Dodd v. Flavell et al.

meaning of the words in the power of sale, is not the meaning of the testator.

I am of opinion, therefore, that the deed from the executors to Bacot, conveyed to, and vested in the grantee, a valid estate in fee in the mansion-house and premises, subject only to the life estate of the widow.

But it is charged in the bill, and not denied by the answer, that the widow of the testator had, prior to the date of the contract for sale by the complainant to the defendant, conveyed all her estate in the mansion-house and premises to the complainant. This vested in him a valid title to the entire estate.

The objection made by the defendant to the completion of the purchase, on the ground of defect of title, is not well. founded, and the complainant is entitled to a decree for specific performance.

The proper parties are before the court. There is no necessity or propriety in making the devisees of John Tonnele, parties to this suit. To a common bill for the specific performance of a contract of sale, the parties to the contract are the only proper parties. Robertson v. The Great Western R. Co., 10 Simons 314; Wood v. White, 4 Mylne & Craig 460; Fry on Spec. Perf., § 79. Decree accordingly.

JOHN M. DODD vs. ABRAHAM FLAVELL and others.

1. Where the complainant's right is clear, and the infraction of that right established, he will not be required to give security for such damages as the defendant may sustain by reason of the injunction.

2. Where the injunction deprives the defendant of the enjoyment of the property in dispute, and must prove greatly prejudicial to his interests, if his claim should be established, the complainant must prosecute the case with diligence. If laches or want of diligence on his part be shown, the injunction will be dissolved, or security required.

Dodd v. Flavell et al.

The complainant filed his bill in this cause, for an injunction to restrain the defendant from unlawfully flooding his land. The injunction issued pursuant to the prayer thereof. The defendant now asks that the complainant may be required to give security for such damages as he may sustain by reason of the injunction.

Mr. J. W. Taylor, for defendant, A. Flavell, in support of the motion.

Mr. A. S. Hubbell, for complainant, opposed the application on the following grounds:

1. It does not appear by the papers in this cause, nor by the affidavit to be used on this motion, that the complainant has, in any particular, infringed upon the rights of the defendants.

2. The bill of complaint alleges injury by the defendant, by unlawfully flowing complainant's land. The flowing is not denied. The right to flow is not established by defendant. The assertion of a right, if made at all by defendant's answer, is vague and indefinite. The injunction only prohibits the injury to complainant, and, therefore, he is not responsible to the defendant for the consequences affecting his (defendant's) property, by his being restrained from committing an injury to the property of complainant.

3. The defendant is restrained from violating his covenant with complainant, by which he agreed and covenanted not to flow the land of complainant. With what propriety can the defendant ask the complainant to give him security for damages which he may suffer by his performing his own covenant?

4. The affidavit is indefinite and vague; it does not allege that defendant's mill is unprofitable, because he was restrained from flowing complainant's land, and from doing what he had, or claimed to have, a lawful right to do.

THE CHANCELLOR. The propriety of requiring security from the complainant for such damages as the defendant

Chavez v. Administrator of Peiffer.

might sustain by reason of the injunction in this cause, was considered at the time of allowing the injunction. It did not appear to me then, to be a case in which security should be required.

Upon the case made by the bill, the right of the complainant is clear, and the infraction of that right established. Under such circumstances, the fact that the injunction occasions a serious loss to the defendant, affords no just ground. of complaint. He is deprived of the enjoyment of that which rightfully belongs to another.

The case, as made by the bill, is not essentially altered by the answer or proof of the defendant. Inasmuch, however, as the injunction deprives the defendant of the enjoyment of the property, and must necessarily prove greatly prejudicial to his interests if his claim should be established, it is incumbent upon the plaintiff to prosecute the case with diligence.

If he fail to do so, and to bring the cause to hearing at the earliest opportunity, I will entertain a motion to dissolve the injunction. If any laches or want of diligence on the part of the complainant be shown, the injunction will be dissolved, or the complainant required to give the security demanded.

The motion must be denied without costs.

PETER CHAVEZ vs. JACOB SCHMIDT, administrator of Peter Peiffer, deceased.

An assignment by an executor, of his individual interest in a mortgage and decree belonging to the estate of his testator, such interest being only that of a general creditor of the estate, passes to the assignee no title to the mortgage, nor to the proceeds thereof.

The bill charges that Nicholas Peiffer, the executor of Peter Peiffer, deceased, holding and owning, as such executor, a

Y*

Chavez v. Administrator of Peiffer.

bond and mortgage for $5000, and being a creditor of the estate of his testator, on the 4th of January, 1862, assigned all his individual share, right, title, and interest, in the said bond and mortgage, and in the decree theretofore made for the foreclosure thereof, to the complainant, as collateral security for a debt of $3000, due from Nicholas Peiffer, in his individual capacity, to the complainant. That on the sale of the mortgaged premises under the decree of foreclosure, there remained in the sheriff's hands, after satisfying a prior encumbrance, a balance of $2627.29, to be applied toward the satisfaction of the mortgage. This balance was paid by the sheriff to Jacob Schmidt, who had been appointed administrator, with the will annexed, of Peter Peiffer, deceased.

The prayer of the bill is that Schmidt, the administrator, may pay over the money thus received from the sheriff, to the complainant, who claims title thereto by virtue of the assignment of the mortgage and decree. To this bill there. is a general demurrer.

Mr. Keasbey, for defendant, in support of the demurrer.

Mr. T. Runyon, for complainant, contra.

THE CHANCELLOR. There is no equity in the bill. The assignment by the executor, of his individual interest in a mortgage and decree belonging to the estate of his testator, passed to the assignee no title to the mortgage, nor to the proceeds thereof. The executor had no individual interest in the trust fund in his hands belonging to the estate of his testator. He could not assign the trust funds to pay his individual indebtedness. All the individual interest which the executor, as a creditor of the estate of his testator, could have in the funds of the estate, would be a right to the payment of his debt, or a ratable proportion thereof, out of the assets, upon a settlement of the estate. For all that appears by the bill, the estate is insolvent. Admitting that the

Mittnight v. Smith et al.

estate is solvent, and that a debt was due from the estate to the executor, nothing passed by the assignment but an equitable interest, which the assignee might enforce against the assets in the hands of the administrator, upon the settlement of the estate.

LAWRENCE MITTNIGHT vs. GEORGE N. SMITH and others.

1. A creditor at large, or before judgment, is not entitled to the interference of this court, by injunction, to prevent his debtor from disposing of his property in fraud of the creditor. A bill filed by a creditor of a firm, to restrain an execution creditor of an individual partner from enforcing his lien upon the partnership property, forms no exception to the general rule.

2. The doctrine, that a separate debt of one partner shall not be paid out of the partnership property till all the partnership debts are paid, is applicable only where the principles of equity are brought to interfere in the distribution of the partnership property among the creditors.

The bill charges that the defendants, George N. Smith and Joseph R. Reutzel, were partners in business under the name of Smith & Reutzel, and were possessed of a large amount of personal property, encumbered by a chattel mortgage. That the complainant is a creditor of the firm, and that an action at law has been commenced, and is now pending for the recovery of the debt. That the chattel mortgage upon the property of the firm has been foreclosed, the property sold, the mortgage satisfied, and a balance of the proceeds of sale, amounting to $670.98, remains in the hands of the sheriff.

After the suit at law was commenced by the complainant against Smith & Reutzel, and before the sheriff's sale under the foreclosure of the chattel mortgage, George N. Smith confessed a judgment against himself, in favor of Simon and Samuel Walters, for $1500. An execution was issued upon this judgment, and a levy made upon the per