Hoard v. Garner — 3 N.Y. Super. Ct. 179

Majority

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Hoard v. Garner.

Headnote

Where a person, for a valuable consideration, undertakes the collection of a bond and mortgage, and covenants in express terms “ to take proper means” to collect the amount secured to be paid by them, he is bound to see that such means are taken, by every person whom he employs to execute his covenant.

The retaining of a competent solicitor is a proper step to be taken, and, as far as it goes, is a compliance with the contract. But the responsibility of the covenantor

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does not cease- there; and if the solicitor fail to pursue the proper means for collecting the securities, the covenantor is answerable for his default.

What is the- proper measure of damages, in an action for the breach of such a covenant ? (See note (a) at the end of the case.) ⅛

The amount of the bond and mortgage is its presumptive value. It belongs to the defendant to prove it to be a worthless or a doubtful security.

(Before Oakley, Ch. J., and Sandford, J.)

May 18;

Sept. 29, 1849.

This was an action of covenant upon an instrument in writing, in these words:

“ Whereas, I have this day received from John W. Hoard, an assignment of a certain indenture of mortgage, bearing date the 81st day of October, 1843, made and executed by Charles W. Adams, and Henrietta his wife, to the said John W. Hoard, to secure the payment of two certain promisatory notes drawn by Charles W. Adams & Co., one in favor of Hugh Anchmeloss & Sons, or order, for $576 98, dated October 13th, 1843, and payable eight months after date, and the other in favor of Gamer & Co., or order, for $600 31, dated October 14th, 1843, and payable ninety days after date; and also to secure the payment of a certain bond or obligation bearing even date with the said indenture of mortgage conditioned for the payment of the sum of five hundred dollars to the said John W. Hoard, in one year from the date thereof, with interest; and whereas, I have surrendered and given up to the said John W. Hoard, the said note of $600 31, so drawn in favor of Garner & Co., as aforesaid. How, therefore, in consideration of the said assignment so made to me as aforesaid, and for the further consideration of one dollar to me in hand paid by the said John W. Hoard, I do hereby covenant and agree to and with the said John W. Hoard to take proper means to collect the amount, due and secured to be paid by the said indenture of mortgage so assigned as aforesaid, and to appropriate the amount which may be collected, after deducting all necessary expenses, as follows, viz.:—

“ In the first place, to retain the amount of the said note so given to Garner & Co., as aforesaid, with interest thereon, from the time the said note became due and payable. In the second place, to pay unto the said Hugh Auchincloss & Sons, if there

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shall be sufficient for that purpose, the amount of the said promissory note so given to them as aforesaid, and the interest which may be due thereon ; and, lastly, if there shall be sufficient for that purpose, to pay unto the said John W. Hoard, the amount of the said bond or obligation so given to them as aforesaid, and the interest which may be due thereon.

“ Given under my hand and seal this 31st January, 1844. “Thomas Gabnee.” (l. s.)

The breadles averred were the omission of Garner to tafee proper means to collect, the bond and mortgage. The defendant traversed the breaches in various pleas, and set up several defences, on which issues were joined.

The cause was tried before, in February, 1849.

On the trial, it was proved that in September or October, 1844, the defendant employed Mr. O., a lawyer in good standing in the profession, as to skill and knowledge, to file a bill to foreclose the mortgage mentioned in the covenant. A bill of foreclosure was soon afterwards filed by him, against Adams and wife, and some, others. There was a delay of about three years, in the prosecution of that suit; which delay was the gravamen of the present suit. That delay was attempted to be accounted for as follows : Previous to filing his bill, Mr. C. had made proper searches, but the clerk of Richmond County, where the land was situated, in the certificate of search furnished by him, omitted a trust-deed, previously executed by Adams and wife, the mortgagors, dated Feb. 4,1842, and recorded. By this deed, the grantors conveyed all the real estate to which Mrs. Adams was entitled, as one of the children and heirs of Isaac Gubberlv, deceased, embracing the mortgaged premises, to John Q. -Day, in trust for her separate use, free from the control of her husband, and exempt, from his debts. It appeared that on the 4th of Sept. 1843, Alfred Adams was substituted as trustee, in tbe place of Day, and that on the 2d of April, 1844, Joseph G. Gilbert was substituted as trustee in the place of Adams. Mr. 0. testified, that at the time he commenced the foreclosure suit he had no notice or knowledge of this trust deed. But lie was informed that a Mr. Day and a Mr. Alfred Adams pretended to

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have some claim upon the mortgaged premises; and without knowing what their claim was, he made them parties defendants, and first ascertained the nature of their claim when the answer of C. W. Adams was put in, which was on the 10th of Dec. 1844. The answer of Day and Alfred Adams was served on the 8th. of March, 1845. It was substantially a disclaimer, stating that all their interest had been transferred to Joseph G. Gilbert. Mr. 0. also testified that after the answers had all come in, and the cause was in readiness for hearing, he entertained very great doubts whether the plaintiff could succeed; which doubt was founded on the trust-deed. That he was deliberating on that subject, and making some examinations for the purpose of seeing whether the trust-deed could be successfully attacked or not. That in March, 1845, Mrs. Adams, and Gilbert, the trustee, filed a bill, which was substantially a bill for a partition of the real estate of which her father died seized.

That bill alleged the seizin and death of Isaac Cubberly, in 1841, leavingfive heirs, his will, and that it was proved in November, 1841, by William and James Cubberly, sons and executors of the testator. The trust deed of February, 1⅝42, was then stated ; also the recording thereof in June, 1842 ; then the substitution of trustees, and then the title of the complainant, whereby he claimed to be seized in fee, as trustee of Henrietta Adams, as tenant in common of and in one equal undivided fifth part of the land in question. The bill then set forth the bond and mortgage given by Adams and wife to Hoard, and the assignment by Hoard to Garner; and a subsequent mortgage given by Adams and wife to Seaver and Dunbar, and one still subsequent, given by them to Lee & Brewster. The bill then alleged that those three mortgages were not valid liens upon the land, or any part thereof.

It prayed a reference to a master to inquire whether there were any liens or incumbrances on the land, and as to the several rights and interests of the parties interested ; and that the three mortgages might be decreed to be no lien or incum-brance upon the land ; and for a partition ; or, if that should be held impracticable, for a sale of the premises. The parties defendants were Adams and his wife; William and James

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Cubberly; tlie other tenants in common; Hoard, Gamer, Seaver & Dunbar, and Lee & Brewster. This bill, filed by Gilbert, was served on Mr. C. as solicitor for Garner, on the 3d of May. .No answer was put in by Mr. Goon behalf of Garner, there having been an understanding between him and the plaintiff’s solicitors, that it might be put in at any time. Mr. Sedgwick was soon after substituted as solicitor for Garner, and had the principal management of that suit. In June, 1845, the bill of foreclosure filed by Mr, G. on behalf of Garner, was dismissed, as to Day & Adams, and it then became necessary to amend the bill, and fi'e a supplemental bill, which was done in August, 1847. In the meantime, the mortgaged premises had been sold by the executors of Isaac Cubberly, deceased, in pursuance of a power contained in the will of the testator, to David J. Tysen. The supplemental hill set forth that sale, and alleged that the executors had in their hands a large sum of money, and certain securities, being the share of Mr. and Mrs. Adams of the purchase money. The bill prayed for an injunction against the executors, to prevent them from parting with the money and securities; and that the same might be delarecl to be covered by, and applicable to, Hoard’s mortgage, and that they might be so applied.

William Austin, the solicitor for Adams and wife, in the foreclosure suit, testified, that no replication to either of these answers of Adams and wife, or Day and A. Adams, was filed, and the bill was dismissed for want of prosecution as to the defendants, Day and A. Adams, on the 14th of June, 1845, on a motion made by them for that purpose, which was not opposed. The next witness heard of the suit, was the substitution of Mr. Sedgwick in place of Mr. G. as solicitor, in the summer of 1846 or 1847. Nothing was clone until August, 1847. No proofs were ever taken, and the cause was never noticed for hearing, except at January Term, 1849, and then, for the first time. It was in readiness for hearing on bill and answer as to C. W. Adams and wife, and jjro confesso as to all the other defendants, in the summer of 1845.

It appeared from the testimony of Mr. J. S. Sandford and Mr. David A. Fowler that the state of the calendars and the amount and course of business in the courts, at the time the foreclosure

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suit was commenced, and while it was pending, was such that the foreclosure suit might probably have been heard within a year from the time of being placed upon the calendar. That a cause standing for hearing on bill and answer of the date of December 10, 1844, would have been No. 3, on the 3d class of causes for April term, 1845, and Ho. 24 from the top of the calendar; and a cause, of the date of March 8, 1845, would have stood So, 7 on the third class. That, by filing a replication in the foreclosure suit commenced by Garner, the plaintiff’s solicitor might have entitled himself to put the cause on the calendar of the Assistant Vice-Chancellor, which would have expedited the cause.

The plaintiff paid the Auchineloss note with interest, on the 3d of June, 1846.

The plaintiff having rested his case, the defendant’s counsel moved for a nonsuit, on the grounds: 1. By the employment of a competent and skilful lawyer to foreclose the mortgage, the defendant’s covenant was performed and satisfied. Besides, it does not appear, in point of fact, but that the suit was properly conducted. 2. The trust deeds set out in the answer of Adams and wife, are a complete bar to this suit. 3. The defendant might himself have pursued the litigation, or taken steps to hasten the one already begun. 4. If not, it is insisted that the mortgage is still good and collectable, and can be collected, and the plaintiff has sustained no damage.

The motion was denied, and the defendant’s counsel excepted.

The defendant’s counsel then recalled as a witness William Austin, who testified as follows : — “ I was complainant’s solicitor in the suit of Gilbert. Hoard did not appear, and the bill ivas taken as confessed against him for want of appearance. Garner did not answer. The second and third mortgagees answered; replications were filed to these answers in November, 1845. Order to close proofs was entered February 1, 1846. Subsequently, James and William Cubberly, the executors, applied to open the order pro confesso against them, and to dissolve the injunction. This was in August or September, 1846. I gave them a stipulation to take the same objection as if they had demurred. The injunction was dissolved on their motion by

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Vice Chancellor McCoun, June 26, 1846, The bill was dismissed, on the complainant’s own motion, with costs. Upon the different motions that had been made, I became satisfied, that it was very doubtful whether the bill would be sustained or not.”

Theodoee Sedgwick, for the defendant,

testified, “ I became acquainted with this litigation in July, 1846. Previously Charles E. Eacey and wife filed a bill, against these parties, the Adams’s and Cubberlys ; Mrs. Eacey was one of the heirs of Isaac Cubberly. The subpoena to answer served on Garner, was handed to me a few days prior to my being substituted in the two other suits. He desired me, at the same time, to take charge of the other litigation. The three suits then remained in my charge. The foreclosure suit is still going on, the others have been dismissed. The whole amount of the claim was small, compared wdth the litigation. There were three chancery suits when the matter came into my hands, all involving questions of more or less difficulty. It appeared to me, the whole fund would be used up in expenses, if they all proceeded. I thought it best to make as little expense as possible, until some decision was made in the suit brought by Mr. Gilbert, which, I supposed, would relieve us from some of the difficulties. I thought also, there was doubt of the result of the foreclosure. The settlement of Mrs. Adams involved a very nice question of the statute of trusts. In view of the difficulty and expense, I refrained from making any further expenses in the foreclosure and Eacey suits, until the Gilbert bill was dismissed in 1841. The bill filed by Eacey was a bill with a double aspect. One branch of it was to compel David I. Tysen to complete a sale which had been made to him by the executors. The prayer of the bill was among other things to pay Mrs. Adams’ share into court for the benefit of the persons entitled thereto. It was demurred to by Tysen, and dismissed on a hearing, by Vice Chancellor Sand-ford.” On cross-examination the witness testified, that the suit instituted by Eacey did not dispute the mortgage, and was not in conflict with, or adverse to the foreclosure. He knew nothing of the existence of the covenant between these parties, until shortly before this suit was brought.

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Raymond M. Tysen, for the plaintiff,

testified, that he knew of the sale by the executors of Isaac Cubberly to David I, Tysen. The price paid by the latter was $9200.

The testimony was here closed, and, upon the suggestion of the court, a verdict taken for the plaintiff for $2000, by consent, subject to the opinion of the court on the whole case, and subject to adjustment, with liberty to either party to turn the case into a bill of exceptions.

C. II Smith, for the plaintiff.

I. There has been a breach of covenant. (1.) By gross delay and neglect in the prosecution of the foreclosure. So suit, was commenced till October, 1844. At every term from January, 1845, to July, 1847, the cause might have been reached and heard. Mr. Sandford testifies that it took him but a year to collect a severely litigated mortgage. In Sept. 1848, thirteen months after this suit was brought, Garner’s solicitor started afresh, by amending his hill and by filing a supplemental bill, all which was known to be necessary nearly four years before. The property sold for $9,200, one fifth of this is $1,850, a margin of some $150 over* the mortgage; enough to cover interest and expenses had due diligence been used. A prompt suit in Feb. 1844, for the part then due, would have secured an early decree and an abundant fund.

The advice of counsel was sought to be made conclusive on the plaintiff as a justification of the delay. Neither solicitor was made acquainted, by the defendant, with the obligation he was under to Hoard. This was expressly so as to Mr. Sedgwick. Had he given them instructions, or imparted this information, the delay would either not have occurred or he would now have a claim over on them. But the defendant is liable for their default. (Merchant’s -Battle v. Allen, 22 "Wen. 228.)

(2.) Gilbert’s suit was no excuse for the delay. It had surely been right to bring the foreclosure to a hearing. It was at least doubtful to wait twenty-seven months without compulsion. Gilbert’s suit was not put in a condition to be expedited; for Gamer put in no answer. lie should at least have demurred.

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(3.) This covenant did not constitute the defendant a mere representative agent, “ It looked to the thing itself to be done. It was not a mere delegation of a trust power.” {Allen v. Merch. Bk.. 22 Wen. 233-4.) Even in that view there is a breach. {Schultz v. Pulvcr, 11 Wen. 361.) The obligation is to take the ordinary mode by a suit brought in due time, and prosecuted with due diligence to a decree. (Story on Agency, § 199, 200, 208.) It is not the “ ordinary mode” of foreclosing a mortgage, to wait till other suits are decided, to partition other people’s land or cancel other people’s mortgages. Thus when, in August, 1847, this suit was brought, the defendant had literally progressed not one step towards collection; for he started afresh in Sept, 1848.

II. The damages are the value of the bond and mortgage, including the personal liability of Adams ; which value is,grrim& facie, the nominal value. {Le Guen v. Gouverneur, 1 Johns. Cas. 437 , note; Kortright v. Commercial Bank, 20 Wen. 91, 22 Id. 348 ; Allen v. Suydani, 17 Wen. 370, 20 Id. 321; Shultz v. Pulvcr, 11 Wen. 361; Ingalls v. Lord, 1 Cow. 240 .) And in analogy to actions against sheriffs for neglect to execute process. (Bank of Rome v. Gwrtiss, 1 Hill 275 ; PardeeY. Robertson. 6 Id. 551; Patterson v. Westervdt, 17 Wen, 543 ; 1 J. R. 215 ; 2 Id. 454; 7 Id. 189; 6 Id. 270; 2 Mass. 526 ; 2 Bay. 395 ; 2 Day 195 .) See Love joy v. Hutchins, 23 Maine Rep. 272 , where it is held that no deduction can be made for expenses which would have taken place had no breach occurred. The attempt to impeach the mortgage is unsuccessful. The mortgage is good. This deed, is a trust of personal property. (Kane v. Golf 7 Pal. p. 521; 24 Wen. 641; 2 Kent, Comm. 352.) Adams and wife held the land subject to a power to sell, which power was imperative. (R. S. 717, § 2, 721, § 45, 723, § 56, 727, § 96.) It was an “ interest” in land as defined by 2 R. S. 73, § 6.) This trust-deed was void as against, the mortgage, under 2 R. S. 68, §§ 1 to 4, 72, § 1. ( 6 Hill 438 , 4 Id, 424) ‘ And as a trust of personal property, it is within § 1, p. 70. If it is a trust of real estate, it is void under § 55 of the statute of trusts. (1R. S. p. 723.) Besides the mortgage is valid under the trust-deed. Mrs. Adams had all the powers of a feme sole, and could alien

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and encumber it at pleasure. The consideration, moreover, is a present one, not an old debt. (Meth. Epis. Church v. Jaques, 3 I. C. E. 86, and cases cited ; 17 J. R. 548 ; North Am. Coal Co. v. Dyett, 7 Pai. 14 , 20 Wen. 573 ; Gardner v. Gardner, Id. 116 , 22 Id. 528; 2 Kent, § 28, 161-7, and notes ; 2 Story, Eq. Jur. § 1399, and seq.; Leaycraft v. Hadden, 3 Green Ch. R. 512.) *

T. Sedgwick, for the defendant.

I. The covenant sired on was “ to take proper means to collect the amount secured by the mortgaged The first question is, what, under the circumstances, are “ proper means ?” 'We insist that the employment of a competent professional gentleman, in good standing, was itself a satisfaction of the covenant; and it is absurd to suppose that Mr. Garner intended to assume the conduct or the responsibility of the litigation, or to guarantee Mr. Hoard against legal errors. From the nature of the case, it was impossible for Mr. Gamer to give Mr. C. any specific instructions. All he could possibly do was to give him general directions to collect the amount due on the mortgage.

II. In point of fact the “ means’- employed by Mr. C. were “ proper.” He exercised his judgment in the matter, and was guilty of no oversight; but on a view of the whole case, thought it inexpedient to proceed with the first suit, till the other was decided. If the covenant had been by Mr. C. himself, and if he had erred in judgment, still he would not be responsible.

III. Rut the “ means” were not merely proper within the meaning of the covenant. Mr. C.’s course was the true one, and any other would have been a sacrifice of the interests of his clients. The question involved was of very doubtful issue.

IY. If there were any unnecessary delay, Mr. Hoard, who was a party defendant, should have acted himself. He might have moved to dismiss the bill for want of prosecution.

Y. The plaintiff has sustained no damage. Either the mortgage was good or bad. If bad, it could not be collected; if good, it can still be collected. Either way the plaintiff has lost nothing.

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By the Court.

Whatever might have been our view of the effect of the defendant’s covenant, if it had been an open question, we are required by the authority of the case of Allen v. The Merchants' Bank, ( 22 Wend. 215 ,) in the court for the correction of errors, to give our judgment for the plaintiff. It was there settled that, on the deposit of a bill of exchange with a banker residing here, for collection in another state where it was payable, the banker was liable to the holder for any neglect or omission of duty, in respect of such collection, on the part of his agent, or the notary employed by him, in the foreign state.

The principle established was, that the implied contract of the banker was an understanding to do the thing itself, and was not the delegation of an agent or attorney to procure the thing to be done. That the contract looked mainly to the thing to be done, and his undertaking was for the due use of all proper means for its performance ; and it was not a contract only for the immediate services of the agent, and his acting faithfully as the representative of his principal. That in the latter case, the responsibility ceases with the limits of the personal services undertaken ; in the other, it extends to cover all the necessary and proper means for the accomplishment of the object, by whomsoever used or employed.

In the case at bar, the defendant for a valuable consideration undertook the collection of a bond and mortgage. He covenanted in express terms “ to take proper means” to collect the amount secured to be paid by them ; and he is therefore clearly responsible that such means should be taken, by every person whom he employed, to execute his covenant. The retainer of a competent solicitor was undoubtedly a proper step to be taken, and as far as it went, was a compliance with the contract. But the responsibility did not cease there ; and if the solicitor failed to pursue the proper means for collecting the securities, the defendant must answer for his default.

It was contended that proper means were taken in this case ; that the long delay which occurred was the result of no oversight on the part of the solicitor employed; in his judgment it

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was inexpedient to proceed tinder the circumstances, and his course was the true one.

The good faith of the solicitor is not impeached. This, however, did not satisfy the covenant; nor did the exercise of his judgment, if that judgment were wrong, and caused unreasonable delay. We have considered the question with more than usual care and deliberation, and we cannot resist the conclusion, that the course pursued by the solicitor was unwise, and in respect of the defendant’s duty to Hoard, was entirely unwarrantable. No good reason is shown why the foreclosure of the mortgage was not commenced immediately after the defendant received it. Passing by the nine months thus lost before proceedings were instituted, in December, 1844, the solicitor became fully informed of all the difficulties in the case, by the answer of Adams and wife. He should then have brought Mrs, Adams’ trustee before the court at once, by an amendment of his bill. If this course had been pursued, *the bill afterwards filed by Mrs. A. and her trustee would never have been exhibited, or, if exhibited, it would have been no more than a cross bill in the foreclosure suit, disposable either summarily, by a demurrer, or more deliberately, by being carried forward with the original -suit. Whether Mrs. A.’s bill bad been filed or withheld, if the original suit had been pressed on with ordinary diligence, after the receipt of the answer of Adams and wife, there is no doubt that it would have been brought to a hearing, and a decision obtained, before 1846. Even after the bill of Mrs. A. and her trustee was exhibited, the defendant could have expedited either the one suit or the other, and brought the matter toa conclusion. Rut he did neither. He was entirely passive from December, 1844, until after this suit was commenced, a period of more than two years and a half. It is said the marriage settlement of Mrs. Adams presented a doubtful and difficult question. If it did, there was the more reason for urging on the suit, because a greater delay would be inevitable, if the suit were to be litigated.

Without dwelling upon the subject, it suffices to say, that proper means were not taken by or in behalf of the defendant,

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to collect the bond and mortgage, and he is liable for a breach of his covenant.

The inquiry remains, what is the extent of that liability ? It is said, on his part, that the mortgage was either good or bad: if it were bad, he could collect nothing; if it were good, the plaintiff has lost nothing. This, we think, is not sound. The mortgage, however good it may be, avails the plaintiff’ nothing, so long as the defendant retains it, and neglects to collect it. He sustained his damages, (if it were good,) two or three years since, when he was entitled to receive his share of the security, and received nothing. His injury is the same as if he had held the defendant’s note, payable at that time, and it had remained unpaid.

As to the amount of damages; the amount of the bond and mortgage is its presumptive value. It belongs to the defendant to prove it to be a doubtful or a worthless security. (Ingalls v. Lord, 1 Cowen 240; Allen v. Suydam, 17 Wend. 370 ; S. C. 20 Ibid. 321; Patterson v. Westervelt, 17 Ibid. 543.) No attempt was made to impeach the value of the security, in respect either of the adequacy of the mortgaged premises at the time of the transfer, or the solvency of the obligor in the bond ; but it was contended that the premises were vested in Mrs. Adams’s trustee, and the mortgage * never became a lien upon them. The obligor’s responsibility would still remain, if this were all true. It was proved that the lands mortgaged had been sold under the power in the will of Mrs. A.’s father, and produced the gross sum of $1850, which, after the commissions and expenses were deducted, would not have paid the mortgage and the interest which had accrued, when this suit was commenced.

Then, as to the validity of the mortgage as a lien. The bond was equitably converted into personalty, by the will of Mrs. Adams’s father; and as such, it appears to us was wholly within her control by the provisions of the settlement, and was, by her act in mortgaging it, subjected to the payment of this debt. (North American Coal Co. v. Dyett, 7 Paige 14 ; S. C. 24 Wend. 573 ; Gardner v. Gardner, 7 Paige 116 ; S. C. 22 Wend. 528 ; Leaycraft v. Hadden, 3 Green’s Ch. R. 512.) We need not, however, decide this point. The damages

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are subject to adjustment; and in ascertaining tie amount, (which will he done at chambers,) proof may be made, of what was stated at the argument, that the defence to the mortgage on the marriage settlement, had been abandoned.

Another consideration will arise on the adjustment. It is obvious that if the foreclosure had been pressed to a sale prior to 1846, the undivided fifth of the farm, sold by itself, and subject to the power of sale vested in the executors of Mrs. A.’s father, would not have produced as much as it has done by the sale of the entire farm under the power. Referring this and the details of the damages to future adjustment, we wall at this time order judgment for the plaintiff for the amount thereby to be ascertained.^[1]

(a) (a) After hearing counsel, and receiving some evidence by consent, the court adjusted the damages as follows : Assuming the whole farm to have been worth as much in 1845, as when sold in April, 1846. A reasonable time to have collected the mortgage and sold the premises would have brought the collection to, say, Oct. 1845. Value of whole farm, then, say, ....... $9250 00 8750 00 1750 00 One fifth, is Of which, allow for executor’s expenses, &c., and commissions, which, whether sold on foreclosure or not, would hav-¾ finally been a charge on the proceeds; also auction fees, advertising, &c., &c. . . . ■> $ 500 00 (The share actually realized, as Mr. Sedgwick says, $1736 80) If it had been, sold in 1845, undivided, and subject to the power of sale in the executors, there being no one creditor with sufficient interest in the matter to buy it in, it would have brought, say 10 per cent less, 1575 00 From this, deduct cost of foreclosure on bill and answer, say, 175 00 Counsel fees, #75 to #100 . . . . ■ . 75 00 Master’s bill on sale, . . . . . . . 50 00 (Mortgagor insolvent, &e.)... $ 200 00 Net proceeds, in October, 1845, 1375 00 Gamer was first to retain the amount of his own note, viz, $600 31 And interest from Jan. 15, 1844. Int. 1 year 9 months, 73 53 ■-- $ 673 84 Bal. for Auchineloss & Hoard, 701 16 *193 Brought forward, . . . . 701 16 Int. from Oct. 15, 1845, to Oct. 27, 1849 — 4 years 12 days, . . 197 94 Amount, on this computation, 899 10 If we take the actual result of the executor’s sale, and make no allow- - anee for depreciation on sale of an undivided interest, the matter will stand thus: Proceeds 1736 80 Exp. of foreclosure, say #200 to [ XXX XX XXXX ] 80 Gamer’s debt, 15 Oct. 1845 673 84 837 96 Int. 4 years and 12 days, ......... 236 55 Judgment for plaintiffs for . #1074 51 As to collateral suit of Gilbert, it probably would not have existed, if the foreclosure had been diligently prosecuted. The other suit unimportant.

Cases cited

Ingalls v. Lord 1 Cow. 240 N.Y. Sup. Ct. p. 187
Allen v. Merchant's Bank 22 Wend. 215 N.Y. p. 189