Jackson ex dem. Noah v. Dickenson & Thompson — 15 Johns. 309

Majority

p. 309

Jackson, ex dem. Noah, against Dickenson and Thompson.

Headnote

The; land of A. was sold under an the suit of B. tiie'Tst ’ of March: on the lath, a mortf^iTiand filia closure in c§an-j^B8 and A' the i9¿’the she-x'iff executed a deed to the purtiieTxedtim! Eld’ ^elates HmEofthe sill! IhaserT Puot Preluded from contesting the validity of the mortgage in an action of eject-he not being'E brnfand^sw! lu¡redWaprev¡ TiiTpendms E though not con" summated until afterwards.

Notice of a Its pendens in chancery, to quent purcim Tes w?thTh! Tibpma^ the

vi|fh°f jEore fre admi;ssible to snow that a ™stake , had been made in taking their verdict, and that it was enly'ftom That ‘ ey intended-

THIS was an action of ejectment brought to recover a lot of land in Orange street, in the city of JVezo- York, m the occupation of the defendant, Thompson. The cause was tried before Mr. J. Van Ness, at the Nem-York sittings, in T\ 7 t m/y December, 1816«

The premises in question formerly belonged to Ephraim Hart, against whom a judgment was docketed in favour of Joel Hart on the 5th of May, 1812, on a bond in the penalty of 30,000 dollars, conditioned for the payment of 15,000 dab a lors, and secured by a warrant of attorney. A fieri facias was issued on this judgment, returnable on the 16th of May, and delivered to B. Ferris, then sheriff of the city and county of Nem-York, on the 9th May, to which the sheriff returned that he had levied of the lands and tenements of the defendant therein, 4,759 dollars. The plaintiff also gave i n evidence a deed from the sheriff to his lessor in fee, for the , . . premises m question, and other property, dated the 1st of March, 1813, and a memorandum of a lease "of the premises for two years, from the plaintiff’s lessor to the defendant Thompson, under which he entered into possession, but in February, 1816, refused to pay rent to the lessor of the plaintiff, disclaimed holding under him, and claimed to hold under the other defendant, Dickenson.

The defendants produced in evidence a mortgage of the • • .. . ,, „ - . rT ° r. . .. premises in question, executed by Ephraim Hart and his wife to the defendant Dickenson, dated the 18th April, 1811, to secure the payment of a bond of the same date, conditioned to pay the sum of 2,442 dollars, with lawful interest, on or before the 18th of April, then ensuing. On the 10th of March, 1813, Dickenson filed a bill in the court of Chan - eery against Ephraim and Joel Hart and others, to foreclose ° , . ’ the mortgage, and a decree having been made for the sale , , ol the premises, they were sold by a master, and conveyed to Dickenson in fee, by deed, bearing date the 1st of March, 1816. Ferris, the sheriff, testified that the sale under J.

p. 310

Hart's execution was made on the 1st of March, 1813, after a regular advertisement, but that the deed was not delivered until the 19th. He further stated, that he was not present at the sale, and only knew from the returns of the officer who made it, to whom the land was sold: that from those returns it appeared, that of several parcels of land which were sold at the same time under the execution, some were bid off by Joel Hart, and some by the plaintiff’s lessor; that the property in question appeared to have been bid off by J. Hart, but that it was written on an erasure, and he could not say to whom it was originally entered; that within a day or two after the sale, (or, as he said on being examined again in "a subsequent part of the trial, it might have been on the day of the sale,) J. Hart, and Noah, the lessor of the plaintiff, called on him together, and directed the deed to be made out to the latter: that he did not recollect that Noah paid any money ; that when J. Hart and Noah came to settle, J. Hart said, that he had taken Noah's notes for the consideration money, and that the witness insisting to have some money to pay the printer’s bills, &c. J. Hart paid the sum, and he took his note for the residue. The witness, however, on his re-examination, stated, that he thought, on reflection, that it was Noah who brought him the money to pay the expenses of the sale. The plaintiff contended, that the bond and mortgage to Dickenson were usurious and void, and produced testimony in support of this allegation.

The deposition of Mordecai M. Noah was produced on the part of the plaintiff, who testified, that in 1811, shortly before the delivery of the bond and mortgage, he was present at one or more interviews between Dickenson and Ephraim Hart, respecting a debt due from the latter to the former, and that they spoke of a note held by Dickenson against E. Hart having been dishonoured ; that Dickenson appeared to be very pressing to obtain his debt; that on the 18th of April, in the same year, at the request of E. Hart, he took the bond and mortgage to Dickenson's attorney, for which he was to receive a note and check, and that on the 19th of April he received from the attorney E. Hart's note for 1200 dollars, dated December the 20th, 1810, payable in

p. 311

ninety days to J. Winter, or order, and endorsed by Winter, and E. Hartas check on the Manhattan bank, dated the 12th of April, 1811, for 1000 dollars.

Napthali Phillips, on the part of the plaintiffs, testified,

that in or about the month of December, 1810, E. Hart put into his hands, as a broker, to sell and raise money on for Hart, two notes drawn or endorsed, the witness did not recollect which, by E. Hart and J. Winter, one being the maker and the other the endorser, for twelve or fourteen hundred dollars each, payable at three and four months; that he procured the notes to be discounted by Dickenson, at the rate of at least one and a half per cent, a month, and that E. Hart was at that time much pressed for money. It was stated by another witness, on the part of the plaintiff, and who attended the sale under the execution, that Noah was present and bid, and that all the lots, excepting one bid for by the witness, were struck off to him. It was further proved, that about the 30th of March, 1813, Noah delivered J. Hart an accountable receipt of the latter for 260 dollars, which amount had been placed in his hands by Noah, and a sum in cash; the accountable receipt, the interest then due thereon, and the cash, amounting to 3400 dollars, for which sum J. Hart gave Noah a receipt, as for the full amount of the houses and lots purchased by Noah, under the execution against E, Hart. A variety of evidence, beside that which has been already detailed, was produced in relation to the question, whether Noah, the lessor of the plaintiff, was the real owner of the premises, or was merely a trustee for Ephraim or Joel Hart.

A verdict was found for the plaintiff, subject to the decision of the court, on this point, how far the plaintiff was bound by the proceedings in chancery. All the other questions arising in the cause were submitted to the jury.

At the time of bringing on the case to argument, the defendant also moved for a new trial, on the grounds that the verdict of the jury had been incorrectly taken, and of surprise, and for this purpose produced several affidavits.

Five of the jurors on the trial swore, that the only question of fact submitted to them was, whether a certain mortgage, executed by Ephriam Hart, under which the defendants

p. 312

claimed title, was usurious or not; and that the jury, by their verdict, found, and so expressed it to the court, that there was “ usury on the note,” meaning and intending one of the notes negotiated by Napthali Phillips. The deponents also said, that there was no other evidence offered on the trial to prove any usury on either of the notes, except the testimony of Phillips ; and that at the time oí delivering their verdict, the court inquired of the jury whether they intended to find that the usury in the note was connected with the mortgage, or to that effect; to which one of the deponents replied, that the jury did not intend to find so, but the deponents believe that the answer so made was not heard by the court.

The defendant, Dickenson, deposed, that having, previous to the trial, seen a copy of the deposition of Mor decai M. Noah, he was prepared with testimony to rebut, and did rebut, any presumption of usury in the mortgage, arising from the deposition, in a manner satisfactory to the jury, as appeared by their verdict; but not having had the least intimation or suspicion, that the plaintiff intended to impeach the note, the amount of which constituted a part of the sum secured by the mortgage, he was surprised by the testimony of Phillips, nor did he perceive the bearing of it, until his counsel were summing up, when he went for his bank and bill books, but was unable to find the entries, until after the judge had charged the jury, and that a few minutes after the jury went out, he found the entries, and had a witness in court to prove that the notes received from Phillips had been paid in bank. He also deposed that neither of those notes, (one being for 925 dollars and 75 cents, and the other for 675 dollars,) had any connection whatever with the note referred to by Mord ecai M. Noah; but that that note was for money lent by the deponent to E. Hart, at the rate of seven per cent, and that the difference between the sum specified in the mortgage, and the note and check of E. Hart, was actually paid by the deponent, in money, to E. Hart, before the mortgage was executed. There were two other affidavits in support of the allegation, that the notes mentioned by Phillips had actually been paid.

p. 313

Slosson, for the plaintiff.

The question is, whether the lessor is to be deemed a purchaser, pendente lite, so as to be barred by the decree of the court of chancery. The pendency of a suit in chancery commences from the service of the subpoena, after the hill is filed. (Murray v. Ballou, 1 Johns. Ch. Rep. 567 . 1 Vern. 318.) The general rule is, that all persons in interest, at the commencement of the suit, must be made parties. (Hickcock v. Scribner, 3 Johns. Cas. 311 . Johnson v. Hart, Id. 322 .) Noah became a purchaser on the 1st of March, 1813, and the bill was filed on the t Oth of March ; but it does not appear when the subpoena was served. It is clear, however, that it could not have been served until after the purchase of Noah, at the sheriff’s sale. His title, then, was not acquired pendente lite ; and he had an interest which entitled him to be made a party to the suit; and, not being a party, he is not bound by the decree.

Though the deed of the sheriff was not, in fact, executed and delivered until the 19th of March, yet it has relation back to the day of sale, or the time wdien it ought to have been delivered. (Jackson v. Raymond, 1 Johns. Cas. 85 . n. Heath v. Ross, 12 Johns. Rep. 140 .) So, in equity, whatever, for a valuable consideration, is agreed to be done¿ is considered as done, and money covenanted to be laid out in land, is considered as land, and descends to the heir. (3 P. Wms. 27. 215. 1 Salk. 154. 2 Powell on Contracts, 56. 58.) If the doctrine of relation, as laid down by the court, is applied to this case,, the lessor of the plaintiff must be deemed to have had a title to the premises on the 1 st of March, prior to a lis pendens, and which cannot be defeated by a decree in that suit, to which he was not a party. That a person acquiring an interest, pendente lite, need not be made a party, and is bound to take notice of the proceed" ings in the suit, at his peril, is deemed a very rigorous rule, and has been adopted only from necessity.

As to the affidavits which have been read to support the motion for a new trial, on the ground of newly-discovered evidence and surprise, we object, first, that affidavits of jurors to impeach or alter their verdict are not admissible (Dana v. Tucker, 4 Johns. Rep. 487 . Owen v. Warburton,

p. 314

4 Bos. & Pull. 326. Jackson v. Williamson, 2 Term. Rep. 281.) and, secondly, that the facts stated are not sufficient to show any surprise on the part of the defendants, or to induce a belief that the additional evidence, if it had been produced to the jury, would have induced them to find a different verdict. There can be no use in sending back a cause to another jury, if the new testimony cannot vary the result. "The jurors say they found usury in one of the notes, though not in the mortgage ; but their finding a verdict for the plaintiff shows they considered the mortgage usurious as well as the note.

T. A. Emmet, contra.

The question of usury ought to have been raised, if at all, in the suit in chancery, where justice would have been done, by directing the principal and the lawful interest'to be paid.

The lessor of the-plaintiff having acquired his title subsequent to the commencement of the suit in chancery, must be affected by the proceedings in that cause. The time when a subpoena is served, is material only between the parties to the suit. As it regards the rest of the world, 'the filing of the bill is the commencement of the suit; and a suit actually pending in a court of record, is notice to all the world. To take a conveyance of the property, during the pendency of a suit, is champerty, and renders the deed void. (Jackson, ex dem. Bryant, v. Ketchum, 8 Johns. Rep. 479 .) It is clear, that no money passed from Noah, at the time of the purchase. He knew of the proceedings in chancery, and was, then, a trustee for the parties to the suit in chancery.

Again ; the defendant D., as a mortgagee, had a right to bring his action to put Hart or Noah out of possession. He has, moreover, acquired a distinct title, as a purchaser, under the decree of the court of chancery. He has acquired a legal title, which merges all title under the mortgage. He is a bona fide purchaser undera judicial sale. The not beingmade a party can only give Noah a right to redeem ; and he might, by filing a cross bill, have claimed the equity of redemption. But after lying by, and permitting the suit to go on to a

p. 315

final decree and sale, he comes too late with his objection. In Jackson, ex dem. Bartlett, v. Henry, ( 10 Johns. Rep. 135 .) it was decided, that a bona fide purchaser, under a sale duly made pursuant to the statute, by virtue of a power contained in the mortgage, was not affected by usury, in the original debt for which the bond and mortgage were given.^[1]

Where a person brings his action, to be relieved against a usurious contract, he must first tender all the money really advanced. (Fitzroy v. Gwillim, 1 Term Rep. 153.)

Affidavits of jurors, compatible with their verdict, and which do not impeach it, are admissible. Here the jurors say only, that a mistake has been made, by the clerk or the judge, in entering their verdict.

Iiarison, in reply,

said, that it was a well settled and very salutary principle, that where a bill was filed, and a subpoena issued, all subsequent purchasers must be bound by the decree, without being made parties. The mere filing of a bill is not sufficient to create such a lis pendens, as will affect subsequent purchasers ; the suit must be in full prosecution ; the subpoena must be served. Such was the rule, as laid down in Murray v. Ballou. The law, as it has been stated, is not denied by the counsel, on .the part of the defendants. He alleges merely, that the lessor of the plaintiff was not a purchaser at the sheriff’s sale, and that he acquired no interest or title, until after the suit was pending in chancery. (Here the counsel discussed the evidence in the case.)

delivered the opinion of court. The rule that a lis pendens in the court of chancery, (1 Johns. Chan. Rep. 576.) which must begin from the service of the subpoena after the bill is filed, is considered notice to a subsequent purchaser, so as to affect and bind his interest, cannot now be controverted; but according to the facts disclosed by the testimony in this case, it does not appear that the suit in chancery had been instituted when the sale took place.

p. 316

The deed, although subsequently executed by the sheriff, to t[le ]essor 0f the plaintiff for the premises in question, cannot then be illegal and inoperative, on the ground of notice for the purchase was made on the first of March, and the filing of the bill, (without noticing the time of issuing the subpoena,) was not until the 10th of March. The subsequent delivery of the deed, being mere matter of form, must have relation back to the time of purchase at the sheriff’s sale. When the subpoena issued, does not appear. In Jackson v. Raymond, ( 1 Johns. Cas. 85 .) it is stated, in the opinion delivered by one of the judges, as a general principle, that whenever it is intended to be shown, that nothing passed by a grant, by reason that at the time there was a possession in another adverse to the grantor, the time to which the grant is to relate, is the time when the bargain or contract for the sale and purchase of the land was finally concluded between the grantor and grantee; and, consequently, any intermediate adverse possession, before the execution of the conveyance, which is the technical consummation of evidence of grant, can never affect it. If this principle is correct, it applies with equal, or greater force, to the commencement of a suit in chancery, between the time of a sheriff’s sale, when the purchase is actually made, and the giving of the deed by him. In such case, the delay in not delivering the deed is an omission of duty in the public officer, and his loches ought not to prejudice the rights of the party.

That the lessor of the plaintiff was the purchaser, cannot now be questioned. There was sufficient testimony to authorize the jury to infer it. Ferris, the sheriff, on being called a second time, stated, that, on reflection, he thought that Hart and Noah came to him on the day of sale, and requested that the deed should be given to Noah. If, then, Noah was a bona fide purchaser at the sheriff’s sale, before the existence of the suit in chancery, or there was a lis pendens, it follows, that to make the decree conclusive on him, he ought to have been made a party. Not being a party, so far as relates to his title, the rights of the mortgagee, under the mortgage sale, notwithstanding the decree, remained open for discussion,(and the purchaser at the sheriff’s sale

p. 317

retained the right of contesting its, validity at law, without tendering the amount of principal and interest due on the mortgage. If, on the trial, it should be made to appear that the consideration for which the mortgage has been given is usurious, it is sufficient to protect the lessor in claiming under the sheriff’s deed. The question of usury was therefore important, in settling the rights of the parties, and although the testimony on that part of the case might, perhaps, warrant the verdict, as it now appears; yet, from the facts stated by the jurors, as to what took place in delivering in their verdict, it would seem not to have been as entered by the clerk at the circuit. What the jurors have deposed must be noticed by the court, because their affidavits are not as to what transpired while deliberating on their verdict, but as to what took place in open court in returning their verdict, and shows that the clerk made a mistake in entering, or the court in directing, a different verdict. The information afforded by the affidavits of the jurors, is not to impeach, but to support the verdict really given by them. This mistake, then, is manifest; and from the affidavits of Pratt and Dickinson, there is reason to believe that the defendants were surprised with testimony on the trial; and it being an action of ejectment, in which the rule applicable to other cases, as to new trials, is not so rigidly enforced, it is the opinion of the court, that a new trial ought to be granted.

New trial granted.