The deed contains covenants of warranty. The deed was executed and delivered in 1869. The defendant immediately took possession of the land, but neglects to pay the balance due the mortgagees.

Yager became the principal debtor and Cubberly the surety, in the judgment of law. In such case equity will compel the principal to discharge the obligation. Irick v. Black, 2 C. E. Green, 189; Marsh v. Pike, 1 Sandf. Ch. 210; 10 Paige, 595.

I think the complainant is entitled to the aid of the court in compelling the defendant to discharge this obligation. He must pay the whole balance due. I cannot determine the amount due, as the holders of the mortgages are not before the court, and they have a right to be heard. But it is the business of the defendant to know the amount due, and to pay it. There ought to be a decree in accordance with these views, with costs.

John M. HARPER

v.

Archibald C. MCELROY.

1. On a bill by a lessee for an injunction to restrain the grantees of his landlord from trespassing on one of two lots which he claims he rented, but for which the alleged trespasser has a conveyance in fee, there being a serious dispute between the complainant and his landlord, whether or not such lot was included in the verbal agreement to rent, and it being plain that the complainant had only a license to pass over such lot, held, that the order to show cause should be discharged, with

costs.

2. An injunction will not issue unless the complainant's right to the subject matter in dispute, and also to the rem

It is admitted that an injunction will not issue unless the complainant's right to the subject matter in dispute, and also to the remedy, is clear. If there be reasonable or serious doubt, his prayer will be denied. The cases on this point are collected in Stewart, Dig. p. 620, SS 13, 15.

This plain and most valuable rule forbids that I should make the order in this case absolute. There is a serious dispute between the complainant and his landlord, whether the rear lot was included in the verbal agreement to rent or not. The landlord is very emphatic that it was not, and says that he only gave the complainant permission to pass over the rear lot to the river. I think it appears that the rear lot was, all of the time, offered for sale; that the complainant not only knew this fact, but had made offers for it, or made inquiries about the price.

These facts make one thing only quite plain, which is that the complainant had a license simply to pass over the rear lot to the river, which was revocable, at any time, by the owner. If he acquired any other right by his agreement, it is not established before me.

This view renders it wholly unnecessary for me to decide whether the trees cut were ornamental shade trees or not, and whether the threat to cut others should be restrained by injunction or not."

I will advise that the order to show cause be discharged, with costs.

or serious doubt, the injunction will be denied.

ORDER to show cause why an injunction

should not issue to restrain trespassing and

the cutting of trees. Discharged.

The case is stated in the opinion.

Allowed.

The case is stated in the opinion.
Mr. W. H. Morrow, for demurrant.
Mr. L. DeWitt Taylor, contra.

Bird, V. C., filed the following opinion: The demurrer is for want of parties. The bill is filed for the construction of a will, in and

Mr. F. Voorhees, for defendant.

Bird, V. C., filed the following opinion: The bill in this case is presented by a lessee, asking for an injunction to restrain the grantee of his landlord from trespassing on one of two lots which he claims he rented, but for which the alleged trespasser has a deed of conveyance in fee. The complainant did rent one lot, and insists that he also rented the adjoining lot, which extends from the rear of the first one to the Delaware River. This last one has been conveyed, and the purchaser has entered upon it, and has cut a sycamore tree and two pines.

his real and personal estate. One of the questions is whether he has succeeded in disposing of the former or not. If not, his heirs at law are interested.

The legatees and devisees named in the will are made parties, but the heirs at law of the testator are not. It is said that it does not appear but that the legatees and devisees are his only heirs at law. This, I think, might be answered by saying that they are not made parties as heirs at law, but only as legatees or devisees; consequently, they would not, as heirs at law, be bound. I understand the rule to be that you must present the party to the court in the precise capacity in which you wish to

charge or bind him. See Wade v. Miller, 3| Vroom, 296; Kirkpatrick v. Corning, 11 Stew. Eq. 234.

The demurrer must be allowed with costs.

Frank A. MALLALIEU

0.

Wilbur N. WICKHAM et al.

A judgment creditor of a mortgagor, who is made a defendant in a suit to foreclose the mortgage, may compel the mortgagee complainant, who took possession under his mortgage before such defendant obtained his judgment, to account for the rents and profits of the mortgaged premises.

MOT

[OTION to strike out parts of an answer to a bill to foreclose a mortgage. Denied. The case is stated in the opinion. Mr. W. C. Fisk, for the motion. Mr. H. V. Condict, contra.

Bird, V. C., filed the following conclusions: The complainant files a bill to foreclose a mortgage on the lands of one of the defendants. Another defendant, Newkirk, who was made a party because he had obtained a judgment against the mortgagor, answers and says that the complainant is in possession of the mortgaged premises, and has been for a long time, and that he should account for the rents and profits.

So much of the answer as relates to this possession and accounting the complainant moves

to strike out. He rests this motion on the

ground that he took the possession under his mortgage long before the defendant obtained his judgment, which act of taking possession so destroyed the mortgagor's equity of redemption that nothing of interest was left in the mortgagor that the judgment could become a lien upon; and consequently, having no lien, he is not entitled to be heard in his effort to compel the mortgagee in possession to account. It is said that this resistance is fully supported by the case of Ketchum v. Johnson, 3 Green, Ch. 370, 377.

In that case it is said: "By the English law the equity of redemption, even if the mortgagor remain in possession, cannot be sold on execution at law; but in this country it is otherwise. The mortgage is deemed with us a mere security for a debt, and the property may be sold by execution, subject to the lien. It may well be doubted, however, whether this is so when the mortgagee is in possession, for if the mortgagor surrenders that, the position of things is materially changed. The entry of the mortgagee, or a foreclosure, puts a new aspect on the rights of the parties. Before entry or foreclosure it is held that the equity of redemption may be sold on execution against the mortgagor, but not afterwards. Then the legal title in the mortgage becomes the subject of a sale by execution against him. This is the doctrine recognized in Jackson v. Willard,* 4 Johns. 42; Collins v. Torrey, 7 Johns. 282."

*See digested citations at end of cases, Lawyers' edition. [Ed.]

Accepting the law as thus expounded, the inquiry is not ended. The whole case is not met. The inquiry does not cease with the determination of the question whether or not the judgment creditor can find things tangible on which to levy; for equity often aids a judgment creditor when his law execution is wholly unavailing. Indeed, this seems to be a highly favored and most useful branch of equity jurisprudence. On every hand creditors are seen coming to this tribunal to have their judgments at law satisfied out of equitable interests of the defendants.

In this very case the defendant mortgagor has rights; manifestly equities exist between him and the complainant, else why is the complainant here in court? Why does he file his bill to foreclose? Undoubtedly, to cut off or bar the right of redemption which the mortgagor still has. "Once a mortgage always a mortgage."

I cannot conceive of such a thing as a mortgage or pledge without the right to redeem the thing pledged. But the complainant treats the title under which he has possession as a mortgage; and all the equities which the mortgagor ever had he still has, among which is the right to an account from the mortgagee in possession, extending to all the rents and profits. This is such familiar law that I will not cite authorities.

Therefore, it seems to follow as a matter of course that the judgment creditor of the mortgagor is likewise entitled to an account. It is simply a question of the amount due upon the difference whatever how he has been paid, if mortgage of the complainant. It can make no paid at all, whether by the cash of the defendsubject to the mortgage. In such cases the law ant mortgagor, or by the products of his lands does not bar the creditor, if the mortgagor refuses or declines to demand the account; the law permits the creditor to make it. Were it otherwise, debtors would find the most abundant protection against the just demands of their creditors, not only from executions at law, but from all proceedings in equity.

strike out, with costs. I will advise an order denying the motion to

William H. VARRIAN

v.

Caroline BERRIEN et al.

1. Where there are conflicting claims to a share of a fund which the holder of the fund desires to pay but cannot safely do so, on account of such conflict of claims, and he files a bill of interpleader, it is unnecessary to make the persons claiming the other shares of the fund in regard to which there is no controversy, parties to the bill; and if made parties, the bill will be dismissed as to them. In a bill of interpleader the claims should be specifically set forth, so that they may appear to be fit subjects of the bill and warrant a decree of interpleader.

2.

to compel discovery by the defendants. This he attempted to do by leave of Mr. Justice Parker, in the circuit court, under which such discovery was made as to induce her to file this bill. In the bill, she alleges that Williams was possessed of real estate, and that after this liability was incurred and the inability of the guardian to pay had been made certain, he conveyed his lands to his wife for the purpose of preventing the complainant from collecting the amount equitably due from him.

As I understood the counsel for the defendants, three objections are made to any decree against them: first, the complainant has no standing in court; second, the conveyance was not fraudulent, but bona fide, and for a valuable consideration; and third, a tender was made for the one half of the judgment at law, including costs and interests, and the cost of these proceedings up to the time of the tender, which was refused. The propositions thus involved we will consider.

Has the complainant a right to institute these proceedings? In other words, Has the court jurisdiction of the case made by the bill? It is urged that the want of jurisdiction arises from the absence of any judgment at law in favor of the complainant against the defendant. This objection, I think, beyond question, must fail so far as concerns the judgment at law on the bond against all the obligors. Surely this court would not require the idle process of establishing again by a judgment in a court of law the obligation which one of these parties is under to the other, since the statute authorizes a court at law to proceed without any such additional adjudication; and the force of this, I think, is conceded in the fact that a tender was made. I conclude that the court has jurisdiction of the case made by the bill.

Other things being established, Can this court, in this proceeding, compel the defendants to make disclosure of their transactions which are alleged to be fraudulent, in order to secure the payment of the amount which was voluntarily paid by Neilson after the judgment of the orphans' court finding the amount due, without also obtaining a judgment of a court of law determining the amount due as between the sureties? It seems to me this should be answered in the affirmative. A judgment is not always necessary. It was so determined by the chancellor in Haston v. Castner, 2 Stew. Eq. 536, and by the court of errors and appeals in the same case, 4 Stew. Eq. 697.

In that case the complainants had filed their claims under the statute, with an executor. The estate in the hands of the executor proving insufficient to discharge all the debts for which the testator was liable in his lifetime, the complainants filed their bill to set aside certain conveyances which had been made by the testator in his lifetime to two of his children. No judg ment was obtained upon the claims presented by the creditors, who were afterwards complainants in this court. Under the circumstances it was held that a judgment at law was not necessary. Without more, I think the spirit of the rule thus established ought to control this case.

But we have a case decided by the chancellor, and reviewed by the court of errors and appeals, more nearly like the one in hand. I refer to

the case of Shurts v. Howell, 3 Stew. Eq. 418, and 4 Stew. Eq. 796.

That case came before the chancellor after the case of Haston v. Castner, and was reviewed by the court of errors and appeals at the same time at which they disposed of Haston v. Castner. Shurts was the executor of Aller, and Aller and Howell were sureties to Wilcox on his bond as guardian. Wilcox became insolv. ent. The orphans' court found and adjudged that he had in his hands $3,285. Aller's administrator paid the whole amount with interest. Howell refused to contribute in his lifetime, and after his death his administrator refused to contribute. Howell in his lifetime had made an assignment of a bond and mortgage to his daughter. Aller's administrator filed a bill asking the court to declare that assignment fraudulent. The assignee of the mortgage and the administrator were made parties. There was a demurrer to the bill; one of the points urged was the absence of a judgment at law. The demurrer was overruled. In that case the proceedings show that the orphans' court had fixed, by its judgment, the extent of the liability of the guardian. The court of errors adopted the views of the chancellor. It seems to me that the rule there laid down is reasonable and just, and that any other would impose unnecessary hardships, risks and delays.

Looking at the case in hand, the judgment of the orphans' court fixed the amount due from the guardian. The judgment was not appealed from; and so long as it is not attacked for fraud or mistake I think it should be accepted as conclusive upon the sureties of the guardian. Hence, a judgment at law was unnecessary before the complainant filed this bill, in order to compel the cosurety to pay one half of the amount which the complainant's decedent had voluntarily paid, and to make disclosures respecting the conveyance of his property.

Look now at the question respecting the consideration: it is said that, prior to the marriage of Williams and his wife, he promised that all he had, or that all he had or might have, was to be hers. I think this must go for naught. The marriage took place in 1866, but there was no conveyance until after the emergency created by the failure of Mathews in 1880. To my mind this removes all doubt. But besides, Mrs. Williams says she did not know but that she would have married Mr. Williams anyhow. To accept of such an allegation, sustained only by the verbal testimony of the parties themselves, after the lapse of eighteen years, I think would be most dangerous, and wholly contrary to the policy of the law.

If I am correct in the foregoing views, the question of tender need not be considered; for, manifestly, the whole amount due was not tendered.

I think it is my plain duty to advise a decree for the complainant, in accordance with the prayer of her bill, with costs.

Charles F. FITCH
c.

Elizabeth M. T. BROWER et al.

Where a maker of a note desires to pay the amount due on it to the person enti