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Ballou o. Cunningham.

realized, unless he has violated the letter or spirit of the agreement. Under the ruling at the circuit, the jury allowed the defendant, for his cow, $36 more than the plaintiff had realized. This is certainly a novel contrivance for the payment of debts. The parties have agreed what shall be applied, in case the plaintiff is driven to a sale of the property to get back his money loaned; but the court and jury undertake to make payment and satisfaction upon a basis altogether different from the agreement; to make, in fact, a new agreement. The ruling must have proceeded upon the ground that the plaintiff had no right to sell except at public sale, and having sold at private sale, contrary to the agreement, he was to be charged, and the defendant credited, upon the same principle that would have been applied had the plaintiff kept the cow himself, instead of selling her and converting her into money. This was clearly errroneous. There is, indeed, no ground upon which this ruling can be sustained, without proof that the plaintiff, in making the private sale, acted in bad faith, and might, had he acted fairly and honestly, or with proper care and diligence, have obtained a better price.

The judgment should therefore be reversed, and a new trial ordered, with costs to abide the event.

Talcott, J., concurred.

MULLIN, P. J., dissented, on the ground that when a mortgagee sells at private sale, without notice, he must allow to the mortgagor what the property thus sold is reasonably worth.

New trial granted.

[Fourth DEPARTMENT, GENERAL TERM, at Buffalo, February 6, 1871. Mullin, P.J., and Johnson and Talcott, Justices.]

GEORGE MARTIN and CLARISSA MARTIN V8. REBECCA R.

WAGENER, impleaded &c.

435 50a

Whether, in the case of a voluntary partition, between tenants in common of

lands, which has been consummated by conveyances to each, of his share, in severalty, when no question is raised in regard to the fairness and equity of the partition, a court of equity has not power to compel a creditor having a lien on an undivided interest, by judgment or mortgage, before such partition, to resort to the share so partitioned to his creditor, for the satisfaction of his lien, and restrain him from enforcing such lien against the shares so

partitioned and conveyed to the other tenants ? Quære. Where several agreements and conveyances between the heirs of a person dying

seised of land, were not in the nature of a partition of the estate, and were not intended to be a partition, but were mere contracts of bargain and sale, and conveyances thereon, and the plaintiffs conveyed their interests in the common lands to R. M., and thus subjected them to the lien of a judgment existing against him, in exchange for a conveyance of an interest in other lands also incumbered by the same judgment; it was held that the plaintiffs having done so voluntarily, and without any mistake, or ignorance as to the facts, the court, upon a complaint alleging that R. M. had disposed of all the property he received in and by said exchange, which was amply sufficient to satisfy the judgment, and that he was insolvent and unable to restore the same, or procure restitution thereof, could not relieve them from the consequences of their own act, by decreeing the lands conveyed to them by R. M. to be free from the lien of such judgment, and restraining the sale

thereof upon execution issued on snch judgment. Held, also, that, other judgments against R. M. having been enforced, and his

title to the lands which were conveyed to him by the plaintiffs, and all the other lands held by him in severalty, having been alienated in executing the judgments, and the title vested in different purchasers, it became a mere question as to the order in which the lands subject to the lien of the original judgment should be sold, or made liable to contribution to such judgment; and that the order was regulated by statute. (2 R. S. 375, jý 70, 71.)

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NHIS was an appeal by the plaintiffs, from a judgment

entered on the decision and report of a referee, dismissing the plaintiffs' complaint. The action was to determine the equitable rights of the parties in certain lands, which were subject to the lien and operation of a judgment recovered against Russell Martin. The plaintiffs, by their complaint, demanded a decision declaring the judgment in question to be a lien on certain of such lands, and de

Martin •. Wagener.

claring that the other lands were free from the lien of the judgment. The plaintiffs also demanded a judgment awarding a perpetual injunction against selling the lands claimed by them to be exempt from the lien of the judgment. The judgment in question was recovered by Joseph W. Upham, on the 17th day of May, 1866, against Russell Martin and Alfred Tallent, which was so docketed as to become a lien on the premises in question, which are all situated in Cattaraugus county. The plaintiffs, in their complaint, claimed that the judgment was a lien on lots 4, 5, 6, 8 and 10, in section 7, township 1, and range 4, and lots 17, 19, 20, 21 and 22, in block 85, in the village of Olean. The residue of the lands described in the complaint, the plaintiffs claimed were not subject to the lien and operation of the judgment. The lots numbered 4, 5, 6, 8 and 10, contain 597 acres of land, and belonged to Frederick S. Martin, who died on the 28th day of June, 1865, intestate, leaving Russell Martin and six others his heirs at law. Russell Martin owned one equal undivided seventh of these lots when the judgment in question was recovered. The plaintiffs are two of the heirs of Frederick S. Martin. On the 31st day of August, 1866, Russell Martin entered into a written agreement, bearing date on that day, with the plaintiff, George Martin, by which he agreed to convey to the plaintiffs his interest in the real and personal property coming to him from his father, and in consideration thereof, George Martin was to procure a conveyance to Russell Martin and Stanley Martin, of 594 acres of land, lying south of the Allegany river, in the town of Olean, being the lots numbered 4, 5, 6, 8 and 10. The conveyances were made pursuant to this contract, except that one of the heirs, Henry Martin, declined to join in the conveyance to Russell of his individual interest. Russell Martin afterwards parted with his interest in most of the land, thus acquired by him, in the following order : 1. On the 6th day of June, 1866, he conveyed to Joseph

Martin v. Wagener.

R. Jewell lots 1 to 25 inclusive, being in block No. 84, in the village of Olean. On the 7th day of July, 1866, Jewell conveyed a life estate in these lots to Lydia Martin, the wife of Russell Martin, with remainder to his children. The plaintiffs had no interest in these lots. 2. On the 18th day of June, 1866, the Chautauqua County Bank recovered a judgment against Russell Martin, and his interest in lots Nos. 4, 5, 6, 8 and 10, above mentioned, was sold, aud bid in by the bank. The sheriff's certificate was assigned to Joseph H. Clark, who, on the 6th day of May, 1868, received a deed from the sheriff. The plaintiff's had no interest in these lots. 3. On the 18th day of October, 1866, Russell Martin, in connection with his brother, Stanley Martin, under and pursuant to the contract, bearing date the 31st day of August, 1866, conveyed to the plaintiff's his interest in all of the real property, inherited by him from his father, saving the land lying on the south side of the Allegany river, in the town of Olean. The plaintiffs and other heirs conveyed to Russell and Stanley their interest in the above excepted premises, at the same time. 4. On the 13th day of June, 1867, the First National Bank of Titusville recovered a judgment against Russell Martin. The sheriff, on the 2d day of November, 1867, sold lots numbered 17, 19, 20, 21 and 22, in block 85, in the village of Olean, under this judgment, to Charles S. Cary, who assigned the sheriff's certificate to the defendant Truman R. Coleman, to whom the sheriff deeded the lots on the 8th day of February, 1869. The plaintiff's had no interest in this land. 5. For aught that appeared, Russell Martin had an interest in lot 18, block 85, subject to the lien of the judgment in question. The plaintiff's did not claim any interest in this lot, by their complaint. 6. Russell Martin held the legal title to one-third of the one undivided seventh conveyed by Olean Smith to Russell, George, and Clarissa Martin. The judgment recovered by Upham against Russell Martin was

Martin o. Wagener.

assigned to Josephus H. Clark, and by him assigned to the defendant Rebecca R. Wagener, who, in consideration thereof, agreed with Clark not to permit lots numbered 4, 5, 6, 8 and 10, in the town of Olean, to be sold on the judgment. The defendant Rebecca R. Wagener directed the sheriff of Cattaraugus county to advertise and sell, on the execution issued and delivered to him, on the judgment in question, all of the land excepting the lots above desig. nated as lots Nos. 4, 5, 6, 8 and 10. The sheriff advertised accordingly. This action was commenced to restrain the sheriff's sale.

The complaint, among other things, alleged the above facts; also that the interest of Russell Martin, in the estate of his father, and in said lands, did not exceed in value the sum of $12,000; that the property conveyed and transferred to him in consideration thereof, and in exchange therefor, greatly exceeded that sum in value; that said Russell had, since the date of the contract and conveyance, disposed of all the property he received in and by said exchange, and was insolvent, and utterly unable to restore the same or procure restitution thereof, or of any part of it; but that said judgment, upon the execution of said conveyance, became a lien and charge upon an undivided three-sevenths of the land conveyed to him by the plaintiffs, that being the measure of the interest acquired by said Russell, and had ever since remained, and now is, a lien and charge thereon, and was superior to every and any other incumbrance thereon ; and that the said three-sevenths was of the value of $5000, and amply sufficient to satisfy said judgment, and all the costs and expenses of enforcing the collection thereof. The prayer of the complaint was, that the said Upham judgment might be adjudged to be a lien, charge and incumbrance upon none of the lands, except said lots 4, 5, 6, 8, 10, 17, 19, 21 and 22, and that all the others of said lands and premises be adjudged free, clear and

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