assignment of stock as collateral to
his mortgage, released the latter,
with actual notice of the existence
of a subsequent mortgage on the
land; held, that the prior mortgage
was, so far as the right of the sub-
sequent one was concerned, satis-
fied to the extent of the value of
the stock. Loan Assoc'n v. Beaghen,
98

5. A mortgagor who procures a third
by him and receives the whole
party to purchase a mortgage given
proceeds, will not be permitted to
assail its validity. Bush v. Cush-
131
man,

6. The assignee of a mortgage or any
other chose in action, takes it sub-
ject to all equities and defences
existing between the original par-
ties at the time of the assignment.
No rights accruing after the assign-
ment, or defences springing from
defaults, or even fraud of the as-
signor, committed subsequent to
the assignment, and which had no
existence, and were simply possi
bilities at the time of the assign-
ment, can affect the assignee. lb.

7. In ordinary cases, a mortgagee does
not, by force of a contract of as-
sumption of the mortgage, acquire
a right of action against a purchaser
of the mortgaged premises, but the
benefit flowing to him from the
contract is limited to a right to be
subrogated to the rights of his
debtor. He stands in his debtor's
rights, and may appropriate, to
the satisfaction of his mortgage,
any security held by his debtor for
its payment; he can, therefore,
only have a personal judgment
against the purchaser for his debt,
when the mortgagor holds an obli-
gation which will support such
judgment. Crowell v. Currier, 152

8. A holder of a mortgage is not en-
titled to a decree for deficiency
against a purchaser of the mort-
gaged premises, by virtue of his
contract of assumption of the mort-
gage, where, before the mortgage
fell due, the purchaser re-conveyed
to the mortgagor, who, by his deed,
assumed the mortgage; the holder

owner of it before the covenant of
assumption, without reliance upon
it as part of his security, and his
conduct not appearing to have been,
in the slightest degree, influenced
by it.
Ib.

proceedings to condemn the land
under their charter, but caused the
commissioners to appraise only the
value of the land without the im-
provements, (the elevator.) Held,
that the condemnation being pen-
dente lite, could not avail the com-
pany as against the right of the
mortgagee to the land and the im-
Ib.
provements.

14. An alleged parol assumption of
a mortgage upon the premises,
claimed to have been made at the
time of their conveyance, held not
proved. Wilson v. King, 374

15. A mortgage conveying only an
estate for the life of the mortgagee,
will not be reformed to convey a
fee, as against the rights of a bona
fide purchaser of the mortgaged
premises for valuable considera-
tion, without evidence of actual
notice on the part of the purchaser,
more extensive than the record of
the mortgage itself.
Ib.

12. A horse railroad company en-
tered upon land with the consent
of the owner, (the land being sub-
ject to a mortgage,) and constructed
thereon, at great expense, an ele-
vator to raise their cars from the
bottom to the top of a hill. Held,
that the elevator was subject to the
encumbrance of the mortgage, and
that the company would not be en-
titled to redeem the land on which
they had constructed the elevator,
by paying to the mortgagee the
value of the land at the time
when the company took possession.
Booraem v. Wood,

VOL. XII.

371

Mortgages of real estate are usually
in fee, but constructive notice of the
existence, merely, of a mortgage,
with no notice as to the estate it is
intended to mortgage, will not be
notice that the mortgage is in fee,
if its terms convey a life estate
only.

See

See

Ib.

MORTGAGEE AND MORT-
GAGOR.

GRANTEE AND GRANTOR, 6, 9.
LIEN, PRIORITY OF, 4, 5.
MORTGAGE, 1, 4, 5, 7, 10, 11.
PRACTICE, 37.

PURCHASER, 5, 7.

MULTIFARIOUSNESS.

See PRACTICE, 31.

2. When, to a bill filed by an admin-
istrator against his intestate's co-
partner for an account, and for a
writ of ne exeat, the answer, deny-
ing the right to an account, sub-
stantially admits the correctness of
the allegations of the bill as to de-
fendant's statement of the assets of
the firm, and the amount of its in-
debtedness, but denies that the esti-
mates were correct, and that de-
fendant owes anything to the estate
of the intestate-such denial can-
not avail to discharge the writ. Ib.

3. Writ to be discharged, and the
bond given under it canceled, on

Orphans Court can make on such
an application, is as to whether the
necessity for the sale of real estate
does, in fact, exist; and on that
head they are to accept the report
of the administrator or executor, as
to the amount of debts, unless the
bona fides of his statement be as-
sailed, and it be made a question
whether the claims he reports have,
in fact, been presented to him, or
whether the amounts thereof be not
mis-stated. In such case, they are
not bound to accept his statement.

See JURISDICTION, 2, 3.

PAROL CONTRACT.

Ib.

See PRACTICE, 11, 12.

NON-JOINDER.

See PRACTICE, 14.

NOTICE.

See MORTGAGE, 15, 16.
VENDOR AND PURCHASER.

NUISANCE.

See DELAWARE RIVER, 9, 11.

Ib.

tract to purchase land at a sheriff's
sale, for the benefit of the defend-
ant in execution, an answer deny.
ing the contract will be good
without setting up the statute of
frauds. The bar to the complain-
ant's suit is then complete, because
no proof of the parol contract can
then be admitted, such proof being
illegal by the statute. Wakeman
v. Dodd,
564

2. The jurisdiction of equity to en-
force a parol contract of this kind,
rests upon the ground of fraud. The
cases wherein such contracts have
been enforced, have been where
the facts, aside from the contract,
have been evincive of fraud on the
part of the purchaser. When the

parol contract has been made use
of to mislead the complainant and
deceive him out of his property,
relief is afforded for that reason,

in fee, and they knew it, and were
aware of the foreclosure proceed-

ings.

Ib.

Ib.

3. The purchaser in this case, having
been, at the time of the foreclosure

on a vital question, must be made
parties before a decree will be
made. Courter v. Stagg,

305

311

Ib.

to the purchaser at a sale under
execution, and has received from
the attorney of the plaintiffs in the
judgment under which the land was
sold, a receipt for the full amount
bid, and delivered the deed to such
attorney, he is not a necessary
party to a suit by the purchaser
against such attorney to compel the
delivery of the deed. Whitney v.
Kirtland,

333

See PRACTICE, 32.

PARTITION.

A voluntary partition between ten-
ants in common, in all respects
fair, equal and just, upheld, and a
lien upon the lands held in com-
mon, under a judgment against one
of the co-tenants, held to have been
transferred to the lands conveyed
in the partition to the judgment
debtor. Polhemus v. Empson, 190

If a judgment debtor has commit-
ted waste of premises held by him
and another person as tenants in
common thereof, a purchaser at the
sale of his interest in the property
under execution on the judgment

consideration was paid to the ex-
ecutors, it was paid in such a way
as that it ought not to be regarded
as having been paid to or received
by them in their representative or
trust capacity, the facts should
have been set forth so as to enable
the court to determine the charac-
ter of the payment.
Ib.

7. A defendant in a suit in equity has
a right to insist that he shall be
distinctly and plainly informed of
the nature and foundation of the
claim made against him, and to be
notified by the bill what he has
said or done which gives his ad-
versary a right of action against
him. An assertion of a claim
against the defendant, by way of
inference arising out of a recital in
the bill of the finding of a master
under an order of reference on er
parte proceedings by the complain-
ant on petition, is insufficient.
Search v. Search,

137

8. No general rule defining what
causes of action may be properly
joined, and what cannot, can be
laid down. The question is al-
ways one of convenience in con-
ducting a suit, and not of princi-
ple, and is addressed to the sound
discretion of the court. Ferry v.
Laible,

146

Where it appears that the causes

of action or claims are so dissimi-
lar or distinct in their nature that
they cannot be heard and deter-
mined together, but must be heard
piecemeal, first one and then the
other, a clear case of misjoinder is
presented.
18.

10. But where a complainant has two
good causes of action, each furnish-
ing the foundation of a separate
suit, one the natural outgrowth of
the other, or growing out of the
same subject matter, where all the
defendants have some interest in
every question raised on the re-
cord, and the suit has a single ob-
ject, they may be properly joined,
and the objection of multifarious-
ness or misjoinder will not be sus-
tained.
Ib.