He had FITZSIM

protection under the equity of any third person. full notice from the Complainants before he made any con- MONS & veyance under what is called the award of Hamilton, Ögden OTHERS and Cooper. He therefore is to be considered merely as

v.

the agent of the Holland company, who took only the equi- OGDEN & ty of G. Morris; and having acquired the legal estate OTHERS. with full knowledge that the Complainants were entitled to every possible benefit under that judgment beyond the interest of Gouverneur Morris, whose right extended only to indemnity for the advance he had made, he is to be considered as a trustee for the Complainants for all beyond that indemnity; and upon receiving the amount due upon the judgment, ought to be decreed to convey to the Complainants all the lands which he purchased at the sheriffs sale which lie within the tract conveyed to them by R. Morris, by the deed of the 14th of FebruaFy, 1798.

It was also contended by the Counsel for the Complainants, that in as much as Mr. R. Morris, had agreed to release the stay of execution for one purpose only, the execution could not legally be issued for another purpose, and therefore the sale was void at law. But whatever intrinsic force this argument might have had, it could not be considered by the Court, because it was expressly admitted upon the record that the execution was regularly issued.

It was further said in behalf of the Complainants, that although, at the time when G. Morris agreed to purchase the judgment, it was not stated in what manner the judgment should be used so as to be o: service to his friend R. Morris, yet as G. Morris varied the conversation, he must be considered as having agreed that R. Morris should direct in what manner it should be used....and that as R. Morris by his agreement of the 16th of September, · 1799, did direct how it should be used, (to which agreement G. Morris did not object,) he was in equity bound to suffer that agreement to be carried into effect; and therefore his assignment of the judgment to the Holland company with a view to defeat the purpose of that agreement was against conscience, and affected all the subse quent proceedings under that assignment.

The conveyances made by T. L. Ogden to Church and others, being made after notice given to him by the Com

FITZSIM- plainants cannot injure their rights. He is liable to MONS & them at all events, and must look to those to whom he OTHERS has conveyed the lands for his indemnity....an indemnity which he has taken care to secure.

v. OGDEN & OTHERS.

The counsel for the Complainants, to show that by the assignment of the judgment nothing but an equitable interest passed, and that the assignee held it liable to the same equity to which it had been liable in the hands of the assignor, cited, 1. Vez. 123, Hill v. Caillovel. 2. Vern, 765, Turton v. Benson. Prec. in Chancery 524, S. C.

To show that a purchaser without notice is not protected, if he has notice before he pays the purchase money and gets a deed, they cited, 1. Atkins $84, Wigg v. Wigg. 2. Atk. 630, 631, Story v. Lord Windsor. Eq. ca. ab. 685, pl. 9. Jones v. Stanly. 3. P. Wms. 307. Tourville v. Naish.

2.

To support the position that where the assignment passes only an equity, notice is not necessary....and that if no legal estate passes, qui prior est in tempore, potior est in jure, they cited, 3. P. Wms, 308. Tourville v. Naish. 3. Brown C. C. 264. Williams v. Lumbe.

To show that a trustee is liable for a breach of trust, they cited 1. P. Wms. 128. Pye v. George. 2. P. Wms. 610. Mansell v. Mansell. 2. Salk, 680, Pye v. George. And Gilbert's Forum Romanum.

To show that where a recital in a deed leads to notice, there notice shall be presumed; they cited 1. ca. in ch. 291. Bisco v. Earl of Banbury. 2. ca. in ch. 246, Moore v. Bennett § Ambler, 311, 312. 1. Atkins, 490, Smith v. Law. Vernon, 885, Ferrars v. Cherry.

And to show what will raise an implied trust, they cited, 1. Vezey 289, Barnesly v. Powell. 1. Vernon, 276, Palmer v. Young. 1. P. Wms. Brown v. Litton, 1. Atk. 383, 384, Wigg v. Wigg. 1. Br. C. C. 81, Sonley v. Clockmakers company....and the case of Slocum and wife v. Marshal and others, in the Circuit Court of the United States, for the district of Pennsylvania.

1st. That there was no trust for the benefit of the FITZSIMComplainants; and consequently they have no equity.

20. That if there was originally a trust for their benefit, yet as the Defendants have acquired the legal title, (without notice of the equity of the Complainants,) they, the Defendants, have equity enough to support the legal estate they have thus acquired, to the extent of the number of acres intended originally to have been conveyed to them by R. Morris, the elder.

1st. There was no trust for the benefit of the Complainants.

The Complainants set forth the trust in Gouverneur Morris to be to prevent the judgment from being used injuriously to them, and to preserve to Robert Morris, his right of redemption in that part of the lands which was supposed to be mortgaged to the Holland company. No consideration flowed from the Complainants, whereby to raise an implied trust in their favor. The consideration was merely personal between Gouverneur. Morris and Robert Morris; it was a matter of confidence; and if the former violated that trust or confidence, he was liable only to Robert Morris.

At law, no man can support an action upon an agreement unless he is a party; or some consideration flowed from him. Cro. El. 369, Jordan v. Jordan. 1. Str. 592, Crow v. Rogers. 1. Vent. 6, Bourne v. Mason." 'It is true there are some modern cases in which it has been holden that the person to whose use the promise was made may maintain an action in his own name, but it must be in a case where the whole use and benefit are to accrue to the Plaintiff. But here, even as stated in the bill, the trust was in part for the benefit of Robert Morris.

If the Complainants would not have a right to enforce the agreement at law, neither can they compel its execution in equity.

This bill is in the nature of a bill for the specific performance of the agreement between Robert Morris and Gouverneur Morris, charging the Holland company

with notice.

MONS &
OTHERS

v.

OGDEN &
OTHERS.

FITZSIM

v.

A Court of Chancery decrees a specific execution of MONS & a contract because a suit at law would not give a comOTHERS plete remedy; but a Court of Chancery will not decree a specifie performance unless the party would have a right OGDEN & to recover damages in a Court of law. Here was no OTHERS. right at law, and therefore this court cannot decree a specific performance of the agreement. 1. Vez. 444, Penn v. Lord Baltimore. Scholles and Lefroy 552, Harvey v. Fielding.

It is an universal principle in Chancery, that the complainant must show himself entitled by his bill. Mitford 43 (15) Bartons suit in equity, 36, 37. He must recover according to his allegations and his proofs. Proofs without allegations are not sufficient, even if his proofs should show a good title to relief. The only allegation like an averment of a trust is that G. Morris agreed that he would not use the judgment to the injury of the Complainants, nor to bar R. Morris's right of redemption. As to the latter part of the supposed trust the Complainants cannot recover, and R. Morris is no party to the suit. On this account the bill is defective....2. Atk. 510, Darwent v. Walton. But even the allegation in the bill, imperfect as it is, is not supported by the evidence. G. Morris, in his answer, denies that R. Morris communicated to him his motives for wishing him to purchase the judgment, and most expressly denies any agreement on his part not to use it to the prejudice of the Complainants. This answer, being directly responsive to the allegation of the bill is conclusive evidence, unless contradicted by more than one witness. But it is confirmed by the deposition of R. Morris, as far as it relates to that interview. G. Morris states that he was induced to become the purchaser by motives of personal friendship towards R. Morris. It was the duty, therefore, of R. Morris to have explained to his friend in what manner the purchase was to be made serviceable to him, and who were the parties really to be benefited thereby. If he did not do it. and intended that others should derive the benefit, it was a fraud upon the feelings of friendship. But it is clear that R. Morris did not request it with a view principally to the security of the Complainants. He states in his deposition that his objects were, 1. The equity of redemption, 2. The surplus tract which it was supposed remained unconveyed,

v.

and sd. To prevent injury to the Complainants. The FITZSIMvisit of R. Morris, jun. to New York, was to prevent мONS & the effect of certain attachments, and to secure the sur- OTHERS plus lands so as to make a provision for his mother. Hoops, in his deposition, says that the security of the OGDEN & Complainants was not an object in the first purchase of OTHERS. the judgment.

There was neither equity of redemption nor surplus land. How then was G. Morris to be secured for the amount of the judgment, unless by the lands of the Complainants? And yet they say that the judgment was not to affect those lands. It would be absurd to suppose such a trust. The agreement of 16th of September, 1799, shows that there was no such trust. And the answer of G. Morris, not being contradicted, is conclusive evidence that the trust did not exist. Pre. ch. 19, Kingdome c. Boakes. 2. Atk. 140, Janson v. Rany. 3. Atk. 407, Only v. Walker. 1. Br. C. C. 52, Pember v. Mathers.

No equity arose from the release of the stay of execution. If there did, it was an equity in R. Morris, and not in the Complainants.

The time and place of sale were fixed by the agent of the Complainants, and therefore they cannot complain, nor allege the want of notice.

The inadequacy of price is by no means so great as the Complainants pretend; but if it was it cannot affect the equity of the Defendants case. If they obtained the legal title they have equity enough to support it, even if it cost them much less than 5,000 dollars. But a sheriff's sale fairly and publicly made has never been set aside for inadequacy of price. If there be no trust, the inadequacy of the price is immaterial.

There must be in every trust, a subject of the trust, a trustee, and a cestue que trust. But here is no subject.... the proceeds of the judgment were not for the Complainants. They were the absolute property of G. Morris. He never held the land. But what sort of a trust was it? Not a resulting trust, for that can only be raised in favor of the person from whom the consideration moved.