William Johnson

“ But what difference is there, in equity, between the case of any other holder of these bills, and that of Greenleaf, who, when liable, equitably, only for one third, was compelled to take up the whole, and did it with his own funds? It consists only in this; that the one becomes creditor for the whole; the other only for two thirds.
Upon the whole, we are of opinion that the thirteen squares purchased by Campbell should be rateably charged with the payment of the debt resulting, under these transactions, from Morris and Nicholson to Greenleaf. ”

“ But if the condemnation of an equity of redemption is sanctioned by the act, the sale of that equity under a fieri facias is equally sanctioned. The one is a necessary consequence of the other. An execution is as natural to a decree in equity as to a judgment at law. ”

“ The uncertainty under which a purchase is made, when made subject to an unliquidated incumbrance, gives such a purchase somewhat the nature of a speculation which the purchaser ought, to a reasonable extent, to have the benefit of, if it prove lucrative. It is, therefore, only on the ground of an equitable existing lien upon the mortgaged premises, or equitable claim upon Campbell, that the Court can decree in favour of the assignees. ”

“ But considering, as we do, that Law is not in default, there can be no reason to decree a specific performance when every thing shews that it would be productive of nothing but loss. Besides, a specific performance, such as would answer the ends of justice between these parties, has now become impossible. Carroll's property is resumed; a large proportion of the land, purchased of the Commissioners, sold under legal process, and thus the benefit of selection so diminished that if performance were to take place, it must take place stripped of this its most valuable appendage ”

“ Law's knowledge of the incumbered state of the title is of no consequence whilst the opposite party was under an obligation to make that title good and sufficient. The assignees are, in this respect, in no better situation than the original parties. Their rights and interests are altogether subordinate to those of Law. They take the property in every respect incumbered with the obligation to make good the contracts of Morris, Nicholson and Greenleaf with him, not only on general principles, but by express exception in favor of existing liens and incumbrances. ”

“ That the proceedings exhibited by the Complainant appear to be proceedings at law, and not in equity; and therefore, that if the Complainant has any title under those proceedings, it must be a title at law, and his remedy is at law and not in equity; and that no proceeding by these Defendants against Duncanson and Ward in equity, can injure the Complainant's title at law, if any he has. They therefore deny his right to relief in equity, and contend that the Court, as a Court of equity, has not jurisdiction in the case stated by the Complainant in his bill. ”

“ It is contended in behalf of Morris, Nicholson and Greenleaf that it should be by specific performance or by an issue quantum damnificatus; that, at any rate, it should not be by a decree to refund the purchase money with interest, as the value of the residue was necessarily diminished by the gratification of so large a proportion of his right to select.
To obtain a specific performance is no object of Law's bill; it is incumbent on the opposite party therefore to shew some ground of right to force such a decree upon him. ”

“ Law the balance of property which he claims, the Defendant, Campbell, can have no right to the lots as against the Complainants until he shall have satisfied them for all the property which they shall have been so compelled to convey to the Defendant, Law, and shall also have satisfied all equitable claims of Greenleaf upon Morris and Nicholson. ”

“ Campbell purchases at a reduced price, subject to an incumbrance; but give effect to this release and he holds an absolute fee absolved from all incumbrance.
Again, the property, mortgaged to Law, is liable for the whole amount to be raised for his indemnity; but give efficacy to this release, and whilst Campbell acquires an unincumbered estate, on the one hand; on the other, the residue of the mortgaged property, (that of which the assignees have not been deprived by sale of the sheriff,) must be sacrificed to raise the money due to Law. ”

“ It recites that, 'whereas it often occurs that persons against whom judgments or decrees are obtained, hold and possess, or claim lands, tenements, or hereditaments, by equitable title only, and the creditor or creditors of such persons are often without remedy, either at law, or in equity,' and then goes on to give the chancellor power to decree a sale of the equitable title ”

“ They aver that the building contract constituted a material part of the consideration in the sale of lots to the Complainant; that the assignment of that contract to the commissioners of the city, by Morris and Nicholson, was not valid, and did not exonerate the Complainant from his obligation in equity to perform it. They proceed to state with more minuteness the facts and transactions stated in their original and amended bills against Law and Campbell. ”

“ The bill of Pratt and others, against Duncanson and Ward, was originally filed to obtain an injunction to prevent Duncanson from selling certain squares which he had advertised for sale under a mortgage dated the 12th of September, 1795, given to him by Morris, Nicholson, and Greenleaf to indemnify him against the return of certain bills of exchange which he had drawn for their accommodation for 12,000l. ”

“ The general rule is that equitable rights must be enforced by equitable means, and legal rights by legal means.
The case in New York was decided upon the statute of that state, and a long previous practice under the statute of 5 C. 2, c. 7. ”

“ In the agreement with the commissioners they stipulate to chuse the lots by squares; to build twenty houses per annum for seven years; and until the year 1796, not to sell without the building stipulation.
In the agreement with the Carroll, the division was to take place by lots; not by selection, but alternately in order; and a variety of building and other stipulations were entered into, which not being complied with, Carroll re-entered on his land, and the contract was finally abandoned. ”

“ The answer then avers that Morris and Nicholson never paid the purchase money due to Mr. Carroll, nor in any other respect complied with the contract with him, whereby they forfeited all right to the purchase of the property therein mentioned, and disabled themselves from conveying to the Defendant, Law, the property he had so selected. That one of the purposes of the deed of assignment under which the Complainants claim title, was to pay Mr. Carroll 13,000 dollars due upon that contract, whereby it became their duty to pay that sum so as to obtain titles for the Defendant, Law ”

“ Pratt and others, that the Defendants should pay to the Complainant on or before the 1st of April, 1814, $25,832.88, being the original purchase money for the part not conveyed, with interest from the 3d of December, 1794, and in default thereof, that the mortgaged property should be sold to raise the same, &c. ”