Tompkins v. Ward — 4 Sarat. Ch. Sent. 594

Majority

p. 594

Tompkins v. Ward, impleaded with others.

January 13th, 14th ;

June 9th, 1847.

Headnote

A pléa that the defendant is a bona fide purchaser for a valuable consideration, without notide, must show to whom the consideration was paid, as well as its actual payment before recéiving notice of the complainant’s equities.

Such a plea necessarily admits the charges in the bill which go to make out the complainant’s title, so far as it is independent of the defendant’s. It is incompatible for the defendant, by his answer, in support of such a plea, to put in issue any fact stated in the bill, which does not tend to countervail or disprove the defence set up by the plea.

In the answer with a plea of bona fide purchase, &c., the defendant must deny every allegation in the bill, which, if admitted, would fix him with notice, actual or constructive ; but when the facts alleged are not within his personal knowledge, he is merely to deny notice thereof; he is not to deny their existence besides, thereby creating unnecessary collateral issues.

Where the bill contains no averment as to the payment of the consideration of the defendant’s purchase, the answer in support of a plea of bona fide purchase, &c., should not repeat the averments of the plea, touching the payment of the consideration.

This case came before the court on the plea and answer of Caleb T. Ward, to the bill of complaint. The bill is fully stated in the report of the case on the plea of Mr. Anthon, ante, page 97.

The plea of Ward was interposed to all the relief prayed by the bill; and to all the discovery thereby prayed, save and except so much thereof as was answered at large in the answer accompanying the plea, (the portions so excepted being particularly specified in the introductory part of the plea ;) and it pleaded in bar, that one Thomas Hulme, previously to and on the twenty-first day of November, 1825, and thence until and at the time of the delivery of the deed, and at the payment of the consideration money hereinafter mentioned, was or pretended to be seised in fee simple, of all the lands and premises at Castleton, by that deed granted and conveyed to the defendant, free from all incumbrances and trusts whatsoever, and previously to and on the same twenty-first day of November, and until the delivery of the possession thereof unto the defendant, under the agreement hereinafter mentioned, was in the actual posses

p. 595

sion of all the same lands and premises. And the defendant believing, that Thomas Hulme was so seised and entitled, and that the land and premises were in fact free from all incumbrances and trusts whatsoever, on the twenty-first day of Nov., 1825, agreed with Thomas Hulme, for the absolute purchase of the fee simple and inheritance thereof, for the price or consideration of five thousand nine hundred dollars, to be paid by the defendant to Thomas Hulme, and that in pursuance and execution of such agreement afterwards, on the seventh day of March, 1826, a certain indenture or deed of conveyance, bearing date the seventh day of March, 1826, between Thomas Hulme and Alice his wife, of the one part, and the defendant of the other part, was duly made.and executed, and by that indenture Thomas Hulme and his wife, for and in consideration of the sum of five thousand nine hundred dollars, acknowledged in the indenture to have been paid to them by the defendant granted, bargained, sold, aliened, remised, released, enfeoffed, conveyed and confirmed unto the defendant, his heirs and assigns forever, all those certain messuages, dwelling houses, lands and premises, situate in Casleton, in the county of Richmond and state of New York, bounded as follows : (describing the same at large.) To have and to hold the granted, bargained and described premises, and every part and parcel thereof, with the hereditaments and appurtenances, unto and to the sole and proper use, benefit and behoof of the defendant, and his heirs and assigns forever; and in which indenture of conveyance is contained a covenant of Hulme with the defendant; (setting forth the same as it was stated in the bill of complaint.) That such indenture, was duly acknowledged and recorded as is set forth in the bill. And the defendant averred that the sum of five thousand nine hundred dollars, the consideration money so agreeed to be paid by the defendant and in the indenture mentioned, was actually paid by the defendant, and that the same was paid with interest as follows: on or about the twenty-first day of November, 1825, five hundred and ninety dollars ; on or about the twenty-eighth day of December, 1825, fourteen hundred and ten dollars; on or about the twenty-first day of March, 1826, five hundred and fifty dollars; on or about the

p. 596

third day of October 1826, three thousand three hundred and fifty dollars 3 which last mentioned sum was the whole of the .consideration money, with whatever interest was due thereon, .and was received and accepted as such, and the defendant thereof forever acquitted and discharged. And the defendant did also aver, that at or before the respective times of the execution of such indenture by Thomas Hulme and his wife, and of the payment of such purchase money, and the delivery of the same .deed, he the defendant had no notice whatever of any trust or incumbrance that in any wise affected the lands and premises in the hands of, or as against Thomas Hulme, or that as against-Thomas Hulme, the complainant, as one of the heirs at law of Daniel D. Tompkins in the bill mentioned, either separately or jn conjunction with the other heirs at Jaw of Daniel D. Tompkins, or in conjunction with any one or more of such heirs, had any such right, title, interest, claim, or demand, in or to the lands and premises, or any part of them, as is for that purpose by him the complainant set up and alleged in his bill of complaint, or that the lands and premises, or any of them, or any part thereof, had been acquired by Thomas Hulme, or were held or sold by Hulme, in violation of any trust, or by means of, or with pny fraudulent practice, or intent. And the defendant averred, that he did not, either in making the purchase of the lands and premises, or in receiving the deed of conveyance thereof, com, mit, or practice any such fraud or covin, as is for that purpose by the complainant in his bill alleged, nor any fraud or covin whatsoever. And the defendant insisted that he was a bona fide purchaser of the lands and premises in question, for a good ¡and valuable consideration, without any notice of the equities, interest, or rights claimed by the complainant, and without any fraudulent practice, collusion, combination, or intent whatsoever, of him the defendant.

The defendant, not waiving his plea, but relying thereon, and for better supporting the same, and for answer to the residue of the bill, said; that the defendant had no notice at or before the time of purchasing the premises, or the payment of the purchase mPP.ey therefor by him, or the delivery pf the deed to him above

p. 597

mentioned, that Thomas Hulme stated, or that at the time Hulme obtained, or is alleged to have obtained, the decree of sale mentioned in the bill, or at any time thereafter until or at the time of the conveyance of the lands and premises at Castleton, by Hulme to the defendant, he, Hulme, actually and truly intended to take and hold any right, title, or interest which he might acquire, or had acquired, in those lands and premises at Castleton, by or under the decree, sale and master’s deed mentioned in the bill, or any of them, or under any decree, sale or master’s deed whatsoever, merely as a security for the payment unto himself, of such balance as might be due unto him from Daniel D. Tompkins or his estate, upon the account mentioned in the bill, or any other account, and to allow such right, title or interest to be redeemed against and extinguished by Daniel D. Tompkins his heirs or his assignees, or alleged assignees, on payment of such balance, in like manner as the same lands and premises, might have been redeemed from the lien and operation of the mortgage alleged in the bill, before the decree of sale stated in the bill, upon the payment of the moneys due upon the alleged mortgage, and costs, or otherwise ; and the defendant had no knowledge or information of such alleged intention or statement of intention, except from the allegations of the bill of complaint, which allegation however the defendant believed to be untrue.

That on the contrary thereof, Hulme claimed to hold the lands and premises purchased by the defendant, not as a security, but as his own individual property, in full and absolute title, and a right to use, occupy, enjoy, and dispose of the same, according to his own will and pleasure, without any liability to account to any person whatsoever; and that Hulme, as having such full and absolute title, exercised over those lands and premises and other lands acquired by him under the same title, all ordinary acts of ownership and disposition, as such absolute owner, and without objection or complaint, so far as was known to the defendant, of any person whatsoever.

That at, or before the purchasing of the premises, or the payment'of the purchase money therefor by the defendant, or the delivery of the deed to him above mentioned, he had no notice,

p. 598

that Hulme, before his bid mentioned in the bill, or at the time thereof, or afterwards, expressly and solemnly or otherwise declared to Tompkins, or to others, that his intention was as before expressed, or that he assured Tompkins, that the whole benefit and advantage of the bid and purchase mentioned in the bill, should enure to the use of the trust estate, alleged to have been created by the indenture or deed of assignment mentioned in bill, and to the consequent benefit of Tompkins, his heirs and assigns, after the payment of the debts intended to be provided for by such indenture or deed of assignment, or to the use of any trust estate created by any indenture or deed of assignment whatsoever, and to the consequent benefit of the said Daniel D. Tompkins, his heirs and assigns, after the payment of the debts intended to be provided for by any such assignment; and the defendant had no knowledge or information of such alleged declarations, or assurances, except from the bill, but he believed the statements of the bill in that behalf to be untrue.

That at or before the time of the purchasing of the premises, or the payment of the purchase money therefor by the defendant, or of the delivery of the deed to him above mentioned, he had no notice of the execution of any instrument in writing by Thomas Hulme, being a declaration of trust, or of the delivery thereof to Daniel D. Tompkins, whereby Hulme acknowledged, testified, or declared, that by virtue of a certain trust and confidence between him and Tompkins, he, Hulme, held, and would hold, all such right, title, and interest as he had acquired, or might acquire by such decree, bid, and master’s deed, as are alleged in the bill, to the use and intent in that behalf specified ; that the defendant had no notice of the existence of any declaration of trust, subscribed or executed by Hulme, in relation to such right, title and interest, or to any right, title or interest of Hulme, in the lands and premises at Castleton. That the defendant never knew, or heard of any such declaration of trust until the filing of the bill of complaint; that he never had such declaration, or a copy thereof in his possession, nor ever saw them, or either of them, to his knowledge or recollection, in the possession of any other person, nor does he know, nor has he been informed, except by the bill, nor does he believe that such declaration of trust exists, or ever did exist.

p. 599

The answer then traverses in like manner, notice of Hulme’s ever representing or stating his design in bidding, as charged in the bill; and notice of the alleged accounting between Hulme and Tompkins, and the balance found, and the manner in which the account was made up, and items thereof; also notice that Hulme received and was paid the whole balance so found due to him, and alleged that the defendant did not believe that any such payment was ever made.

The answer further traversed, that before the time of the death of Tompkins, a sufficient sum or amount had been realised and received by Hulme and his co-assignees, or some one or more of them, from other the estate alleged to have been assigned, to pay and satisfy the entire indebtedness of Daniel D. Tompkins to Thomas Hulme, and which was properly applicable to the purpose ; and it denied that the defendant had any knowledge or notice thereof.

The answer explicitly denied that the lands and premises at Castleton, so purchased by the defendant, or any of them, or any part thereof, were occupied, used, or enjoyed by Daniel D. Tompkins up to the time of his death, as is stated in the bill, or that Tompkins continued to use, occupy, and enjoy the premises after the same were bid in, or are alleged in the bill to have been bid in, or Hulme acquired or claimed to have acquired title to the premises, in the same manner as before; but on the contrary thereof, that during the lifetime of Tompkins, and at and long before the time of the purchase of the premises by the defendant, Hulme was in the possession, occupancy, and enjoyment of the premises as the owner, and claiming to have the absolute title thereof, and that on the purchase of the premises by the defendant, he entered into the full possession, occupancy, and enjoyment of the same, and that he and those claiming under hits, hold, and have ever since continued to hold the same.

The defendant also expressly denied, upon personal knowledge as regarded himself, and upon information and belief as regarded Hulme and others, that a few months after the death of Tompkins, and in or about the month of November, 1825, or at any other time, the lands and premises at Castleton, or any part thereof, were exposed for sale at the Tontine Coffee House

p. 600

in the city of New York, by or under the direction of Hulme, Pierson, Tooker, Smith, Prall, and the defendant, or by or under the direction of some, or one of them, as assignees, under the indenture or deed of assignment mentioned in the bill, or as assignees under any indenture or deed of assignment whatsoever; but the defendant stated the fact to be, that on or about the twenty first day of November, 1825, at the Tontine Coffee House in the city of New York, the usual place at that time for public sales in that city, as the Merchants Exchange is at present, the lands and premises so conveyed by deed to the defendant, were exposed by Thomas Hulme to fair and open public sale, as his own private property, and as such private property were fairly and publicly sold to the highest bidder.

That after the lapse of more than twenty years, with nothing to impress circumstances of that nature upon his memory, the defendant cannot undertake to name, and was unable to name, the persons who were present at such public sale, by Hulme, except that the defendant was present at the sale, which was after the usual public notice continued for three or four weeks, and a large company, the defendant should think two hundred persons were present, and there was considerable competition at the sale. That he remembers Ichabod Prall, and he thinks, Benjamin Wood, and Thomas Hulme, as well as the defendant, were present at the sale.

That at such public sale by Hulme, the lands and premises so exposed by him for sale, were bid off by Ichabod Prall for the benefit of the defendant, at the sum of five thousand nine hundred dollars, but the defendant denies that such lands and premises were bid in by him, or by Prall for his benefit, or under any secret agreement with him, that he should have the benefit of the bid so made, or to be made.

That he admits that the lands and premises, containing about two hundred and fifty acres, exposed for sale by Hulme as aforesaid, were offered at such sale in one parcel; but he denies that they were offered for sale in one parcel, when they were properly and conveniently saleable, or any more properly and conveniently saleable in separate parcels; or that the same were either

p. 601

bid in, or bid off by, or for the defendant, at the sum of $5900, when in truth and in fact they were worth a much larger sum. of money. On the contrary, he affirmed that upon such purchase of Hulme by the defendant, he agreed to pay and in truth and in fact paid a full and valuable consideration therefor, that he paid the same at the times and in the amounts stated in the foregoing plea, and that the sum of five thousand nine hundred dollars bid for the land and premises, was all that the same were worth, or would bring in the market. That they composed a mountainous tract of almost entirely uncultivated land, producing little rent or income of any sort, and having very few improvements thereon, and those of inconsiderable value. And that the year 1825, in which the same were sold, was a year of great commercial disaster,* and financial revulsion, by means whereof the value of real estate in the market, and especially of real estate of the description of those lands and premises, was much depressed.

The answer then denied, that the defendant, or any of the persons described in the bill, stated, or gave out at or before the time of last mentioned sale, that such lands and premises were to be bid in at such sale for the benefit of Mrs. Tompkins, the mother of the complainant and widow of Daniel D. Tompkins, and her family, or either of them, or that a report to that effect, was circulated by the defendant, or by any of the co-assignees, or otherwise circulated among those who were present at such sale. And if any such statements were made or any such report circulated, it was without the defendant’s knowledge, approbation, or consent. And he had no notice thereof at the time of his purchase, or at the time of the payment of the purchase money therefor, or at the time of the delivery of the deed to him. And he denied, that in consequence of such alleged statements or report, many or any of those present were prevented from bidding at the sale.

That ten per cent of the purchase money, at the time of the last mentioned sale, was paid by the defendant, and that all subsequent payments were made by him, and the receipts, copies whereof were annexed to the answer, and the receipt in the con

p. 602

sideration clause of the deed were taken therefor; that the ten per cent was paid by Prall to Hulme, and by the defendant on the same day to Prall; and he denied, that before the sale took place, he entered into or made an arrangement to borrow money for the purpose of paying the ten per cent.

That the defendant was and is wholly ignorant, and therefore denied that the lands purchased by him, had been, prior to the sale, redeemed from the lien of the indenture of mortgage alleged in the bill; and from the sale of the premises, and from the operation and effect of the decree alleged in the bill, in the manner stated in the bill, or otherwise.

That the deed from Hulme and his wife, to the defendant, was executed, as is set forth in the bill, and was for the actual consideration of five thousand nine hundred dollars, and was neither a pretended deed, nor for a pretended consideration, but was on a fair purchase, and on a fair and valuable consideration. That the deed must have been delivered to him after the acknowledgment thereof on the seventh day of March, 1826, and before the recording thereof on the eighth day of October following, but he is unable to fix the precise date of such delivery, but believes it was at the time of the last payment, that is to say, on the third day of October, 1826.

The defendant denied, that at the time of the delivery of the deed, he knew, or had any notice, that the indebtedness of Daniel D. Tompkins, and of his estate to Hulme, had been paid in full, or that the lands and premises granted, and conveyed in the deed, had been redeemed, from the lien and incumbrance of the mortgage alleged in the bill, and from the sale stated to have been made under the decree therein alleged, and from the operation thereof, if any it had ; and also denied that he knew, or had any notice of any declaration of trust, subscribed by Hulme or of the representations of Hulme, stated in the bill to have been made to Tompkins, touching the alleged sale in May, 1822, and the alleged master’s deed.

The answer admitted that some time in the year 1826, but how soon after the delivery or recording of the deed to the defendant he is unable to state, a suit was commenced in the court of chancery of this state, in the names of Thomas Hulme, Isaac

p. 603

Pierson, Edmund Smith, Ichabod Prall, ■ and the defendant, (Samuel Tooker, then being dead,) in the alleged capacity mentioned in the present bill of complaint, and in the names of Joseph G. Swift, Thomas Hyatt, and Edmund Smith, as trustees under a certain other alleged trust in favor of Daniel D. Tompkins, and that a bill was filed in that suit against George W. Tompkins, the brother, and Hannah Tompkins, widow of Daniel D. Tompkins, administrator and administratrix of his goods, chattels, and credits, for the alleged purpose of closing their several and respective trusts, and for other purposes; but the defendant says that the bill, in the names of Thomas Hulme and others, was not signed by him, nor sworn to by him, nor was it seen by him, nor submitted to him at the time, or before the same was filed, nor was he consulted in relation to the contents thereof, nor was such suit commenced at his instance, nor by his direction.

That he is now informed and believes, that in the last mentioned bill it was, among other things alleged, that as Thomas Hulme, in making the purchase, mentioned in that bill, of the lands and premises at Castleton, had no other design than that of securing as much as possible of the debt then due to him of Daniel D. Tompkins, and as the price at which the premises were purchased by Hulme, as stated in that bill, was considered to be less than the real value thereof, Hulme, at the time and place in the last mentioned bill stated, voluntarily exposed the premises to a further public sale, with intent, and for the express purpose of appropriating to the use of the trust estate, alleged in that bill to be in the hands of Hulme, Pierson, Smith, Prall, and the present defendant, by way of gift or donation, any excess or surplus by which the price to be obtained for the premises upon such further sale, might exceed the previous purchase thereof by Hulme ; and in case the further sale should produce no such excess or surplus, or should produce less than the principal and interest of the previous sale, the alleged trust estate was in no event to sustain any loss on that account. That Hulme, however, expected and offered the premises to further sale, upon the distinct consideration that all necessary and proper charges and expenses to which he had

p. 604

been, or might be put in attending upon, or managing the various concerns and interests of the trust estate alleged in that bill to be in the hands of the plaintiffs therein, would be freely allowed and paid to him in the adjustment of his accounts with the estate.

That the defendant is informed and believes, and therefore admits, that, in conformity with these allegations of that bill, and for the purpose of carrying out the alleged intent of Hulme, to appropriate the excess and surplus of the proceeds of the premises, to the uses of the alleged trust "estate, by way of gift and donation, and for no other, or different purpose, and with no other, or different effect, an account rendered was filed in that cause, with Thomas Bolton, then one' of the masters in the court of chancery, in April 1838, or about that time, wherein the trust estate, alleged in that bill to be in the hands of Hulme, Pierson, Prall, Smith, and this defendant, as such assignees or such surviving assignees, was credited with the purchase money of the lands and premises at Castleton, paid by this defendant, the same being however expressly stated in such account to be, “T. Hulme’s estate on Staten Island,” and was also credited with all the receipts by Hulme from the lands and premises subsequent to his purchase thereof, and charged with all expenses incurred by him, in relation to such lands and premises, and of course credited with the rents received, and charged with the taxes paid, as charged in the present bill of complaint; but the defendant had no personal connection with the preparation and rendering of that account, and according to his best recollection and belief, was not aware of the existence of such an account, until the filing of the present bill of complaint.

That after the last mentioned hill was filed, and while the suit thereby commenced, remained undetermined, and sometime in the year 1827, Thomas Hulme executed and delivered to this defendant, a paper, or instrument in writing, a copy whereof is set forth in the bill, bearing date, the second day of February, 1827.

The defendant denied that at the time Hulme executed that paper, or at the time this defendant received the same, or at the time he caused the same to be filed in the office of the clerk of

p. 605

the county of Richmond, he knew, or had notice that the mortgage, therein alleged to have been made, and executed, and registered, had not been redeemed, paid off, satisfied or discharged in the manner therein stated; but that on the contrary the lands and premises in the mortgage described, had been redeemed from the operation and lien thereof, and of the decree founded thereon, and from the sale made under such decree, by the actual payment and satisfaction of the original mortgage debt, and not otherwise.

The defendant further expressly denied that the deed by Hulme and wife to him, and the paper or satisfaction piece, or either of them, were signed, executed, or delivered, for the purpose of covering or concealing the real, and true estate, condition, title, or ownership of the lands and premises at Castleton, or thereby to prevent or defeat any investigation of the heirs at law of Daniel D Tompkins, concerning the same, or that they, or either of them were signed, executed, or delivered, for any fraudulent purpose, ór purpose of concealment whatsoever, or for any other uses and purposes, than those apparent upon the face of the instruments. The answer admitted defendant’s claim of title to the lands and premises at Castleton, and denied that the complainant, or any of the heirs or creditors of Daniel D. Tompkins, or any trust created by any indenture or deed of assignment, is in any wise interested, or entitled unto such lands and premises, or any part thereof, at law, or in equity.

The answer then denied several specific charges of fraudulent intent and breach of trust contained in the bill.

The answer admitted that at the time, and for a long time previous to the execution of the assignment, alleged in the bill, and until the death of Daniel D. Tompkins, the defendant, was a friend of his, but it denied that he was the confidential agent of Tompkins during that period ; that for a considerable period prior to the time of the alleged execution of the assignment, the defendant, had charge of various matters of business in which Daniel D. Tompkins was interested, confided to him by Tompkins, and in regard to which, relations of friendship and confidence subsisted between them, but that at or about the time of the alleged execution, such agency of the defendant

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terminated. And he denied, that subsequently he was the confidential agent, or the agent of Daniel D. Tompkins, or that he ever was the confidential agent of Daniel D. Tompkins in matters of real estate. That prior to the time, or about the time of the alleged execution of the assignment, the defendant was well acquainted in general, but not intimately acquainted with the business, property, and affairs of Daniel D. Tompkins; but that after that time the active management of such business, property, and affairs fell into new hands, and the defendant had very little knowledge or information in regard to them.

The answer admitted that at, or before the time of the delivery to the defendant of the deed of the lands and premises, purchased by him at Castleton, being on or about the third day of October, 1826, the defendant, entered into the possession and enjoyment of them, claiming to be the absolute owner thereof; but according to his recollection and belief, he entered into such possession and enjoyment under his agreement to purchase, immediately, or soon after the lands and premises were bid off for him as already stated, viz. immediately or soon after the twenty-first day of November, 1825.

Annexed to the answer were copies of four receipts, three purporting to be signed by Thomas Hulme, in one of which he receipted the ten per cent, as being paid by Trail; and in another he receipted $1410, as paid to him by the defendant on account of an estate sold to Trail; and in the third he receipted $550, as paid by the defendant on account.

The receipt of Trail, was to Ward, for the ten per cent, paid on the sale, and was dated on the day of the sale.

W. Bliss and B. F. Butler, for the defendant, in support of the plea, argued the following points.

I. The defence in this case is a proper subject for a plea.

1. It reduces the case to a single point, viz : The character and effect of the defendant’s purchase of the lands in question.

2. The plea tenders a material issue, viz: That the defendant purchased the premises in question for a valuable consideration, and without notice of any trust or incumbrance affecting them or of any of the facts or circumstances alleged in the bill for the

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purpose of showing title, and without any fraud on the part of the defendant.

II. The plea is good in form and substance.

1. It avers that Thomas Hulme, of whom defendant purchased, was or pretended to be seised in fee of the premises in question, and that he was in the actual possession thereof at the date of the agreement and until the delivery of possession thereunder to the defendant. That defendant purchased for a valuable consideration, which was fully paid by him ; that he had no notice at the time of the agreement, or of the deed, or of the payment of the purchase money, of the title set up by complainant in his bill, and that he did not in making such purchase or receiving such deed, commit or practice any of the fraudulent acts alleged in the bill, or any fraud whatever.

2. All the facts and circumstances alleged in the bill for the purpose of charging defendant with notice or fraud, and depriving him of the character and immunities of a purchaser for a valuable consideration without notice, are met by general denials in the plea, and as to all such matters the answer makes discovery as required by the bill, and explicitly denies all actual notice or fraud, and every fact or circumstance from which notice or fraud could be inferred.

III. There is nothing in the matters contained in the bill, and not denied in the plea, to counterprove the plea.

1. The assignment of the 15th January, 1822, having expressly reserved to each of the trustees, all his rights and remedies under prior liens, the sale under the decree of foreclosure and the master’s deed thereupon, vested in T. Hulme individually, an absolute title to the premises described therein for his sole and exclusive use.

2. The complainant, as a privy, claiming under a party to the suit of foreclosure, whether by descent or through the assignees of such party, is bound by the decree, which of itself extinguished the equity of redemption. Hulme as mortgagor had a right to purchase, and his purchase is not impeached. The law therefore took the lands out of the original trust, and vested them in him to his sole use.

3. The trust created by the assignment, having entirely ceased

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after the execution of the master’s deed to Hulme, to apply to the real estate described therein, it was competent for him to sell, and for the defendant to buy, such real estate, for their own individual and exclusive benefit.

4. The other matters alleged in the bill and not denied, are perfectly consistent with the case made by the plea.

Mr. Bliss

cited Calvert on Parties, 102 ; Jackson v. Hoffman, 9 Cow. 271 ; Brown v. Frost, 10 Paige, 243 ; 1 Rev. Laws, 78, 79, §§ 10, 12 to 14; Brewster v. Power, 10 Paige, 562; 1 Daniell’s Ch. Pr. 36, 37 ; Walter v. Glanville, 3 Bro. P. C. 366 ; Wormley v. Wormley, 8 Wheat. 421 .

Mr. Butler,

in reply, referred also to Bank of Utica v. Messereau, 7 Paige, 517 ; Bogardus v. Trinity Church, 4 ibid. 194; Willis’s Eq. Pl. 568; Wigram’s Points on Discovery, 162 to 181; Mitford’s Pl. by Edwards, 239, 240 note, 261 note s., 276, 277, 299 ; Bolton v. Gardner, 3 Paige, 273.

G. N. Titus and C. O'Conor, fo r the complainant.

I. The plea of the defendant Ward, is bad for duplicity and multifariousness, because,

1. It sets up a bona fide purchase from Hulme, without notice of the trust under which he held, or the redemption which had taken place; and,

2. It denies and puts in issue the personal fraud and breach of trust, imputed to Ward himself, in bringing about the sale of November, 1825, and causing it to be conducted in a manner detrimental to the estate or family of D. D. Tompkins, for his (Ward’s) own benefit.

This plea is in bar to the whole bill, and an answer to the whole discovery. It loses sight of the great object of a plea, to reduce the case to a single point. (Mitford’s PL by Edwards, 340, note 1.)

II. The plea is also bad, inasmuch as the payment of the purchase money is not alleged to have been made to Hulme. This is not an inadvertent slip in pleading ; for it is presumable from the case stated in the bill, and the admissions in the

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answer, that no such payment ever was made to Hulme ; although it is probable that such a payment was made into the trust fund of the Tompkins estate. (Willis’s PI. 568, and notes.)

III. The plea is overruled by the answer, because,

1. The answer denies the facts alleged in the bill, in respect

to the trust in, and redemption from, Hulme; and does not confine itself to denying the notice of such facts, or to denying circumstances brought forward in the bill as evidence of such notice. The bill alleges no fact or circumstance as evidence that Ward had notice. It merely alleges the naked fact, that he had notice. (Saunders v. King, 6 Madd. 61 ; Evans v. Harris, 2 Ves. & B. 363; Thring v. Edgar, 2 Sim. & St. 274.)

2. The whole matter of the bona fide purchase, without notice, and full payment of the consideration money, as alleged in the plea, is repeated in the answer.

3. The fraudulent breach of trust on the part of Ward himself, which is denied in the plea, is in like manner again denied in the answer. (Milligan v. Milligan, 3 Cranch, 220 ; 3 J. C. R. 388 ; 3 Paige, 276.)

IV. The bill in this case, is founded on a complicated fraud, consisting of many circumstances; and is not capable of being reduced to a single point, and put in issue by a plea. The sufficiency of the bill itself, does not come in question. (Dows v. McMichael, 6 Paige, 139 ; Bogardus v. Trinity Church. 4 ibid. 195 ; Mitf. Pl. 312, 379, 380, notes.)

bill, admitting that T. Hulme acquired a valid title to the lands in question by his purchase at the master’s sale, asserts that he became a trustee of the title for the benefit of Gov. Tompkins, with a view to the redemption of the lands. And that such redemption was fully made, before the sale to the defendant.

Whether the agreement for redemption, or the written declaration of trust stated in the bill, were cotemporary with the master’s sale, thus in effect leaving the assignees of Gov. Tomp

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kins, after the sale, the owners of the right to redeem, as they were before the sale took place; or whether the assignees, by their dealings with the property after Hulme received his deed, became clothed with the interest remaining in Gov. T.; the result is the same, that at the time of the sale at auction by Hulme, both Hulme and the defendant were in a fiduciary relation to the property, and the defendant could not purchase it for his private emolument.

The bill makes one or both of these cases against the defendant ; and it charges upon him knowledge of the trusts and intention with which Hulme received the title, and of the actual redemption, by the payment of the sum for which he held it as security.

The defence, is a bona fide purchase from Hulme, without notice of any of the trusts or fraudulent circumstances charged in the bill.

There is an important defect in the plea, in omitting to state to whom the consideration on the defendant’s purchase was paid. The actual payment of the consideration before receiving notice of the equities of the complainant, is conceded to be a vital element in this plea. Now in this case, if the payment were actually made to the assignees of Gov. T., it would sustain the charge in the bill that they were the equitable owners of the property, and thus overthrow the plea on the point of notice. Hence the importance of requiring a full and clear allegation of the payment of the purchase money, to the vendor under whom the defendant derives his title.

It was said, that this was an inadvertent slip in framing the plea, which the court should allow the defendant to remedy by an amendment.

The omission, it is to be observed, is not a formal or technical defect, which at first blush, would appear to be an oversight. In connection with the circumstances averred in the bill, it is a substantial point of the defence, and whatever the court might be induced to do, on a motion, founded upon proof of its being an inadvertent omission, it cannot be so treated on this occasion. (See 2 Dan. Ch. Pr. 231, Eng. ed.) Another grave consideration proper for the disposal of an application to amend, and which

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was not fully argued at the hearing, arises upon the form of the plea and answer; which the complainant alleges, contain all the matter necessary for an answer to the bill and something more, and that the contest between the parties, instead of being narrowed by the plea to a single point, is amplified far beyond the functions of a plea, without attaining even the ordinary simplicity of an answer.

These views have induced me to refrain from giving the direction on this point which I was at first inclined to make; which was to permit the defendant to amend, unless the complainant would stipulate, that the plea and answer might stand for an answer with liberty to except, restricted so far that the defendant should not by his answer be required to set forth any account of his receipts or charges in respect of the property in question since its conveyance to him, nor any account of his sales, beyond stating to whom he has made sales, when he contracted, and when he conveyed. It occurred to me, that this course would relieve the case from the difficulties of the plea, without bringing into the litigation a mass of accounts more appropriate to the master’s office, and which would be utterly useless if the complainant should fail in sustaining his claim for an account.

To return to the plea; there is another objection to its validity which I have been unable to overcome. In reposing the defence upon the proposition that the defendant is a bona fide purchaser for a valuable consideration without notice, he necessarily admits the charges in the bill which go to make out the complainant’s title, so far as it is independent of his own. Thus, it would be wholly incompatible in the answer supporting such a plea, to deny that the complainant' was one of the heirs of Gov. Tompkins, or that Gov. T. assigned this property in trust, or that it was vested in Hulme by the foreclosure and sale of his mortgage. And it is equally incompatible to put in issue.by the answer in support of the plea, any fact stated in the bill, which does not go to countervail or disprove the defendant’s purchase .in good faith, the valuable consideration paid, or the want of notice of the complainant’s equities, (See Hare on Discov. 34.) The defendant is not only at liberty, but he is bound to deny in

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such an answer, every allegation in the bill which, if admitted to be true, would fix him with notice, actual or constructive ; but when such allegation is not within his personal knowledge, he is merely to deny notice of it, he is not to deny its existence besides. Each denial of the existence of such allegations, creates a new issue, collateral to the point presented by the plea, and wholly unnecessary for its support.

A striking instance of this in the answer before me, is to be found in the traverse of the written declaration of trust, charged in the bill to have been executed by Hulme to Gov. Tompkins ; and there are two or three other instances of a qualified traverse of similar facts, by means of the defendant’s statement, that he believes them to be untrue.

Another defect in the answer, is the repetition of the averments in the plea of the payment of the consideration of the defendant’s purchase; there being no allegation in the bill to which these averments are responsive. (See Thring v. Edgar, 2 S. & S. 274 ; 2 Daniell’s, 119 to 128.)

The plea must be directed to stand as an answer on payment of costs by the defendant, with liberty to the complainant to except within thirty days; but this liberty is to be qualified so as to protect the defendant from the discovery as to his sales and accounts, in the manner which I have already pointed out when speaking of leave to amend.

Order accordingly.

Cases cited

Wormley v. Wormley 8 Wheat. 421 SCOTUS 1823-03-12 p. 608