Feuchtwanger v. McCool.

MYER FEUCHTWANGER

V.

JOHN MCCOOL and others.

1. Where the last day for filing an answer falls on a legal holidaye. g., Christmas-filing it on the next day on which the clerk's office is open will be sufficient.

2. Where a foreign notary public affixed his official seal, and signed his name (but without adding his official designation, though it was contained in the jurat) to the jurat of the affidavit taken out of this state, to an answer in chancery,-Held to be sufficient as a compliance with the 164th rule, and motion to take the answer from the files, for that cause, was refused, although the statute (Rev. p. 488, 5) requires that his official designation be annexed to his signature, “where an oath to be used in any suit or legal proceeding in this state is taken out of this state * before a notary public, &c."

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Bill to foreclose. Motion that answer be ordered off the files.

Mr. T. A. Jobs, for the motion.

Mr. G. Collins, contra.

THE CHANCEllor.

Motion is made that the answer be ordered to be taken from the files, on the ground that it was filed out of time; that it is not properly verified, and is defective as an answer, because it does not properly plead the defence which it seeks to set up.

The time for answering expired on the 25th of December. The answer was filed on the next day. The 25th being a legal holiday, and the answer having been filed on the next day thereafter on which the clerk's office was open, the answer was filed in due time. Dan. Ch. Prac. 354.

29 151

64L 156

Stover v. Reading.

The affidavit to the answer was taken in the state of New York. The jurat states that it was sworn and subscribed before "the subscriber, a notary public in and for the city, county, and state of New York, as witness my hand and official seal," and it is signed, but the notary has not added his official designation to his signature. His notarial seal is affixed. By the 164th rule of this court, where an answer is sworn to out of this state, the oath may be taken before a notary public, but in such case it must be certified under his seal. The rule has been complied with in the case under consideration. The statute (Rev. p. 488, § 5), indeed, provides that where an oath, to be used in any suit or legal proceeding in this state, is taken out of this state, it may be taken before a notary public of the state where it is taken, and a recital in the jurat that the person before whom the oath is taken is such notary, and his official designation annexed to his signature, and attested under his official seal, shall be sufficient proof that he is such notary, but the rule requires only a certificate under seal.

The alleged defect of the answer, as a pleading, is not a ground for ordering it off the files. Travers v. Ross, 1 Mc Cart. 252, 257; Squier v. Shaw, 9 C. E. Gr. 74. The motion is denied, with costs.

JACOB STOVER and others, administrators,

V.

PHILIP G. READING and others.

1. A bill filed by administrators must allege that their intestate is dead, and that letters of administration have been issued to them.

2. A mere allegation that a purchaser took title with notice of a suit to which neither he nor any one under whom he claims was a party, to set aside as fraudulent the cancellation of a mortgage on the prop

Stover v. Reading.

erty, is insufficient to charge him with the result of the suit, which was a decree setting aside the cancellation. The facts constituting the fraud must be set forth.

Bill to foreclose. On special demurrer.

Mr. E. W. Evans and Mr. James Wilson, for demurrants.

Mr. J. N. Voorhees and Mr. John T. Bird, contra.

THE CHANCELLOR.

The grounds of demurrer are, first: that the bill does not state the fact that the complainants' alleged intestate is dead, or that letters of administration of his estate have been issued to them; and, secondly, that the statements of the bill are not sufficient to call for answer.

The first ground is, obviously, well taken.

To consider the other ground: The bill seeks to foreclose two mortgages on land owned by the defendant, Reading. It alleges that a statement to the effect that these mortgages were cancelled, which had been entered on the record of the mortgages, was fraudulently entered, and that proceedings in this court were duly instituted with a view to setting aside that cancellation as fraudulent, and to re-establish the mortgages, which resulted in a decree annulling the cancellation and re-establishing the mortgages; and that Warman, under whom Reading claims as grantee, had, when he took his title, full knowledge of the fraud by which the entry of cancellation had been obtained, and of the pendency of those proceedings, and on taking his title demanded and obtained indemnity against the result of those proceedings. It states that, after taking title to the land, Warman mortgaged the property to Reading and others, and charges that the mortgagees knew at the time of taking these mortgages, of the pendency and object of the before-mentioned proceedings. It further states that Warman conveyed the property to Thomas B. Wigfall, who conveyed it to David McDaniel,

Prickett v. Tuller.

and avers that they had like notice in taking their respective conveyances. It states, also, that Reading filed his bill in this court to foreclose his mortgage, and at the sale under the proceedings in that suit became the purchaser of the property, and now holds it by that title. The defendants. insist that the facts constituting the alleged fraud, with notice of which they are charged, should be set forth in the bill, and that the pleading is, therefore, defective.

The objection is well taken. Warman derived his title to the property under Mrs. Wood. She was not a party to the proceedings to set aside the cancellation. Neither was Warman nor Reading. They are none of them bound by them. Wood v. Stover's adm'rs, 1 Stew. 248; Stover v. Wood, 11 C. E. Gr. 56.

The fact that they all knew of the pendency of the suit and its object, will not make the adjudication in that action. binding on Reading. A most important part of the relief sought by the complainants in this cause is the establishment of the complainants' mortgages, notwithstanding the cancellation, as against the defendants. It is not enough to aver that the cancellation was fraudulently effected. What the fraud consisted of should be stated.

The demurrer will be sustained.

WILLIAM A. PRICKETT

V.

CHAUNCEY E. TULLER and others.

An injunction granted upon an allegation of the fraudulent concealment of a written agreement between the defendant and another defendant, in an action at law, will not be dissolved upon the answer of one defendant and the affidavit of the other, without the answer of both and the production of such agreement.

Prickett v. Tuller.

Bill for relief. Motion to dissolve injunction.

Mr. J. T. Temple and Mr. L. T. Hannum, for the motion.

Mr. W. H. Vredenburgh, contra.

Prickett exchanged notes with White, and delivered the note which he received from White to Ellis, as security in certain business transactions between them. Ellis failed in business, and transferred the note to Tuller, who sued White upon it, and recovered judgment. Prickett insisted, in this suit, that, when Ellis transferred the note, he owed Ellis nothing, and that the transfer to Tuller was in fraud of him, and designed to enable Ellis fraudulently to collect the note from White, when there was no debt from Prickett to Ellis. He insists that Tuller is merely trustee for Ellis. The payment to Tuller of the money collected by the sheriff, in the suit at law against White, was enjoined.

Tuller answered; Ellis did not. It appeared by the answer and Ellis's affidavit, filed with it, that, in the transfer of the note to Tuller, Ellis reserved an interest in the proceeds of the collection.

THE CHANCELLOR.

As this case stands, on the bill and affidavits and the answer of Tuller and affidavits, the injunction ought not to be dissolved. The agreement made between Tuller and Ellis, by which the former promised to pay to the latter certain money, as part of the consideration of the transfer of White's note to Tuller, is an important document in the consideration of this case, and it ought to be produced. On the statements of Tuller's answer and Ellis's affidavit, it is evident that, as to $600, or thereabouts, of the amount of the judgment against White, Tuller is trustee for Ellis. Ellis should answer, and the text of the agreement appear.