Wood v. Perry.

have their respective parcels conveyed to them, on their paying the stipulated price; he informed them that they must come in under the contract which he had given to Mallory, and he would not convey to them except subject to that contract.

It turned out that Mallory had assigned his agreement to one Leonard, the day after he gave up the possession to Torrey. On being refused a clear deed by the defendant, Wood looked up Mallory's contract, purchased it, and procured it to be assigned to himself, in order to protect all the complainants, himself included. He then tendered the amount due by the terms of that agreement, and demanded a deed of the lot. The defendant refused to execute the deed, and soon after commenced actions of ejectment against the several complainants. Whereupon they filed their bill stating the foregoing facts, and praying that the ejectments might be enjoined, and that the defendant should perform his contract with Mallory, and convey all the lands to Wood for their benefit. The defendant demurred to the bill, for want of equity, for the misjoinder of complainants, and because Torrey was not made a party.

L. Walker, for the defendant, in support of the demurrer.

W. H. Seward, for the complainants.

THE ASSISTANT VICE-CHANCELLOR.-If the bill rested upon the defendant's contract with Torrey alone, the objection of misjoinder of complainants would be fatal; for there would be neither a joint or a common interest in the subject matter of the suit. But the Mallory contract, and the defendant's recognition of it and his reference to it as outstanding, have led to a different state of things. The purchase and transfer of that contract, having been made to Wood for the protection, and thus for the benefit of all the complainants, they have a common interest in enforcing it against the defendant, which will justify their uniting together in this bill. (See Story's Eq. Pl. 233, 285. The Attorney General v. Heelis, 2 Sim. & St. 67.) The demurrer on the ground of misjoinder of parties, is therefore not well taken.

In regard to the omission to make Torrey a defendant in the

Rockwell v. Hobby.

suit, I do not perceive how the complainants are to proceed without bringing him in. Although as to the defendant, they may be entitled to insist upon the fulfilment of Mallory's contract, yet they entered into possession as purchasers from Torrey; and their statement shows that he has done nothing to forfeit his claims upon them. A conveyance of the whole premises from the defendant to Wood, under Mallory's contract, might overreach and cut off the rights of Torrey in the land. And in reference to the defendant's dealing with the land, it is proper, and perhaps he can claim, that the contract with Torrey should be disposed of in this litigation founded upon the other contract, inasmuch as the decree may deprive him of the power of conveying to Torrey. The demurrer for this cause must be allowed with costs. The complainants may amend their bill within twenty days, on payment of costs, and on their so doing, the injunction will be permitted to stand. If they omit to amend, the bill will be dismissed with costs, but without prejudice to the equitable rights of all or any of the complainants.

ROCKWELL & HOBBY, Executors, &c. v. HOBBY.

E. advanced money to one who held a bond and mortgage against his mother, H., paying its full amount. There was no assignment executed, the securities were lost, and it did not appear that they ever left the possession of their mutual attorney; but E. had the possession of H.'s deed for the premises mortgaged, and retained it till his death. It did not appear how he came by the deed. Held, that the son had an equitable lien on the premises for the amount of his advance with interest.

If there had been no deposit of the deed, but he advanced the money on an agreement to have the mortgage assigned, equity would substitute him in the place of the mortgagee.

In the absence of other proof, evidence of an advance of money, and the finding of title deeds of the borrower in the possession of the lender, establishes an

equitable mortgage.

February 9, 1844.

THE bill was filed by the executor and executrix of Ebenezer A. Hobby. It set forth that Harriet Hobby, the mother of

Rockwell v. Hobby.

Ebenezer, in 1822 bought a piece of land of one Hubbard, and a few days after, mortgaged the same to S. C. Barker. In 1827, she was sued on the bond, and her son, at her request, advanced the amount of the bond and mortgage. He did not take an assignment, but in order to secure him, she deposited with him Hubbard's deed of the land, (which was not recorded,) and he retained the deed until his death. The bond and mortgage cannot be found, and are lost. The bill prayed for a substitution in the place of the mortgage, also to have the benefit of the deposit of the deed as security, and for a sale of the lands to pay the advance made by E. A. Hobby.

The answer, without oath, insisted that the money paid by E. A. Hobby was the defendant's, and that the mortgage was paid off and destroyed. It denied that she deposited Hubbard's deed to secure E. A. H., for any money, and averred that he never had it in his possession to her knowledge.

The testimony established that E. A. Hobby paid the amount of the bond and mortgage, and the deed was in the possession of the complainants. Other facts will be found stated in the opinion of the court.

George Case, for the complainants.

J. Warren Tompkins, for Mrs. Hobby.

THE ASSISTANT VICE-CHANCELLOR.-There is no question but that the testator paid all the money with which Mrs. Hobby's bond and mortgage were satisfied to Barker or obtained from him. Mrs. H. alleges that they were paid with her own funds. Of this there is no proof, and the testimony corroborates the inference arising from its coming out of the testator's hands, that it was his money. Barker says that before suing the bond he applied to her for payment, and she answered that she had not the money. He told her he wanted her to procure it of some neighbor, and she said she would look it up. This shows not only that she had not the money, but that she expected to borrow it. We next find her son, after she has been sued, coming forward and paying it, and taking receipts which express that he

Rockwell v. Hobby.

made the payments. I am satisfied from the evidence, that the money paid was his own.

The next question arises upon the possession of the bond and mortgage, and what became of them. That they are either lost or destroyed, we may assume from the statement in the answer. They doubtless passed from the possession of Barker's attorney, to that of Mr. Mead the attorney who appeared for Mrs. H. in the suit on the bond, and who made the payments to the attorney of Barker. Mr. Mead was probably the attorney in some measure, of the testator as well as of Mrs. Hobby. It appears he sent to the testator's counsel Mr. Grim, his bill of costs for the defence put in to the suit on the bond, to which is appended a charge for conveyancing done for the testator, and endorsed on the bill is a note to Mr. Grim, saying that he thinks the within bill should be paid before the assignment of the mortgage, &c., are given to Mrs. Hobby. This shows him acting for both.

At all events, we trace the possession of the bond and mortgage no further. Mr. Mead perhaps retained them for the payment of his bill, and the most probable conclusion as to their fate is, that they were burnt with his law papers many years ago.

The expression in his note in reference to the assignment of the mortgage, is a part of the res gesta, and doubtless related to this transaction. And had the name been Mr. instead of Mrs. Hobby, or if it were after the death of the testator, I should have felt no difficulty in holding that there was to have been a transfer of the mortgage to the testator. As it is, the matter is involved in much obscurity. This testator may, for his mother, have done what is not usual, viz. advanced his money to take up a mortgage, without intending to keep it on foot as a security. His retaining the receipts is consistent with either supposition. If the case rested here, it would preponderate strongly in favor of his having in view an assignment, or at least retaining the security.

There is another transaction which may aid in solving the difficulty. The bill claims that on her son's making these advances, Mrs. H. deposited with him her deed of the mortgaged

Rockwell v. Hobby.

premises, then unrecorded, as security for such advances, and that it remained with him till his death, and the complainants have had it ever since. The answer denies the deposit, and says that Mrs. H. supposed that the deed was recorded, and that she had it in her own possession. The deed is produced by the complainants, and it has not been recorded. It does not appear when or how it came to the possession of the testator or of his representatives. Coming from the latter, we are to take it in the absence of explanation, that it was among the papers of the tes

tator.

And in the absence of all other proof, the evidence of an advance of money and the finding of title deeds of the borrower in the possession of the lender, is held to establish an equitable mortgage. In Ex parte Corning, 9 Ves. 115, Lord Eldon says that the fact of the adverse possession of the deeds in the person claiming the lien and out of the other, was a fact, that entitled the court to give an interest.

In Ex parte Wetherell, 12 Ves. 401, the same Chancellor says, "it is very well settled, that if there has been a delivery of deeds, that, in this court, amounts to an equitable mortgage; and the possession of the deeds is, if no other purpose is shown, evidence of an agreement that the estate itself shall be a security."

In Ex parte Haigh, 12 id. 403, the evidence was, an appli cation by one very much embarrassed, for assistance by discounting; after which application the lease was delivered. This was held sufficient to establish an equitable mortgage.

In Ex parte Langton, 17 Ves. 230, Lord Eldon said, "it has been long settled, that a mere deposit of title deeds upon an advance of money, without a word passing, gives an equitable lien."

Long before this, Lord Thurlow held in Featherstone v. Fenwick, 1 Bro. C. C. 279 n., and in Harford v. Carpenter, 1 id. 370 n., (see them stated by Lord Eldon in 14 Ves. 606;) that if there were a deposit of a lease, and nothing more passed at the time, that should be intended as a deposit for the sum then due. And see 2 Hovenden's Supplement to Vesey, Junior, 104, the note to Ex parte Corning, on the same subject.

Again, in Kensington, Ex parte, 2 V. & B. 79, 83, Lord