanced, according to the agreement, in installments, as the work on the building progressed, and was used in the construction of the building. There appears to be no good reason why the complainant should not have the benefit of his mortgage. Moroney's Appeal, 24 Penn. 372; Taylor v. La Bar, 10 C. E. Green 222; Macintosh v. Thurston, Id. 242. Though in each of the cases just cited there was a written agreement on the part of the mortgagee, binding him to furnish the money as security for which the mortgage was given, while, in this case, the agreement was merely verbal, that circumstance will not affect the result. The conclusion flows from the fact that the lien claimants had notice, before giving credit on the security of the land, of the existence of the complainant's Bacon v. Bonham. mortgage, and of the amount for which it was to be security; the court. BACON vs. BONHAM and others. 1. A legacy in the hands of an executor upon no trust except to pay it over to the legatee, is not a trust within the meaning of the exception of a trust created by some person other than the debtor himself, and whose transfer to the debtor cannot, therefore, be prevented by proceedings for discovery against him under the supplement of March 20th, 1845, to the chancery act. 2. A legacy expectant is assignable in equity, and such assignment for valuable consideration, without fraud, will be enforced. 3. An assignment by way of mortgage, of a legacy, need not be filed in accordance with the act concerning chattel mortgages. That act does not apply to mortgages of choses in action. Creditor's bill. On final hearing on pleadings and proofs. Mr. W. E. Potter, for complainant. Mr. J. J. Reeves and Mr. A. Browning, for defendant Elisha Bonham. VOL. XII. 27 209 56 678 27 209 57 242 THE CHANCELLOR. Bacon v. Bonham. This is a creditor's bill, filed by John S. Bacon against Belford M. Bonham and Elisha Bonham, in order to subject to the payment of two judgments recovered by the complainant against Belford M. Bonham, the legacy given to him by the will of Jehu Bonham, deceased, late of the county of Cumberland, or so much thereof as may be necessary for the purpose. One of the judgments was recovered in the Circuit Court of Cumberland county on the 17th of March, 1873, for $3004, the real debt being $1480.07. Execution was, shortly after the recovery of this judgment, issued thereon, and $200, or thereabouts, realized out of the sale of the defendant's personal property. His real estate was all sold under execution in foreclosure out of this court. On the 27th of March, the judgment was docketed in the Supreme Court, and on the 18th of June, 1874, an alias fieri facias was issued upon it, which was returned wholly unsatisfied, nothing having been made thereon, nor any property found whereon to levy. The other judgment was recovered on the 26th of March, 1875, in the same Circuit Court before mentioned, for $7000 debt, besides costs. The alias execution issued on this judgment was for $1211.79 debt, besides costs. That writ was also returned wholly unsatisfied. The bill was filed on the 25th of July, 1875, after the return of those writs. It was filed under the supplement of March 20th, 1845, to the "act respecting the Court of Chancery." Revision, p. 76. That act provides for the filing of a bill to compel the discovery of any property or thing in action belonging to the defendant in the judgment, and of any property, money or thing in action due to him or held in trust for him, except such property as is reserved by law, and to prevent the transfer of any property, money, or thing in action, or the payment or delivery thereof to the defendant, except where such trust has been created by, or the fund so held in trust has proceeded from, some person other than the debtor himself. The testator died on the 25th of March, 1875. By the will, which is dated December 16th, 1869, he directed that his real and personal property, except Bacon v. Bonham. so much of his household furniture as might be selected by his wife for her use, be sold by his executor, and the proceeds of sale invested. He made provision for his wife out of the interest of the investment, and directed that after her death the principal, with its accumulations, be divided, one-third thereof to go to his half-brother, Belford M. Bonham. The widow of the testator is dead. The defendants' counsel objects that it appears by the bill that the property sought to be reached is held in trust for the defendant Belford M. Bonham, under a trust not created by nor proceeding from him, but created by the will of Jehu Bonham, and insists that therefore the bill must be dismissed. The objection is not well taken. A legacy in the hands of an executor upon no trust except to pay it over to the legatee, is not within the exception of the act. The case shows that, after making his will, Jehu Bonham became insane, and was, on inquisition, declared to be a lunatic, and the defendant Elisha Bonham was duly appointed his guardian. From the will which thus came to his hands, the latter became acquainted with the disposition which the testator had made of his property, and consequently with the provision made for Belford. Belford also knew of that provision. The will appointed Elisha sole executor. On the 27th of March, 1874, about one year before the death of the testator, Belford being indebted to Elisha in the sum of $2000, besides interest, executed, together with his wife and children, who joined in the instrument, for Elisha's greater security, an assignment to the latter of the legacy to Belford to the extent of $2000 and interest, as security for the payment of that debt. Elisha advanced the money, which constituted the debt to Belford, with the understanding that it was to be re-paid to him out of the legacy. The bill alleges no fraud, nor is there evidence of any. The complainant's counsel insists that no title passed by the assignment, because the subject of it was not only a mere expectancy, but one of that character which it is against the policy of the law to permit the expectant to transfer. Contingent interests and expectancies may not only Bacon v. Bonham. be assigned in equity, but they may also be the subject of a contract, such as a contract of sale, when made for a valuable consideration, which courts of equity, after the event has happened, will enforce. Story's Eq. Jur., § 1040 c.; Fonblanque's Eq. 216; Smithurst v. Edmunds, 1 McCarter 408; Langton v. Horton, 1 Hare 549. In equity, such expectancies as that in question are the subject of transfer. Beckley v. Newland, 2 P. Will. 182; Hobson v. Trevor, Id. 191; 2 Spence's Eq. Jur. 852, 853, 854, 865; Stover v. Eccleshimer, 46 Barb. 84; Field v. Mayor of New York, 2 Seld. 179; Bennett v. Cooper, 9 Beav. 252; Story's Eq. Jur., § 1040 c.; Snell's Prin. of Eq. 74. The last-mentioned writer says: "A mere expectancy, therefore, as that of an heir-at-law to the estate of an ancestor, or the interest which a person may take under the will of another then living, non-existing property to be acquired at a future time, as the future cargo of a ship, is assignable in equity for valuable consideration, and, where the expectancy has fallen into possession, the assignment will be enforced." In Cook v. Field, 15 Q. B. 460, it was held that a promise to assign a mere expectancy—a devise expected by the assignor-was a sufficient consideration to support a promise to pay for it. The transaction between Elisha and Belford appears to have been in all respects fair. Moreover, Elisha is in possession of the subject of the mortgage, and his equitable title is perfected. It is urged, also, that the assignment by way of mortgage to Elisha, being of a chattel interest, and not having been filed in accordance with the provisions of the "act concerning mortgages," (Revision 485, pl. 39,) is of no validity against the complainant. But the act does not apply to mortgages of choses in action. Williamson v. N. J. Southern R. R. Co., 11 C. E. Green 398. It appears from the evidence that the share given by the will to Belford M. Bonham will not amount to enough to pay off the debt due to Elisha, to secure which it was assigned, and no other property has been discovered. The bill, therefore, must be dismissed, with costs. |