Dorsheimer v. Rorback. Colchester, 2 Meriv. 395; Bennett v. Button, 1 Dick. 135; In Davis v. Morris, 13 Price 766, an application was made by motion, and allowed, to rectify a decree on a suggestion, made in aid of the decree, which would have been embodied in it almost as of course, as if it had been an omission. In Gardner v. Dering, 2 Edw. Ch. 133, it is said that the court may add to a decree, by declaring what are the rights of the L parties as ascertained under the first order or decree, and thus carry out and effectuate the object of the suit. In Clark v. Hall, 7 Paige 384, the court says: "A decree cannot be varied in substance, on petition, without a rehearing. But it may be corrected or amended, on motion or petition, as to mere clerical errors, or by the insertion of any provision or direction which would have been inserted as matter of course, if asked for at the hearing as a necessary and proper clause to carry into effect the decision of the court." In Sprague v. Jones & Graham, 9 Paige 395, an action (suit for foreclosure) was instituted on a mortgage made by Jones to secure the joint and several bond of both defendants. A decree was taken for the sale of the mortgaged premises, and against Jones, the mortgagor, for the deficiency which should exist after the sale. Upon application, without suggestion of misprision of the clerk, the decree was amended by the Vice-Chancellor, so as to be against both defendants for the deficiency. Upon appeal, the Chancellor said: "I have hesitated whether it could be proper, without a rehearing, to amend the decree in a matter of substance so material to the rights of the appellant; and upon examination of the cases, I am satisfied such an amendment would not have been permitted in the Courts of Chancery of England and Ireland, without discharging the enrollment and granting a formal rehearing of the cause. This court, however, has not been so strict in relation to the amendment of a decree in a matter as to which there could not have been a doubt of the complainant's right to have it made part of the decree, if it had been Dorsheimer v. Rorback. asked for, and where the neglect to ask the court to have it inserted in the decree as part thereof, arose from mere inadvertence." He concluded that the amendment was one which might be made by the court without a formal rehearing of the case. In the case before me, leave is asked to add a clause which is deemed necessary to carry the decree into effect; to effectuate the remedy of the complainant under it. It is proposed explicitly to declare the liability of the administrators of John Rorback, deceased, in their lifetime, and the disallowance of the payment made by them to John Rorback, under his alleged assignment. It cannot be doubted that, had the present application been made after the enrollment, to the late Chancellor, by whom the decree was signed, the addition would have been unhesitatingly allowed. In his opinion, he says: "The claim against the administrators of John Rorback, deceased, and their representatives, is sustained. They must be decreed to pay the whole amount of the distributive share, with interest." This conclusion results from his express and explicit disallowance of the payment made by the administrators to John Rorback. Had the cause been argued coram meipso, I would make the amendment as of course. I think I ought to do so, under the circumstances. No good reason appears to me for putting the parties to the delay and expense of a rehearing. Justice to the court, no less than to the parties, demands that the decree be made to conform to the obvious intention of the court. Given, the power to vacate the enrollment and amend the decree, the rest is but a matter of practice. The power of amendment is to be carefully, cautiously, and judiciously used, but it is not to be withheld when the ends of justice require its exercise. As has been well said, "the object in every litigation is to obtain from some court a final determination of the rights of the parties. That determination is invariably what the judges direct, and not invariably what the clerks record. The power of the court to make the record express the judgment of the court with the Emmons v. Hinderer. utmost accuracy, ought not to be restricted." Freeman on Judgments 48. The addition sought in this case is, in my view, one of those things which, if applied for on the hearing, would have been granted as a matter of course, as necessary or proper to carry into effect the decision of the court, and is quite within the practice. The other alterations are undeniably mere corrections of misprisions. The amendments are allowed. EMMONS and others vs. HINDERER. A mortgagor will not be permitted to cut wood and timber off of mortgaged premises, to an extent calculated to render the premises an insufficient security for the mortgage debt, though the mortgagee agreed, at the time of the sale, that the mortgagor should have the right to cut the wood and convert it into timber at his pleasure. In this case an injunction was granted by the late Chancellor, restraining the defendant from committing waste upon certain mortgaged premises in the county of Essex, and from removing from those premises certain timber and other trees felled by him thereon. A motion is now made on affidavit to dissolve the injunction. Mr. C. Borcherling, for the motion. Messrs. Blake and Freeman, contra. THE CHANCELLOR. The defendant purchased the premises of the complainants, in April, 1872, for $13,500, of which $3500 were paid in cash, and for the remainder a mortgage was given on the premises, payable in equal annual instalments, beginning April 1st, 1874, with interest. The interest being in arrear, Emmons v. Hinderer. a suit for foreclosure and sale was commenced, and is pending in this court. The evidence convinces me that the defendant has not only committed both legal and equitable waste upon the mortgaged premises, to the amount of between $3000 and $4000, but that, when the injunction was issued, he threatened and intended to strip the premises of all the wood and timber (including shade and ornamental trees), constituting a great part of their value. The improvements put by him on the premises appear to have been almost wholly ill advised, and to add but little, comparatively, to the value of the property. These improvements are subject to judgments on mechanics' lien claims to the amount of about $2000, which the defendant confessedly is unable to pay. It appears that when his pecuniary embarrassments began, he commenced to commit the waste. He has never carried on the sawing business on the premises, but, on the other hand, has carried away all the shafts, gearing, and machinery. He has declared his intention to strip the property of all its wood, including the shade trees, to sell it "to make money;" at the same time referring to the supposed helplessness of the complainants in the premises, saying that they were fools, and he would make them wait three years before they would get any money from him on their mortgage. He asks for a dissolution of the injunction, on the ground of an alleged agreement between him and the complainants, on the purchase of the property, by which, in consideration of his paying $3500 in cash, on account of the purchase money, instead of $2000, as originally proposed, he should have the right to cut the wood off the premises at his pleasure, for use in the sawing business, which he intended to carry on there, and to convert it into wood and timber, as he should see fit; and on the ground that the value of the improvements put by him on the property is greater than, that of the wood and timber he has taken from it, including the trees felled and lying on the premises. If such an agreement as that insisted on, really existed, the Miller v. Jamison. court would not permit its abuse to the prejudice of the mortgage creditor. Ensign v. Colburn, 11 Paige 503. But it is enough to say that the proof of any such agreement, in this case, is entirely unsatisfactory. As to the improvements, the evidence shows that, whatever their cost to the defendant may have been, they have added but little to the value of the property, The defendant is insolvent. He has already committed great waste and spoil, to an extent calculated to render the mortgaged premises an insufficient security for the mortgage money. The motion to dissolve is denied, with costs. MILLER vs. JAMISON and others. 1. A purchaser at a sale under an attachment is clothed with all the rights of the attaching creditor; and a voluntary conveyance by the debtor, pending the attachment, to a grantee having full knowledge of the attachment, is void as against such purchaser. 2. Where, besides the prayer for general relief, a part of the prayer of the bill is substantially that a deed may be set aside, the bill will not, because part of the prayer is that the defendant may be decreed to give the complainant possession of the land, be treated as a bill for possession, and be dismissed, on the ground that ejectment is the proper remedy. 3. Under the prayer for general relief, the complainant may have other special relief than that prayed for, if it be consistent with the case made by the bill. 4. Under a general demurrer for want of equity, no objection for want of form can properly be raised. 5. A mortgagee holding a mortgage given by a person holding title under a fraudulent conveyance, is a proper party to a suit to set aside such conveyance. 6. All persons participating in making a fraudulent conveyance, are proper parties to a suit to set aside such conveyance. 7. A defendant cannot demur to a bill, merely because other persons are improperly made defendants to the suit. The objection can only be taken by the parties themselves. |