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Kirkpatrick v. Corning.

Bill for relief. Motion to strike out parts of bill.

Mr. T. N. McCarter, for the motion.

Mr. F. B. Candler, of New York, contra.

THE CHANCELLOR.

The defendants, Corning, Ludlum and wife and the Pompton Steel and Iron Company, move to strike out certain specified parts of the bill under the two hundred and fifteenth rule, which provides that any objection to a bill, or any answer or special replication, or any part thereof, may be made and adjudicated upon on motion without the filing of a demurrer or exceptions, but the notice of such motion (which shall be an eight days' notice) must state the particular ground or grounds of objection. The rule also provides that the making of a motion under it shall be deemed a waiver of the right to demur or except. The ground stated in the notice in this case is, that the decision of the court of errors and appeals in this suit has rendered the allegations objected to irrelevant and impertinent, and has relieved the defendants from all obligation to answer them, and has determined that the complainant is not entitled to any relief on account thereof. The decision referred to (Kirkpatrick v. Corning, 11 Stew. Eq. 234) was upon the demurrer, which was a general one. It reversed the decree of this court (Kirkpatrick v. Corning, 10 Stew. Eq. 54) sustaining the demurrer. This motion is opposed on the ground that the chancery act (Rev. p. 109 § 31) provides that if the plea or demurrer filed by a defendant be overruled, no other plea or demurrer shall be thereafter received; but in such case the defendant shall file his answer to the complainant's bill in forty days after such overruling; and, if he fail to do so, the bill shall be taken as confessed &c.; and it is argued that the demurrer having been overruled and the defendants ordered to answer, they cannot again demur; this motion being, in fact, a new demurrer. But, although the act declares that after a demurrer has been overruled the defendant shall answer, it has always been held that it is in the discretion of the court in such case to permit him to file

Kirkpatrick v. Corning.

a plea instead of an answer. Hall v. Nicholson (1826), Stew. Dig. 434; White v. Dummer (1841), 1 Gr. Ch. 527; Seeley v. Price (1845), 1 Hal. Ch. 231. In the English chancery practice there have been instances in which a general demurrer has been allowed in part only (Mitf. Pl. 214), but the practice there is, as it is here, to overrule the demurrer if not good to the whole bill, though it might have been good if filed as to part only. In such cases, however, leave will sometimes be given to amend the demurrer, so as to confine it to the objectionable part of the bill. 1 Dan. Ch. Pr. (4th Am. ed.) 584. See, also, Story's Eq. Pl. § 459. And such is the practice of this court. Vanderveer v. Stryker, 4 Hal. Ch. 175, 186; Marsh v. Marsh, 1 C. E. Gr. 391. Such leave to amend has in the English practice been given even after judgment on the demurrer. Baker v. Mellish, 11 Ves. 68.

In the case in hand the demurrer was sustained in this court. The appellate tribunal reversed the decree, but expressed an opinion that the view of this court was correct as to part of the bill. An application to amend the demurrer, if made, would not have been entertained by the court of appeals. When its decree of reversal came to this court, it was, according to the practice, made the decree of this court. So that in this case the application to amend was necessarily made after the decree overruling the demurrer. The bill, amongst other things, attacks the proceedings prior to the decree in the foreclosure suit, and seeks to open the decree to enable the complainant to avail himself of the defence of usury in the mortgages, at least to the extent of obtaining a reduction in respect of premium or bonus, alleged to have been taken upon the loan secured by the mortgages. This court was of opinion that the decree is conclusive against him, and the court of errors and appeals concurred in that opinion. All that part of the bill, therefore, which has reference merely to that matter, should be stricken out as impertinent and irrelevant. This court was of opinion, too, that the sale of the personal property to Corning was conclusive upon the trust now represented by the complainant in this suit, and there is nothing in the opinion of the court of errors and appeals expressive of dissent on that head. This motion is, in effect, an application to amend the de

Third National Bank v. Cary.

murrer so as to confine it to that part of the bill which both here and in the court of last resort was held bad, and to strike out that part of the bill. It will be granted. The parts of the bill mentioned in the notice will all be struck out.

THE THIRD NATIONAL BANK OF THE CITY OF NEW YORK

υ.

SPENCER C. CARY et al.

The circumstances in this case prove a resulting trust in the defendants' deceased brother, whose heirs-at-law the defendants are. As there is no evidence that the answering defendant knew of the existence of the trust, he is entitled to his costs.

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

Mr. James Flemming, for complainant.

Mr. E. D. Deacon, for answering defendant.

THE CHANCELLOR.

The bill is filed to establish a resulting trust in favor of the complainant, as to certain land in Jersey City, of which William H. Cary died seized. He died June 5th, 1881. The property was conveyed to him in July, 1879, by sheriff's deed dated November 21st, 1878. When the property was conveyed to him he was in the employ of the complainant as coupon clerk (a responsible position indicating great confidence on the part of the complainant in his integrity), and he continued to be so up to the time of his death. The property was bought in for the complainant by its solicitor at the sheriff's sale, which was under execution on a decree in a foreclosure suit in this court. The price was the amount due, $3,686.74, on the first mortgage on the

Third National Bank v. Cary.

property, held by Mrs. Mary E. Toffey. The complainant held the second mortgage, on which there was due, at the date of the decree, the sum of $24,660.76, and the decree was for the sale of the mortgaged premises to pay both mortgages. The sale took place on the 21st of November, 1878. The purchasemoney was paid by the complainant, and it paid for recording the deed to Cary, which was given to him by the sheriff at the direction of the complainant's solicitor. The complainant paid all the arrears of taxes on the property. It has had possession of it and has taken the rents ever since the sale. Cary died intestate. He was never married. The defendants are his brothers and sisters, the wives of those of the former who are married, and the husbands of the latter, Samuel Cary, senior, Cary's administrator, and Benjamin S. Clarke, who claims to be a creditor of Cary's estate. Spencer C. Cary, one of the brothers, is the only defendant who has answered and litigated the matter. His answer denies the trust, and that the property was paid for by the complainant, but alleges that though the complainant may have actually paid the purchase-money, Cary was permitted to buy the property in order thus to pay or secure to him money which he was then entitled to receive from or through the complainant for compensation for services rendered by him to it or other persons.

The proof is clear that the property was bought in for the complainant by its solicitor, that the purchase-money was all paid by the complainant on its own account, that the property was conveyed to Cary for the benefit, and only for the benefit of the complainant, and that he never had possession, but the complainant always had it, and took the rents from the time of the sheriff's sale. On paying the purchase-money the complainant's solicitor took for its security an assignment of the first mortgage and the decree for the payment thereof. There is no room to doubt that Cary held the property under a resulting trust in favor of the complainant, and there are no circumstances in the case to hinder this court from declaring the trust as against the defendants. There will be a decree accordingly.

There is no reason to conclude that Spencer C. Cary had such

Smith v. Gummere.

evidence of the facts as not to warrant him in putting the complainant to proof of its equitable claim to the property. He has offered no evidence in the case, but has submitted the matter to the decree of the court on the proofs presented by the complainant. It appears by the evidence that the complainant intended to take a declaration of trust from William H. Cary, and that the latter went (in 1879) to the office of its solicitor to execute the paper, but it would seem that it was not executed merely because it had not been drawn, and the matter through inadvertence was not attended to afterwards, although Cary did not die until June, 1881, and was in the employ of the complainant up to that time. Under the circumstances it is proper that Spencer C. Cary should have his taxable costs of this suit.

MARY K. SMITH, by her guardian,

υ.

BARKER GUMMERE et al., admrs. &c., et al.

The defendants' intestate was appointed general guardian of complainant, his granddaughter, in February, 1865, and special guardian to sell some of her lands in July, 1865, and he gave sureties in each capacity. He sold those lands but never rendered any account of the proceeds, nor of his disposition thereof after his report of the investment thereof, made soon after they came to his hands, and never filed any account as general or special guardian. His ward, who was born in 1863, always lived with him thereafter. He died insolvent in 1881. On exceptions to a master's report as to the allowances to and charges by the guardian, and as to his sureties' respective liabilities-Held, that the cost of furniture purchased for and used by the ward should be allowed; that the time when she was absent from his house during her school vacation should be deducted from his charge for board; that he should be charged with the amount of rent he would have received from the ward's house if he had kept it in tenantable condition; that the report of the sale (not carried out) of that property, signed by him, although never hled, was competent evidence as to the terms &c. of that sale to charge him with rent for the property; that he should be charged with interest annually on the amounts originally received by him as general guardian, and interest on the rents, but

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