Fitzsimmons . Ogden. 7 C.

2] FITZSIMMONS and others v. OGDEN and others.

7 C. 2.

He who has equal equity, may acquire the legal estate, if he can, so as to protect his equity.

THIS was an appeal from a decree of the circuit court of the United States for the district of New York.

The material facts as stated in the opinion of the court are as follows:

For the purpose of securing certain of his creditors, Robert Morris, on the 14th of February, 1798, conveyed to the appellants, as trustees for those creditors, a certain tract of land lying in Ontario county, in the State of New York, containing 500,000 acres, described by certain bounds. Previous to this, he had made conveyances to sundry persons of considerable portions of this tract, and amongst others to the defendants, S. Ogden, J. B. Church, and to G. Cottringer, under whom the heirs of Sir William Pulteney claims, of which the appellants had full notice. He had also, by different conveyances, granted to the Holland company more than three millions of acres of land, purchased, (as this tract of 500,000 acres had been,) from the State of Massachusetts, all in the same county and adjoining the land in question.

On the 8th of June, 1797, a judgment, at the suit of Talbot and Allum against Robert Morris, was docketed in the supreme court of the State of New York; which, being prior in date to the conveyance made to the appellants, bound all the land which passed by it to the appellants. The bill states that Robert Morris, being confined in the

jail at Philadelphia, in order to prevent any improper use [3] from being made of the above judgment, and on condition that the title to the land conveyed to the trustees should in nowise be impaired by it, procured Gouverneur Morris to advance the money for such judgment, from motives of friendship—that the said judgment was assigned to Adam Hoops, the mutual friend and agent of the parties, which was done to prevent it from being used injuriously against the trustees and the creditors for whom they acted, and also to preserve to Robert Morris the right of redemption in 1,500,000 acres which he had conveyed to the Holland company, in the nature of a mortgage as he supposed. That A. Hoops afterwards assigned the said judgment to Gouverneur Morris, and on the 16th of September, 1799, Robert Morris confirmed the said trust deed (of which it is

Fitzsimmons v. Ogden. 7 C.

worthy of remark, no mention had been made in the previous parts of the bill) and further agreed that any other land he might have in that county, which had not been previously conveyed, should be applied to pay that judgment in the first place, and the said last mentioned lands were to be sold upon an execution and to be purchased by A. Hoops under Talbot and Allum's judgment for the trustees, to which G. Morris assented, the trustees agreeing to mortgage the land to be purchased, to repay G. Morris the sum advanced for the purchase of the judgment.

It appears by the evidence, that, previous to the promise thus charged in the bill to have been made by G. Morris, to R. Morris, the judgment of Talbot and Allum had been conditionally purchased by R. Morris, jun., one of the appellants, avowedly for his individual use, from Cotes, Titford, and Brooks, who then held it by assignment. That when this purpose was effected, it was agreed that the assignment should be made to A. Hoops, though in reality for the use of R. Morris, jun., and should remain in the hands of a third person as an escrow to take effect on the payment of the note given by the said R. Morris jun., for the purchase of the judgment, and that the same should belong to Thomas Cooper, who indorsed the said note, in case he should be compelled to discharge the same.

R. Morris, about the time when this note would become due, * found himself unable to take it up, and, on this ac- [ 4 ] count, G. Morris had been solicited by R. Morris, and con

sented to pay the money and to retain the judgment to secure the advance. G. Morris, in his answer, expressly denies that any communication was made to him by R. Morris of his motives for asking, his assistance in procuring an assignment of the judgment—or that he had ever heard or knew of the claim of the trustees to any part of this 500,000 acre tract, or that the same would, in any manner, be affected by the judgment of Talbot and Allum, until some time after he had paid for the judgment, when it was accidentally communicated to him by A. Hoops, who held the assignment of the same for A. Morris, jun., as before mentioned. Upon receiving this information, G. Morris, with the assistance of his counsel, Thomas Cooper, projected a plan for protecting the interests of the trustees from being sacrificed by a sale under the execution which might issue on that judgment. Articles of agreement were accordingly drawn and executed by G. Morris and A. Hoops on the 29th of August, 1799, by which it was stipulated that the whole of the lands in the county of Ontario, purchased by R. Morris from the State of Massachusetts, amounting to upwards of four millions of acres, should be sold under the judgment, and should be purchased by A. Hoops, who should

Fitzsimmons v. Ogden. 7 C.

convey a certain part thereof to G. Morris, and should also mortgage that part of the said land which then belonged to the trustees, to the said G. Morris, for securing the advance made by him on the purchase of the said judgment. Although this large tract of country was, by this arrangement, to be sold under the above judgment, yet that judgment being posterior to the conveyances made to the Holland company, as well as to the other defendants below, they were consequently not bound by the judgment, nor could the title of the grantees have been affected by a sale under it. The object of this agreement, however, in relation to those lands, was to secure to G. Morris a supposed, but totally unfounded claim which R. Morris had asserted to an equity of redemption in one of the large tracts sold by him to the Holland company, and also an imaginary quantity of surplus land presumed by R. Morris to be somewhere within the bounds of this

great tract of country which was to be sold, which surplus, [ *5] as it afterwards turned out, had no real existence.

As to

the land belonging to the trustees, which it is admitted was bound by this judgment, G. Morris was contented to receive a mortgage of that to secure his advance for the judgment.

A draft of an agreement was also made by Thomas Cooper, by the directions of G. Morris, and delivered to A. Hoops, to be carried to Philadelphia, and to be proposed to R. Morris, and the trustees; but the terms of that agreement do not appear in any part of this record, although it is fairly to be presumed that it did not vary materially from the above agreement between G. Morris and A. Hoops. This draft was not altogether approved by the parties in Philadelphia, and another agreement was accordingly drawn and executed by R. Morris, the trustees, and A. Hoops, bearing date the 16th of September, 1799, which did not materially differ from the agreement of the 29th of August preceding, except that, by the latter, the surplus land, if there should be any, was to be mortgaged to the trustees, as a security for reimbursing the whole or such part of the aforesaid judgment as the trustees might be obliged to pay for the discharge of the mortgage to be given by A. Hoops, for securing the advance made by G. Morris, for the purchase of the judgment.

This agreement was afterwards shown to G. Morris, who expressed some displeasure at its departure from the plan which he had himself arranged; but he admits in his answer that he never communicated his disapprobation either to R. Morris or to the trustees.

It appears, in evidence, that there was a stay of execution on the judgment of Talbot and Allum, for three years from the time it was entered, which of course would not have expired before the 8th of June, 1800. This stay was released by R. Morris at some period

Fitzsimmons v. Ogden. 7 C.

subsequent to the interview which took place at the jail between R. Morris and G. Morris; but the particular time when it was executed does not appear from the record. It is not, however, improbable that it was not long subsequent to the 2d of May, 1799, since it appears that, on that day, R. Morris, jun., in a letter addressed to T.

Cooper, directing him to assign the said judgment to G. [6] Morris, requested him also to forward to him the form of a

release to be executed by his father.

In pursuance of the arrangement which had been agreed upon between these parties as above mentioned, all the lands which R. Morris had purchased from the State of Massachusetts, in the county of Ontario, were advertised to be sold under the said judgment, on the 6th of February, 1800. Hoops, as it had been agreed, attended on the day of sale and bid for the land; but being overbid, and not having the means to pay for the same in case it should be struck off to him, he prevailed upon the sheriff to adjourn the sale to the 13th of May following, upon his engaging to pay the sheriff his poundage, which undertaking G. Morris, soon afterwards, on application, furnished him with the means of discharging.

On the 22d of April, 1800, G. Morris, without having communicated to R. Morris, or to the trustees, the slightest intimation that he had come to such a determination, assigned over the said judgment to the Holland company for a full consideration paid therefor, and without notice, as they, the Holland company, expressly allege in their answer, of the claim of the trustees, or of the equity stated in their bill.

The same day, articles of agreement were entered into between Thomas L. Ogden, the Holland company, and G. Morris; by which it was stipulated that the sale of all the lands by the execution on the aforesaid judgment, should take place, and should be purchased by the said Ogden, in trust, to convey to the Holland company, the several tracts of land which had been granted to them by R. Morris, and to the several persons to whom conveyances had been made within the limits of the 500,000 acre tract, prior to the deed to the trustees, the tracts to which they were respectively entitled, or such parts thereof as three persons, Hamilton, Cooper, and Ogden, should direct; and as to the residue of the said 500,000, in trust, to convey the same to such persons, in such parcels, and upon such terms as the said Hamilton and others should direct. In execution of this agreement, Ogden attended the sale on the 13th of May, * and purchased the whole of the lands, taken in execution [ under the said judgment, for the sum of $5,200, and receiv

7 1

Fitzsimmons v. Ogden. 7 C.

virtue of the powers vested in them, directed conveyances to be made by Ogden to the Holland company, according to the bounds expressed in the several conveyances to them by R. Morris, except so far as such bounds would interfere with Watson, Cragie, and Greenleaf. In order to compensate the defendants, Samuel Ogden, Sir William Pulteney, and John B. Church, for the land taken on the westward of their tracts, by fixing the true meridian line of the Holland company to the east, the eastern line of those persons is made to run in upon the lands claimed by the trustees, so far as to give the former the full quantity of land mentioned in their respective conveyances. The direction, or award, as it is called, then proceeds to allot to the trustees 58,570 acres, (not half the quantity they claimed,) upon certain conditions, one of which is to pay to the said trustee, for the use of the Holland company, $5,623, with interest from the 22d of January, 1800. This sum, together with others, charged upon such of the grantees as were benefited by this arrangement, were intended to reimburse the Holland company the sums they had advanced, not only for the purchase of Talbot and Allum's judgment, but of another, which, being posterior to the conveyance to the trustees, created of course no lien upon any part of the 500,000 acre tract.

The prayer of the bill is for a conveyance, by Thomas L. Ogden, of all the land to which the trustees are entitled according to its real boundaries, upon the trustees paying such proportion of the money due by Talbot and Allum's judgment as is fairly chargeable on their land, and for general relief.

[ * 17 ]

[ * 18 ]

* February 20.1 WASHINGTON, J., after stating the facts of the case, delivered the opinion of the court, as follows: *The first point made by the counsel for the appellants is, that G. Morris ought to be considered as a trustee of Talbot and Allum's judgment for the trustees. On this point it is contended that, although in the first instance, G. Morris might have had no other inducement in purchasing that judgment than to perform a friendly service to R. Morris, yet he afterwards charged himself with the interests of the trustees by an express declaration contained in the agreement of the 29th of August, 1799, connected with the subse quent agreement of the 16th of September, 1799, which, notwithstanding his disapprobation of some parts of it, he adopted by his silence and subsequent conduct. The trust being thus established, it is then contended that the Holland company, the purchasers of this judgment from G. Morris, took the same, clothed with all the equita

1 Absent, MARSHALL, C. J., and LIVINGSTON, J.; the other five present.