Seeger's Executors v. Seeger.

The payment of his first note by Wood to Southwick, cannot affect Farnum; the amount was not paid to him. And if it had been, and the first notes of Southwick and Wood had both been paid, yet under the agreement as proved, upon which the assignment was delivered to Farnum, that it was to be held as security for any endorsements he might make, it is security for the endorsement of the two checks. And a mortgage made for future advances, is good as against a subsequent purchaser or mortgagee.

SEEGER'S EXECUTORS vs. SEEGER and others.

1. Where the will contains no power or direction to sell, such power is not created by implication, because necessary or convenient to enable the executors to execute the directions of the will.

2. When express directions are given to sell, and no person is named to inake the sale, the power of sale is held to be in the executors by implication, in cases where it is their duty to distribute or pay out the proceeds.

This cause was argued for final decree on pleadings and proofs.

Mr. Aitkin, for complainants.

THE CHANCELLOR.

This bill was filed by the complainants, the executors of the will of Adam Seeger, deceased, for a construction of the will and directions as to their duty. The will gives onethird of all testator's estate to his wife, Magdalena, and the remaining two-thirds to his two children, the infant defendants, Anna and Charles. It directs the executors to invest the two-thirds of his property, and use the interest and so much of the principal as is necessary for the education and maintenance of his two children. It directs that if one of his children should die, the other should be entitled to the

Seeger's Executors v. Seeger.

full two-thirds, or so much as should remain; and if both should die, he gave the two-thirds, or so much as should remain, to the defendants, the German Evangelical Lutheran Trinity Church of Trenton. The will contains no directions to sell.

Testator's wife died a few weeks before him; they left two children only, the infant defendants. His whole estate consisted of a house and lot in Trenton, the rents of which are entirely insufficient to educate and support these children, who are now fourteen and nine years of age, respectively.

The complainants are advised that they have the power of sale by implication, as without it they cannot perform the directions of the will, and invest the principal and apply so much as may be necessary to the education and support of the children. They pray a construction of the will and directions as to their duty.

There is no authority or decision, so far as my researches have extended, which holds that in a will which contains no power or directions to sell, such power is created by implication, because necessary or convenient to enable the executors to execute the directions of the will. When express

directions are given to sell, and no person named to make the sale, the power of sale is held to be in the executors by implication, in cases where it is their duty to distribute or pay out the proceeds. The cases referred to in the argument are confined to this point, and go no further. None of them sustain the position vaguely laid down in Washburn's Treatise on Real Property, and referred to in the argument. I am not inclined to extend the implication. beyond the authorities.

The executors have no power to sell even the two-thirds devised to the two children. The other question raised, as to the extent of the estate of the children, are not proper to be decided in this suit, which relates merely to the power and duty of the executors, who have no interest in that question; it is a question of law between the infant defendants and the church.

CASES

ADJUDGED IN

THE COURT OF CHANCERY

OF THE STATE OF NEW JERSEY.

MAY TERM, 1870.

COURSEN vs. CANFIELD and VAN SYCKLE.

1. The failure of a mortgagee to keep his covenant to procure certain releases, is no defence to a suit for a foreclosure of the mortgage, where the mortgagor agreed to pay the money at a certain time absolutely, and not on condition that the releases had been procured.

2. It does not affect the question, that the suit is brought by a bona fide purchaser of the mortgage for a valuable and full consideration, without notice of this covenant. He holds it subject to every equity and defence to which it was subject in the hands of the mortgagee.

3. Courts of equity will not give to such independent covenants an effect different from their legal effect, or turn independent covenants into conditional, because it will give better protection to a party, or diminish litiga

tion.

The cause was brought to final hearing, upon the pleadings and proofs.

Mr. Coult, for complainant.

The bill in this cause was filed to foreclose a mortgage given by John Canfield to Andrew W. Shaw, January 2d, 1866, to secure the payment of $2518.34, of which $1000 was due April 1st, 1866, $1000 April 1st, 1867, and the balance April 1st, 1868, with interest, payable April 1st,

Coursen v. Canfield and Van Syckle.

1866, and annually thereafter. Canfield, the mortgagor, paid Shaw, the mortgagee, five days after its execution, on the mortgage, $215.59, and he paid the interest in full to April 1st, 1867. The whole balance was due before the bill was filed.

On the 5th day of October, 1868, the mortgage was assigned by Andrew W. Shaw, the mortgagee, to Arminda Coursen, the complainant. The premises covered and conveyed by the mortgage, are situate in the townships of Green and Stillwater, in the county of Sussex, and were sold by Canfield, the mortgagor, to George L. Van Syckle, the other defendant, on the 21st of December, 1868, and he assumed to pay complainant's mortgage as part of the purchase money.

The defendants seek to avoid the payment of the money, and the foreclosure of the mortgage, on the following grounds: 1st. They allege that the mortgage was given by said Canfield to said Shaw, to secure a part of the purchase money for the premises therein described, which, on the day the same bears date, were conveyed by said Shaw and wife to said Canfield, by deed of warranty. 2d. That on the day the said deed was executed and delivered, and the mortgage given, Shaw, the grantor, executed and delivered to said Canfield an agreement in writing, and under seal, whereby he bound himself to procure and deliver to said Canfield certain releases, the better to secure the title to the premises he had conveyed, and that Shaw has broken his covenants in this agreement contained. 3d. The defendant, Canfield, alleges that at the same time the written agreement was executed, Shaw, the mortgagee, verbally agreed with him that no part of the principal of the mortgage should be payable, until he had performed his written agreement. 4th. They allege that at the time Canfield conveyed to Van Syckle, he represented to Van Syckle that no part of the principal of complainant's mortgage was to be paid, until the releases. mentioned in the agreement between Canfield and Shaw had been procured by Shaw, and that Van Syckle assumed to pay VOL. VI.

G

Coursen v. Canfield and Van Syckle.

complainant's mortgage on that express understanding. 5th. That they are advised by their counsel, that the title of Shaw, the grantor, and mortgagee to the premises conveyed by him to Canfield, and covered by complainant's mortgage, is a determinable fee, and set forth portions of the wills of Robert C. Shaw, the father of said Andrew, and of Andrew his uncle, from whom they claim said Andrew W. Shaw derived his title to the premises in question, to show that this opinion is correct. 6th. They allege that Shaw, the mortgagor, has removed from the state, and that he is not responsible.

These comprise all the material allegations contained in the defendants' answer. Do they constitute a defence to this suit? It is submitted they do not.

1st. Because, if the pretended oral agreement was made, and that, with the written agreement, would constitute an equitable defence as against Shaw, the mortgagee and grantor, they would not against a bona fide assignee.

A written or oral agreement made at the same time the mortgage was given, or subsequently, changing, limiting, or defeating the mortgage, of which the assignee had no notice, actual or constructive, to which the mortgagor was a party, would not affect the right of the assignee. It is a fraud upon an innocent purchaser, against which equity will not give him relief.

2d. Because, these allegations together amount only to an allegation of an outstanding title, or a defective title, and of covenants broken; and where there has been no eviction or ejectment brought, no such defence can be set up against a foreclosure suit, even by the mortgagor. Long's Adm'r v. Long, 1 McCarter 462.

3d. The complainant having taken the mortgage bona fide, before the sale of the premises by Canfield to Van Syckle, if the title is defective, or even if it had failed, this defence cannot be made. The remedy of Van Syckle would be against his grantor, on his covenants. Smallwood v. Lewin, 2 Beas.

123.