Summary
Actpal from a decree of the Court of Chancery, dismissing the,bill of complaint. The bill filed on the 7th of March 1797, by John Turney, and Rachel his wife, stated that John Vunsant, father of Rachel, the female complainant, being seized and possessed of supdry tracts of land in fee simple, and possessed of the interest and term of years unexpired and then to pome, of two leases for 80 years, of two Crist Mills, qne lease dated the 21st of March 1744, ant| the other the 36th of Aprjl 1764, and having divers debts due to bin; on bonds, &c. amounting to ¿01654 13 0 current money, apd being indebted to Owen Jones, and others, in the sum of J4681 1. 8 current money, on bonds, he did, on the 1st and 3d of September 1766, execute to the said Jones, and others, a mortgage deed for all the said real property, except the parcels of leased lands, in order to secure to them, and the other creditors, the payment of the debts so due to, them respectively; and he did at the same time assign the debts so due to him, and mortgage the said leasehold property to the said Jones, and others, for securing the debts, £.o due from him, and did empower them to collect the said debts, and apply the same towards the discharge of the, debts so clue from him. [By these mortgages Vanscmt was to remain in possession of the lands, Ac. and take the pro-¡ fits, &c. for five years, if lie performed the covenant there-1 in mentioned, by paying annually a certain part of the' debt; and at the end of five years, or upon failure to pay, ■ &c. (the debt or any pari being unpaid,) Jones and others j were to sell all the lands, &c. end arm!y the proceeds to' ‘ * t payment , of the debts, &c.} That Vansant remained hi possession of the real and leasehold property so mortgaged, and enjoyed the profits and benefits arising therefrom until his death, which happened on the 1st of March Í773, having duly made his last will apd testament, and thereby appointed his wife, and Shnjter Bouchell, executor and .executrix- That the wife of Vansant did not take upon herself the execution of the will, but that Bouchell only took upon himself the execution thereof, and to him only letters testamentary thfcreon were granted. That the debts so due .to Vansant, and by him. assigned as aforesaid, were collected and applied to the discharge of the debts so due from Him, and that Vansant had, during his life-time, ¡made divers payments to Jones, and others, on account of the debts due to them, and the other creditors, and that there . did not remain due to them, at the time of his death, more than about ¿61200 current money. . That after the death of. Vansant, his executor, Bouchell, obtained possession of the goods and chattels which were of Vansant at the tipie of his death, and which were not included in either of the Said mortgage deeds, to |he amount of .more than ¿6320 current money. That at the time of the death of Vansant, divers persons were indebted to him by bond, &c. to the amount of at least ¡61000 current money, over and above, and besides the debts so as aforesaid assigned; all which were or might have been received and collected by Bouch~ ell, and for which ho ought, as executor, to be accountable. That Bouchell, after the death of Vansant, took into his .possession all the bonds, &c. which might prove the debts due to Vansant, and still lias them, it is believed, in his possession. That Bouchell hath not yet rendered an account of his executorship, oj, settled any final account thereof, nor rendered any complete inventory or list of debts due tó his testator,' or. of money by him received on account of the said debts. That on the 30th of June 1773, there being at that tiríié the surp of ¿61200 still remaining due to Jones, and the other creditors, secured by the deeds of mortgage, Bouchell, the executor/ paid t|}e said sum to the said creditors, and took a conveyance to hjmself from Jones, and others, of the lands and tenements, fee simple, pnd lease-hold, so mortgaged to them. That Bouchell, immediately after the execution of the jpst mentioned deed, took possession of all the lapels and tenements,’ witjj fhe houses, núlN, and oilier improvements thereof, which had been so mortgaged, awl hath hidden the same, and taken the profits thereof ever since. That the mother of the female complainant is dead, intestate, and that she is the sole heir an.d representative of Vansant, her father, and also of her said mother. That she was an infant when she intermarried with the .other complainant. That the goods, &c. which were of Vansant, which came to the handset Bouchell, and have been received by him, together with the rents and profits which have been received by him, and which .have arisen from the mortgaged property since it has been in the possession of Bouchell, amounts to much more, than the sum of ¿C120.0, so as aforesaid diie, with all other debts due from Vansant, paid by Bouchell, and the interest thereon due; and therefore, that Bouchell ought notonly to convey to the complainants the mortgaged premises, frat also to account and pay over to them the balance which may be duelo them of the personal estate, for which he is accountable as executor of Vansant, and out of the profits of the lands and tenements so conveyed to him, after paying the debts due from the estate of Vanscmt, including the sura of J21200 so paid by Bouchell, together with interest ¡thereon. That Jonathon Jester now is, and for several years past has been, possessed of thp landsgnd tenement? which were so as aforesaid mortgaged, by virtue of a lease from Bouchell to him, Jester, subject to tjie annual rent of ■£!}£) current money; and that one year’s rent is now due, and not yet paid, '.by Jester to Bouchell. The objept'of the bill was therefore to obtain from Bouchell, as executor of Vansant, an account of his administration of Vansant’s personal estate, and a payment of the balance which should appear to be due from him; another object was to obtain from. Bouchell a conveyance to Rachel, one of the complainants, of the said tracts of land and grist-mills, which had been mortgaged by Vansant to Jones and others, as before stated, and by them conveyed to Bouchell, on receiving from him the balance of the mortgage debt; and another object was to compel Jester, to whom Bouchell had leased the lands, to account with the complainants for, and pay them, what rent is or shall be diie from him for the lands so leased. Bouchell having died, a bill of revivor was filed against his executors. On the coming in of the answers of the executors of BoycheU? a commission %va$ issued, and testimony taken under it. By agreement between the par - ties, accounts were stated by the auditor, to which both the complainant and defendant excepted, The cause was argued by counsel.
Hanson, Chancellor, (June 1805.) It is to be remarked, that before the equity of the case was argued, accounts were stated by ponsent of the parties, in order, as it ha? been said, that from the statement the chancellor might be enabled to determine whether or not there was equity; that is to say, as he supposes, whether or not there is any thing due from the defendants tp the pomplainants. But that the complainants were entitled to an account, without a previous statement, could not, he thinks, be doubted. It is not necessary to prove that a map owes money, before he shall be obliged to pender an account of a trust. The chancellor is clearly of opinion, that Bouchdl should be considered as the assignee of the mortgage given by Vansané to his creditors, or of the interest, whatever it was, which the creditors, who are the grantees in the deeds by him executed, derived from the said eleeds,
Let it be supposed that the creditors, mortgagees or trustees, had not conveyed the property to Bouchdl, and that sl bill were filed against them for a redemption, or a sale of the property under the direction of this court, can any thing be more certain than that the terms of redemption would be the payment of whatever should remain due after predi ting the payments made to the creditors, and the sums ■ Received from the debtors of Vansant, contained in the list mentioned in the deed, or with the whole amount of the list, supposing the whole to be chargeable to them, with- . put proof of their actual receipt? Can it, on deliberation, be conceived, that if the creditors and trustees, or mortgagees, had conveyed their interest to a stranger, they would thereby place Vansant's representatives in a better condition than they were in before the conveyance? Certainly not; and the representatives could not possibly be entitled to a conveyance of the property until the debts, for which it was pledged or conveyed, should be fully discharged, nor could the representatives be entitled to any part of the money arising from a sale under the authority of this court, until the object for which the deeds were executed should be fully obtained,
But Bouchdl being Vansanfs executor, and the creditors, trustees or mortgagees, having conveyed to him, for the cop.teideration of J012OO, it is contended, that lie must be considered as having obtained the conveyance for the benefit of Vansant’s representatives, he having, at the time of the (conveyance, assets, after having paid all Vansant’s debts, except those due to the creditors mentioned in the deeds of mortgage, sufficient to make the said purchase.
If the said creditors had due to then! at that time only :£1200, and it was their meaning, on the receipt of that sum, to release or restore the pledge, how improper was their conduct, as well as that of Bouchell; and h ow little interested could they be in acting as they did? Surely they ought to have conveyed the fee simple property at least to Vansant’s heir, and this, as honest intelligent men, it is to be presumed; they would have done.
It is impossible to avoid the remark, chat Vansant died in confinement, into which he was thrown on account of his debts, and that this was an event, not at all probable, supposing him to have been solvent at the time of his death.' However, as the complainants aré entitled to, and claim, an account, it is proper for the chaucelior to direct it to be stated. — Decreed, that the defendants, as executors of Bouchell, account with the complainants; and that the auditor of this court slate the account, charging Bouchell with the amount of the inventory, and the amount of the sperate debts by him returned, and with all other debts or things by him received, or the value thereof, and all debts legally proved to be due to Vansant, not barred by the act of limitations, which might have been received* and which, from gross negligence, were not received. On the other side, the auditor is io charge those debts due from Vansant which were paid by Bouchell, the debt or debts due from Vansant to Bouchell, the sum of I?] 200 which he paid to the creditors, mortgagees, and the sum which remained due to them after deducting the id 200, and the amount of the list of debts to them assigned, excluding such of the debts, if any there be, received by Vansant or by Bouchell. The auditor having- stated the account or accounts, is to make his report to the chancellor, subject to exceptions, and be done with as to the chancellor shall seem just.
The chancellor thinks proper to remark on some of the authorities which have been cited. “An executor, purchasing an incumbrance, must be supposed to purchase in order to protect the title for the representative of the testator.” This is at least tlie full amount of one authority; but the 'chancellor presumes thd rule or position to be con» fitiélí to the cdse of an execdtor, “wliO has assets or motley belonging to the estate; with which he purchases.'” If the execiutor haS nothing in his hands; common sense m'ust say, that he is on a footing with any other purchaser, who, by purchasing, places himself in the room of the mortgagee. '“An executor purchasing with his Own money, and giving the'fu 11 valué for the mortgaged land, shall not hold it as ássets.” The meaning of this is not plain. Süpp'ose the executor does licit give tlie full value — 'what then? The chancellor conceives the true rule to be, that an executor, if he has assets, is bound to clear a mortgage, add that if be purchases when he has assets, although he may pretend to purchase with his own money, lie shall be considered as ‘ purchasing fdr the representative, or protecting his title, there being no other person to purchase or protect.
In the present case it appears to the chancellor, that Bouchdl, at the timé of his purchase, had not the money in his hands, or any part thereof., It appears too that it was the interest of Vansdnt, and the creditors, when he executed the deeds, that they should have a right to dispose absolutely of the property, in case the debts were not paid; and that at the time of their conveyance to Bouchdl, neither party had an idea of his redeeming a mortgage by paying the balance of the debts, or of his purchasing for the benefit of Fans ant’s family. They might entertain erroneous ideas of the law, or of the principles of this court/ . but it must ever be the practice of this court to examine into the intention of parties/ and although that intention may not be conclusive, it is.at least a circumstance entitled to some influence, when aided by or coupled with other circumstances. Now the chancellor is satisfied, that at the time of the conveyance to Bouchdl, the intent of tlie parties was, that he should take in his own right; that neither of them thought they were doing amiss; that the vendors thought they had an absolute- right of disposal; that as executor, Boudidl was in no condition to purchase; that supposing him, even to have a few hundreds as executor, it does not follow that making a purchase with 5y4, 5, or 6 times tlie sum, he purchased for the heir. In short, Bouchdl' fairly stands in place of the mortgagees.
The account, stated by the auditor pursuant to the de» Cree of the chancellor, made Bouchell a creditor to the estate of £9437 1 6. The complainants excepted to the account upon sundry grounds, which were stated.
Hanson, Chancellor, (December 1805). It is unnecessary to comment or decide on the exceptions one by one. It is impossible that, with the allowance of any exceptions which are entitled to allowance, a statement made conformably to the principles and directions of the decree, can. make the defendants, who are executors to Bouchell, in debt to the complainants, or the estate of Vansant, under whom the complainants claim — a decree then against the other defendant, Jester, is out of the question. Decreed, that the bill of the complainants be dismissed, but without costs. From this decree the complainants appealed to this Court.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
