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Van Rensselaer v. Akin.

gages; and on the 22d February, 1834, the three mortgages executed by Akin, Goodman and Dickinson, were assigned by the surviving devisees in trust of Boudinott, to the children of John J. Van Rensselaer, he having died. The above facts relative to the transfer of the mortgages and bonds to Boudinott, the bill to foreclose, and the proceedings had thereupon, were set forth in the answer of Akin in the present suit. He also set forth in his answer, that on the 5th June, 1824, the present complainants, the children of John J.Van Rensselaer, filed a bill in chancery,calling Stepen N. Bayard, one of the trustees, to account, in which they alleged that he had taken upon himself the principal and almost sole management and execution of the trusts created by the deed of their father, and charge him with having released from the effect and operation of the mortgages, divers portions of the land, and thereby weakened the securities; and he further alleged that the estate of Bayard (he having died) had been decreed to account for the value of the bonds of Goodman and Jones, over and above the value of the lands securing the same.

On the first day of March, 1834 the respondents, the children of John J. Van Rensselaer, filed their bill against the appellant, and Goodman, Dickinson and Jones, for the foreclosure of the three mortgages executed by them on 10th March, 1810, alleging a large sum of money to be due upon them; they further alleged that Bayard died in 1831, and that the surviving trustee Stephen Van Rensselaer, had assigned and transferred to them all the property and effects of their father remaining in his hands as trustee, among which were the mortgages sought to be foreclosed; but this allegation was not proved. The proceedings in the suit in chancery prosecuted by Boudinott, and in the suit prosecuted by the complainants against Bayard, were received in evidence before the chancellor subject to exception. The bill was taken as pro confesso against all the defendants except Akin, as to whom the cause was heard on pleadings and proofs, and on 28th Janury, 1839, the chancellor dismissed the bill as to him. Whereupon the complainants appealed to this court. The cause was argued here by

Van Rensselaer v. Akin.

J. Blunt & D. B. Ogden, for the appellants.

J. Rhoades & S. Stevens, for the respondents.

After advisement, the following opinion was delivered :

By COWEN, J. I entirely concur in the chancellor's general conclusion. Independent of the more technical inquiry, whether the proofs sustain the title insisted on by the bill, or, indeed, make out any title whatever in the appellants, the bill was properly dismissed, as to Akin, on the merits. Each purchaser was treated from the beginning as the sole principal debtor for the share of the lands which fell to him on partition; and the mortgages, so far as they respected the other shares, were a mere secuity. Akin, therefore, stood on the mortgages as a surety for the debts of Goodman and Dickinson. As to the latter indivdual, Akin was most clearly discharged by the substitution of Jones' security, and the delivering up of Dickinson's bonds to be cancelled; and the trustees, with their assignee Boudinott, had tampered so much with the bonds of Goodman, that I think we ought to hesitate long before we hold that Akin's land should be charged for his debt.

But aside from these and various other considerations in the case, it is I think clear, that the release of Bayard should, under the circumstances, be allowed its full operation both as to him and his co-trustee. Certainly this would not have been so, had its operation depended entirely on the hand and seal of Bayard. Technically, all the trustees must join in releasing a security; and I think that in legal effect they have joined in executing the release to Akin. That paper was originally drawn for both to execute; Mr. Van Rensselaer's name was inserted in the body; and in addition to the name and seal of Bayard a space was left for the name of Mr. Van Rensselaer with a seal affixed. So long as Mr. Van Rensselaer kept the control of the mortgages in his own hands, he withheld his assent, and refused to execute. But by joining Bayard in an absolute assignment of the mortgages to Boudinott, he parted with

Van Rensselaer v. Akin.

that control, which passed to his assignee. The latter filed a bill of foreclosure and proceeded to a sale. In that proceeding, the name of Akin, and his share of the land, are dropped; and looking at the entire progress of the suit, in connection with other facts, the validity of the release is as plainly recognized, as if it had been recited and expressly confirmed. We are told in so many words by Boudinot that he went on to sell and did sell all the land covered by the mortgages except such as had been previously released; and by omitting the land of Akin, he says that had been released. As the holder and owner of the mortgage for the time being he possessed the power to make that declaration-to speak for Mr. Van Rensselaer, who had conferred it. It was the same, in legal effect, as if Mr. Van Rensselaer had himself filed the bill, and taken up and pursued the same course of procedure. That would have been a confirmation of Bayard's release; and this is equally so. It is not necessary to say that the omission of Akin and his land was of itself admissible in evidence against the appellants, although they profess to claim under Boudinot. I know that a chancery bill in its assertions and omissions, partakes so much of the surmises of counsel, that the courts are unwilling, as a general rule, to receive it in evidence against the client, or those claiming under him. But in the case at bar, we have the personal action of Mr. Boudinot. Under this bill, and the report and master's sale, all speaking the same language he becomes a purchaser, systematically overlooking Akin, and treating his land as exempt from the mortgage, in virtue of a release. What release? There was none except that of Bayard. Boudinot was as much concluded, in equity, as if he had taked the release into his hand and personally delivered it to Akin. In Smith v. Low, 1 Atk. 489, the mother of several infant devisees, assuming to have authority as guardian, demised their land by a building lease for 41 years. Of course the infants did not and could not execute the lease; but they acted upon it, by receiving rent, after they came of age; and Lord Hardwicke established the lease in equity; thus VOL. XXII.

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Van Rensselaer v. Akin.

declaring that such acquiescence was equivalent to an original delivery. See also Sadler v. Robinson's heirs, 2 Stew. Ala. R. 520. The case of Nelson v. Carrington, 4 Munf. 332, 341, will be found still more circumstantially in point.

I have said so much, with the view, among other things, to prevent the supposition that I mean to rely on the omissions in the bill filed by Boudinot, as evidence against him when taken by themselves. I am noticing the line of conduct which he pursued in his foreclosure cause, in which I do claim that we have a right to look at the omissions as one circumstance in connection with others. Authorities were cited on the argument to show that the proceedings in that cause cannot be received under the notion of transit in rem judicatam. That I do not mean to deny, although I do not think the chancellor at all extravagant in suggesting the contrary. If a man holding an entire lien in his hands will split or cut it down, by foreclosing as to a part only, he should be barred for the whole. I will not stop to inquire whether that objection applies; for it is perfectly well settled, that judicial proceedings may be given in evidence like any thing else, as circumstances from which to infer a given. consequence, without that concurrence as to identity of parties and subject matter which works a technical bar. The general principle was, I think, involved in Peters v. Anderson, 5 Taunt. 596, where the record in one suit against the defendant was received as a circumstance to show that the plaintiff had appropriated certain payments made by the defendant to another demand against him. The inference was derived from the fact, that in the course of the proceedings given in evidence, and which had been referred, he had omitted to credit the payment. A man is entitled to revoke a deed of property, and a judgment in a suit brought by him may be evidence, inter alios, as an expression of his intention to revoke. Dismukes v. Musgrove, 8 Mart. Lou. R. (N. S.) 375; and see Witmer v. Schlatter, 2 Rawle's R. 359, 366, per Huston, J.; Leeds v. Leeds, 12 Conn. R. 176, 179, 180. A prisoner escapes from execution, both while he is in the custody of the old and the new sheriff; the plaintiff may elect which sheriff he will sue.

Van Rensselaer v. Akin.

But if he go against the former, and recover judgment, the record is evidence in favor of the latter not that the case of the latter has passed in judgment, but as a circumstance to show the plaintiff's election, that he will look exclusively to the former. Here both parties and subject matter are different, and yet, in Rawson v. Turner, 4 Johns. R. 469, the former suit was holden conclusive. In Kemper v. Turner, 2 Miller's Lou. R. 149, 150, the defendant was sued for money which he had collected as attorney for the plaintiff. The now defendant had formerly sued the plaintiff's brother, in which suit he had credited him with the money now in question; and the now plaintiff had acquiesced in that credit. The first suit and acquiescence were received in evidence as a bar. There is a case in the Kentucky reports still more pertinent. The question was whether an alleged agent had acted within the scope of his authority in making a deed. Some of the parties now disputing the agency, had, while infants, filed a bill in chancery by their guardian, which contained a recognition of the agent's authority; and this bill was received in evidence against them; not, says Owsley, J. "as a fact, if it stood alone, that would be entitled to any extraordinary weight, but as a circumstance calculated to strengthen the presumption raised by various other facts, that in making the deed the agent acted. strictly within the scope of his authority; and, for that purpose, the bill was properly used in evidence." So, in the case at bar, the omissions in the bill of Boudinot may be received in connection with his other acts in the same cause, which cannot be accounted for on any hypothesis, other than that he intended the release of Bayard should take effect. Who was Bayard? He was the sole acting trustee. To him, Akin had paid his entire debt, or nearly the whole. Other considerable payments had been made on Goodman and Dickinson's bonds. Van Rensselaer himself knew from the begining that the purchase had been made with a view to retail the land; that the purchasers looked to the avails as constituting a great part of their ability to pay. They could not sell without releases, and many were given in which Van Rensselaer joined, on the very princi

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