SUPREME COURT U.

ATES.

HUDSON & SMITH . GUESTIER.

1812. Feb. Teru

February 3d:

[*Judges present.... WASHINGTON, LIVINGSTON, TODD, DUVALL, & STORY.]

hear a cause

ON the first day of the term, Harper moved for, This court and obtained a rule to show cause why this case, which will not re was decided at February term 1810, should not be re- after the term heard. The motion was grounded upon a statement of in which it was facts which was filed.

March 12th. When this rule was mentioned again by Harper he was informed

BY THE COURT, that the case could not be re-heard after the term in which it had been decided.

GENERAL RULE.

February 10th. Winder, requested information from the Court whether the general rule which directs that only two counsellors should be heard on each side of any cause in this Court, was intended to prevent the division of a cause into distinct points, and the hearing of two counsellors on each point.

Washington, justice. (The chief justice being absent) informed the bar that the Court considered the rule as inflexible, whatever may be the number of points or parties in a cause.

The Chief Justice did not attend until Thursday, February 13. He re seived an injury by the over-setting of the stage coach on his journey frq59 Richmond.

2

decided

1812. February 4th.

FITZSIMMONS & OTHERS v. OGDEN & OTHERS;

Present....JUDGES WASHINGTON, LIVINGSTON, TODD.
DUVALL & STORY.]

He who has equal equity, may acquire

the legal estate, if he can, so as to protect his equity.

THIS was an appeal from the decree of the Circuit Court for the district of New York, sitting in chancery, entered by consent pro forma to bring the case be fore this court.

The material facts as stated by Washington, justice, in delivering the opinion of the Court were as follows:

For the purpose of securing certain of his creditors, Robert Morris, on the 14th of February, 1798, conveyed to the appellants, as trustees for those creditors, a certain tract of land lying in Ontario county, in the state of New York, containing 500,000 acres, described by certain bounds. Previous to this, he had made conveyances to sundry persons of considerable portions of this tract, and amongst others to the defendants, S. Ogden, J. B. Church and to G. Cottringer under whom the heirs of sir William Pulteney claims, of which the appellants had full notice. He had also, by different conveyances, granted to the Holland company more than three millions of acres of land, purchased, (as this tract of 500,000 acres had been,) from the state of Massachusetts, all in the same county and adjoining the land in question.

On the 8th of June, 1797, a judgment, at the suit of Talbot and Allum against Robert Morris, was docketted in the Supreme Court of the state of New York: which, being prior in date to the conveyance made to the appellants, bound all the land which passed by it to the appellants. The bill states that Robert Morris, being confined in the jail at Philadelphia, in order to prevent any im

v.

proper use from being made of the above judgment, and FITZSIMon condition that the title to the land conveyed to the trus- MONS & tees should in no wise be impaired by it, procured Gou- OTHERS verneur Morris to advance the money for such judgment, from motives of friendship....that the said judgment was OGDEN & assigned to Adam Hoops the mutual friend and agent OTHERS. of the parties, which was done to prevent it from being used injuriously against the trustees and the creditors for whom they acted, and also to preserve to Robert Morris the right of redemption in 1,500,000 acres which he had conveyed to the Holland company, in nature of a mortgage as he supposed. That A. Hoops afterwards assigned the said judgment to gouverneur Morris, and on the 16th of September, 1799, Robert Morris confirmed the said trust deed (of which it is worthy of remark, no mention had been made in the previous parts of the bill,) and further agreed that any other land he might have in that county, which had not been previously conveyed, should be applied to pay that judgment in the first place, and the said last mentioned lands were to be sold upon an execution and to be purchased by A. Hoops under Talbot and Allum's judgment for the trustees, to which G. Morris assented, the trustees agreeing to mortgage the land to be purchased, to repay G. Morris the sum advanced for the purchase of the judgment.

It appears by the evidence, that, previous to the promise thus charged in the bill to have been made by G. Morris, to R. Morris the judgment of Talbot and Allum had been conditionally purchased by R. Morris, jun. one of the appellants, avowedly for his individual use, from Cotes, Titford and Brooks who then held it by assignment. That when this purpose was effected, it was agreed that the assignment should be made to A. Hoops, though in reality for the use of R. Morris, jun. and should remain in the hands of a third person as an escrow to take effect on the payment of the note given by the said R. Morris, jun. for the purchase of the judgment, and that the same should belong to Thomas Cooper, who endorsed the said note, in case he should be compelled to discharge the same.

R. Morris, about the time when this note would become due, found himself unable to take it up, and, on

บ.

FITZSIM, this account, G. Morris had been solicited by R. Morris, MONS & and consented to pay the money and to retain the judg OTHERS ment to secure the advance. G. Morris in his answer, expressly denies that any communication was made to OGDEN & him by R. Morris of his motives for asking his assisOTHERS, tance in procuring an assignment of the judgment....or that he had ever heard or knew of the claim of the trustees to any part of this 500,000 acre tract, or that the same would, in any manner, be affected by the judgment of Talbot and Allum, until some time after he had paid for the judgment, when it was accidentally communicated to him by A. Hoops, who held the assignment of the same for A. Morris, jun. as before mentioned. Upon receiving this information, G. Morris, with the assistance of his counsel, Thomas Cooper, projected a plan for protecting the interests of the trustees from being sacrificed by a sale under the execution which might isque on that judgment. Articles of agreement were accordingly drawn and executed by G Morris and A. Hoops on the 29th of August, 1799, by which it was stipulated that the whole of the lands in the county of Ontario, purchased by R. Morris from the state of Massachusetts amounting to upwards of four millions of acres should be sold under the judgment, and should be purchased by A. Hoops who should convey a certain part thereof to G. Morris, and should also mortgage that part of the said land which then belonged to the trustees, to the said G. Morris, for securing the advance made by him on the purchase of the said judgment. Although this large tract of country was, by this arrangement, to be sold under the aboye judgment, yet that judgment being posterior to the conveyances made to the Holland company, as well as to the other defendants below, they were consequently not bound by the judg ment, nor could the title of the grantees have been affected by a sale under it. The object of this agreement, however, in relation to those lands, was to secure to G. Morris a supposed, but totally unfounded claim which R. Morris had asserted to an equity of redemption in one of the large tracts sold by him to the Holland Company, and also an imaginary quantity of surplus land presumed by R. Morris to be somewhere within the bounds of this great tract of country which was to be sold, which surplus, as it afterwards turned out, had

no

real existence. As to the land belonging to the trustees, FITZSIMwhich it is admitted was bound by this judgment, G. MONS & Morris was contented to receive a mortgage of that to OTHERS secure his advance for the judgment.

A draft of an agreement was also made by Thomas Cooper, by the directions of G. Morris and delivered to A. Hoops to be carried to Philadelphia, and to be proposed to R. Morris and the trustees;....but the terms of that agreement do not appear in any part of this record, although it is fairly to be presumed that it did not vary materially from the above agreement between G. Morris and A. Hoops. This draft was not altogether approved by the parties in Philadelphia, and another agreement was accordingly drawn and executed by R. Morris, the trustees and A. Hoops, bearing date the 16th of September, 1799, which did not materially differ from the agreement of the 29th of August preceding, except, that, by the latter, the surplus land, if there should be any, was to be mortgaged to the trustees as a security for reimbursing the whole or such part of the aforesaid judgment as the trustees might be obliged to pay for the discharge of the mortgage to be given by A. Hoops for securing the advance made by G. Morris for the purchase of the judgment,

This agreement was afterwards shown to G. Morris who expressed some displeasure at its departure from the plan which he had himself arranged; but he admits in his answer that he never communicated his disapprobation either to R. Morris or to the trustees.

It appears in evidence that there was a stay of exe. cution on the judgment of Talbot and Allum for three years from the time it was entered, which of course would not have expired before the 8th of June, 1800. This stay was released by R. Morris at some period subsequent to the interview which took place at the jail between R. Morris and G. Morris; but the particular time when it was executed does not appear from the record. It is not, however, improbable that it was not long subsequent to the second of May, 1799, since it appears that, on that day, R. Morris, jun. in a letter addressed to T. Cooper, directing him to assign the said

OGDEN &

OTHERS.