Hassell ข. Van Houten.

that he had never been married to her, but lived with her as his wife. It is proved that she was sometimes called and known as Catharine Gribble and sometimes as Catharine Cox. The testator in his will styles her his housekeeper, Catharine Gribble, and speaks of the natural children he had or might have by her. The will was made in June, 1871, and the testator died in May, 1878. Three of their children were born before the will was made, and the other two months after that time. The provision made for the defendant in the will is to be in lieu of all claims for wages or other services by her to him. It appears that the testator, while they lived together, conveyed real property, by deed, without her joining in the deed, and that such title was accepted as satisfactory. The relation between them was evidently not connubial but meretricious.

There will be a decree that she is not entitled to dower in the lands of which the testator died seized, or to which he was entitled at his death, and she will be enjoined from setting up or making any claim to dower in those lands or any of them. She will also be required to give up possession of the property occupied by her.

ABRAM M. HASSELL

v.

FRANCES L. VAN HOUTEN et al.

The defendant recovered from an insurance company the amount of a policy on her husband's life. The complainant was her solicitor in that suit. The insurance company paid the complainant, by its check, the amount of the taxed costs in the suit, and gave him also another check, certified by the bank on which it was drawn, for the amount due defendant, and drawn payable to her order. In a controversy between her and her solicitor over his share of the proceeds of the latter check-Held, that a demurrer, on account of his having made the insurance company a defendant, should be allowed.

Bil for relief. On general demurrer.

Hassell v. Van Houten.

Mr. C. Borcherling, for demurrants.

Mr. J. Coult, for complainant.

THE CHANCELLOR.

The complainant was the solicitor of the defendant Mrs. Van Houten, in a suit in this court (Van Houten v. Pine, 11 Stew. Eq. 72) to recover the money due on a policy of insurance issued by the Masonic Mutual Life Insurance Company. The suit was successful, and the company paid the decree by its two bank checks, one payable to the complainant for the taxed costs, and the other payable to Mrs. Van Houten for the debt. The former check was delivered to the complainant, and the latter to her, but was taken by the complainant into his possession, he claiming a lien thereon for the amount which he alleged was due to him from her, by agreement, for his counsel fees, to be paid out of the money recovered for the debt. The check was certified by the bank to be good. Proper discharges were executed and delivered to the company. A controversy arose between the complainant and Mrs. Van Houten as to the amount of his fees. She refused to endorse the check, or otherwise authorize him to receive the money upon it, or to pay him his fees. He thereupon brought this suit for relief in the premises, and made William E. Pine, president of the company, and Charles H. Ingalls, its secretary and treasurer (the company is unincorporated), and the bank, parties. Messrs. Pine and Ingalls have filed a general demurrer, and insist that they ought not to be made parties to the suit. It appears that the company has paid the debt and obtained its discharge, and the bank has certified the check. The effect of the certificate upon the check is to make the bank liable for the payment of the money thereon, as fully as if it had paid the check to Mrs. Van Houten, and she had deposited the money in the bank to her credit. Dan. Neg. Inst. § 1603. Generally, no person should be made a party who has no interest in the suit, and against whom, if the suit be brought to a hearing, no decree can be made. Story's Eq. Pl. § 231. On a bill to restrain the execution of process in his hands,

Eckerson v. McCulloh.

or the performance of his official acts, a sheriff may be made a party, as the object of the injunction is to restrain him from acting. Brooks v. Lewis, 2 Beas. 214. In this case no ground is suggested for making the company (by its officers) a party, except an apprehension that in some way Mrs. Van Houten may, by some arrangement with the company, manage to circumvent the complainant, or embarrass him in securing his claim. But the bill makes no averment that any such proceeding is threatened, or even meditated. The bill, indeed, prays that the company may be required to give the complainant a check for, or pay him the amount of the fees, and pay Mrs. Van Houten the balance of the amount of the check, which is the subject of this suit, but such action is not necessary to enforce the complainant's claim, and therefore the company ought not to be drawn into this controversy, in which it has no interest whatever. There is no ground for making the company a party. The demurrer, therefore, will be allowed, with costs.

JACOB ECKERSON

υ.

JAMES W. MCCULLOH et al.

The evidence in this case clearly established the complainant's right to redeem part of certain land, under an agreement with the defendant to attend a sheriff's sale thereof under foreclosure, and to bid it in for complainant's benefit. Part of the land was conveyed by the sheriff's grantee to a railroad company, by a deed which had not been recorded when the bill was filed.-Held, that the seventy-eighth section of the chancery act (Rev. p. 118) applied to the case, and that the suit, therefore, was not defective for want of parties.

Bill for relief. On final hearing on pleadings and proofs.

Mr. C. H. Voorhis, for complainant.

Eckerson v. McCulloh.

Mr. W. B. Williams, for defendants.

THE CHANCELLOR.

This suit is brought to redeem a tract of land of about two and one-half acres, at New Durham, in Bergen county. The complainant alleges that the property being advertised for sale under an execution issued in a foreclosure suit upon a mortgage given by him upon it to Michael Fritz, the defendant James W. McCulloh agreed with him that he would attend the sale and buy it in for him, and protect him against liability on his bond for deficiency, and would allow him one year in which to redeem the property by paying to Mr. McCulloh the amount he might be compelled to advance. Mr. McCulloh, on the other hand, says that there never was any agreement for redemption, but that the arrangement was, that he was to buy the property at the sale for a railroad company which he represented, and of which he was vice-president and general manager; and he says he also told the complainant that he believed he could make some arrangement with Fritz, within the limit of the amount which the company would authorize him to give for the property, to protect the complainant against liability to Fritz for deficiency. The railroad company before referred to, which was the Jersey City and Albany Railway Company, was, with the Ontario and Western Railway Company, of which Mr. McCulloh was a purchasing agent, desirous of obtaining part of the property, a strip of thirty-two hundredths of an acre, for their railroad (right of way), and another part, another strip of five hundred and ninetyfour thousandths of an acre, adjoining that just mentioned, for the use of the companies for other purposes; and it was out of the application to purchase such land that the proposition of Mr.. McCulloh to buy at the sheriff's sale arose.

The cause must be decided on the weight of the testimony. The complainant and his son David swear positively and distinctly that the defendant offered to attend the sheriff's sale and buy in the property, and protect the complainant against liability to Fritz for deficiency. The complainant's son George testifies, amongst other things, that, near the expiration of the year in

Eckerson v. McCulloh.

which the complainant was to redeem, he called on Mr. McCulloh and requested him to give him a statement of what the property had cost him, and Mr. McCulloh made and gave him one in which he claimed to have paid $943.08 for the debt and costs, and interest and sheriff's fees. He also says that Mr. McCulloh claimed interest thereon from March 24th, 1881, the day on which the sheriff's sale took place, and that he inquired of Mr. McCulloh what the railroad company would pay for the part of the land it had taken, and Mr. McCulloh named a sum (he says he thinks it was about $240), and he, the witness, said that that sum was to be allowed his father in the settlement between him and Mr. McCulloh, and the latter said, Yes. Mr. Voorhis, the complainant's solicitor, testifies that shortly before he began this suit, he called on Mr. McCulloh and told him that the year had nearly expired, and said they desired to have the matter closed up, and that Mr. McCulloh said that the complainant had had time within which to redeem the property, but it had expired, and that the property had been sold six months before the time of the conversation, to a railroad company which he named. Mr. Voorhis says he does not know whether it was the West Shore company, or the Ontario and Western. On the other hand, Mr. McCulloh explicitly denies the existence of any agreement to permit the complainant to redeem, and positively asseverates that the agreement was merely that he would buy for the railroad company, and try, in doing so, to protect the complainant against any claim for deficiency; which he says he has done. Mr. De Clark, who was Mr. McCulloh's assistant as purchasing agent, testifies that he was present at some of the conversations which took place before the sale, and that he never heard any agreement, except that which Mr. McCulloh states. But there are some circumstances in the case which tend to show that the agreement was as stated by the complainant and his son David. In the first place, two days after the property was sold by the sheriff, Mr. McCulloh wrote to the complainant that it had been sold, and that he "had had it bought in for $400," and added that that saved sheriff's fees on the difference between that sum and the amount of the decree. He further said that Fritz