MORTGAGE.-Continued.

tween the parties to it, at the time of the assignment.
Waite,

Russell v.

31

31. Where a mortgage was given accompanying a promissory note, and they
were assigned before due to a bona fide endorsee, held, that he was not af-
fected by any equities existing between the original parties. It would have
been otherwise, if a bond had been given instead of the note. Reeres v.
Scully,
248
32. The assignment of a mortgage, without the debt which it is given to se-
cure, carries no beneficial interest in the mortgage to the assignee, who
would hold it subject to the will and disposal of the creditor. Bailey v.
Gould,
473

IV. Registry.

33. An agreement in the nature of a defeasance is required by the revised
statutes to be recorded, only when it relates to a conveyance, which, on its
face, purports to be absolute. Russell v. Waite,

V. Redemption of mortgaged premises.

31

34. When the mortgagor comes with his money to redeem, the mortgagee
must account for the profits of the mortgaged premises, of which the crops
which he may have appropriated or destroyed, will be considered a part.
Stevens v. Brown,

41

35. The act of 1840, for the foreclosure of mortgages, requires the redemption
money of the premises sold to be paid to the register of deeds, and to no
other person; and it is his duty, upon such payment, to destroy the deed
and pay over the money to the purchaser, his heirs or assigns. Wood-
bury v. Lewis,
256

36. The register of deeds has no right to receive anything but money, in re-
demption of property sold. His powers are limited to receiving the money,
and destroying the deed. He is a special agent for these purposes, only,
and his acts are not binding on the purchaser, when he exceeds or departs
from his authority, without the assent of the purchaser, Id.,
256
37. Where a bill was filed to have a deed of mortgaged premises canceled, on
the ground that the redemption money had been paid, and it appeared that
the register of deeds had received a check for the amount from complainant,
it was held to be no payment, and the bill was dismissed. Id., 256
38. The vendee of an equity of redemption stands in the place of the mortga-
gor and holds the property subject to all incumbrances; and where there
were two mortgages, and the mortgaged premises had been sold by foreclos-
ure, at law, on the first mortgage, on the payment of the redemption money
by such vendee, and the assignment to him by the purchaser at the mort-
gage sale of all the interest of the latter in the land, it was held, that
such vendee could not claim the rights of the purchaser at the sale, for

MORTGAGE.-Continued.

the purpose of defeating the second mortgage. Johnson v. Johnson, 331
39. When a subsequent mortgagee pays the redemption money of the mort-
gaged premises to the purchaser under the foreclosure of a prior mortgage,
he does not succeed to the rights of such purchaser, but stands in the place
of the prior mortgagee, the only additional right which he acquires being
the right to be reimbursed what he has paid, with interest, on foreclosing
his own mortgage. Id.,

331
40. When a mortgagor redeems, it should always be construed as a payment,
he being personally liable for the debt. But when his vendee redeems,
who is not personally liable, and there is an intervening mortgage between
the one redeemed by him and his equity of redemption, the same rule
should prevail as in case of a redemption by a subsequent mortgagee.
Id.,
331

41. Where a mortgage of indemnity was foreclosed at law, before the mortga-
gee had been damnified, the mortgagor was held entitled to redeem.
Thurston v. Prentiss,
529

42. Where W. W. gave a mortgage on land, and the mortgage was foreclosed
at law by advertisement and sale under the statute, but, before the redemp-
tion expired, he died, leaving a widow, who sold the land to P. D. W. by
a warranty deed, in consideration of his paying her $25 and what was due
on the mortgage; and P. D. W. redeemed the land under the mortgage
sale, by paying what was due, and the heirs of W. W. afterwards brought
an action of ejectment against P. D. W. to recover possession of the land:
it was held, he had a lien on the land for the redemption money paid by
him, with interest, less the use and occupation of the premises over and
above improvements. Webb v. Williams,
544

VI. Foreclosure under power of Sale.

43. If a mortgagor wishes to test the validity of a statutory foreclosure in this
Court, he must file a bill to redeem. He cannot file a bill to set aside the
sale, and have the property re-sold, although the mortgagee may have
abused the power to sell, and purchased the property himself. Schwarz
v. Sears.

44. Ante MORTGAGE, 10.

170

45. Although a statutory foreclosure be irregular, and no bar to the equity of
redemption, yet the purchaser at such sale succeeds to all the interest of
the mortgagee. Gilbert v. Cooley,

See ASSIGNMENT, 1, 2, 3. EVIDENCE, 7, 9. INJUNCTION, 13.

NAVIGABLE WATERS.

494

1. Navigable waters are public highways at common law; and the only object
of the clause in the ordinance of 1787, relating thereto, was, to secure to

NAVIGABLE WATERS.-Continued.

citizens of the Confederated States such rights, in relation to those waters
within the territory northwest of the Ohio, as were already possessed by
the inhabitants of that territory; and to prevent any tax or duty on per-
sons navigating them. LaPlaisance Bay Harbor Co. v. City of Monroe, 155

2. There is nothing in the ordinance prohibiting the State from improving its
navigable waters. Id.,
155
3. Where complainants were authorized by their charter to erect works, &c.,
and improve the harbor of La Plaisance bay, held, that the diversion of a
river, at a point some distance above its mouth, in the bed of which they
had no title, which flowed into said bay, and caused a channel to be kept
open through it, created no damage for which they were entitled to com-
pensation. Id.,
155
4. The beds of all meandered streams and navigable waters, belong to the State
within which they lie; and the riparian proprietor has no right to the land
covered, without express grant.
Id.,

155

NOTICE.

1. A plea of a bona fide purchaser without notice, must aver, not only a want
of notice at the time of the purchase, but also at the time of its comple-
tion, and the payment of the money. The money must have been actually
paid before notice. Thomas v. Graham,

117
2. It is not enough that the party has secured the money; he must have paid it
or become bound in such a way that this Court could not relieve him from
the payment of it. Id.,
117

See EQUITY, PRIORITY OF, 1, 2. VENDOR AND PURCHASER, 1, 3, 4, 5.

NUISANCE.

See INJUNCTION 6.

ORDINANCE OF 1787.

1. The ordinance of 1787, for the government of the Territory of the United
States northwest of the River Ohio, is no part of the fundamental law of
the State, since its admission into the Union. It was then superseded by
the State Constitution; and such parts of it as are not to be found in the
Federal or State Constitution, were then annulled by mutual consent. La
Plaisance Bay Harbor Co. v. City of Monroe,
155

2. That ordinance was enacted before the Constitution of the United States,
with a view to existing circumstances; and was intended to operate be-
tween the confederacy and the territory, as the articles of confederation did
between the States. In construing it, the articles of confederation, and
not the Federal Constitution, must be looked at. Id.,

155

ORDINANCE OF 1787.-Continued.

3. By the "permanent constitution and State government," mentioned in the
ordinance, is to be understood the establishment of a new government, as
a substitute for the territorial one, and a constitution instead of the ordi-
nance; and this substitution was to be not for part, but for the whole of
each. Id.,

See NAVIGABLE WATERS, 1, 2. REGISTRY, 2.

155

PARTIES.

See JUDGMENT CREDITOR'S BILL, 22, 23, 26. MISTAKE, 1. PLEADING, 1,

PARTITION.

A partition will be decreed according to the equitable rights of the parties.
But, to enable the Court to make such decree, their equitable rights should
appear from the pleadings. Thayer v. Lane,

PARTNERSHIP.

200

1. In equity, as between partners themselves, real estate purchased by them
with partnership effects, is partnership property, and, on the dissolution of
the firm, should be divided as such, each party taking the same share in it
as in the personal property, unless at the time of the purchase it was un-
derstood to be an individual and not a partnership transaction. Thayer
v. Lane,
200

2. Where the question of partnership arises, not with third persons, but be-
tween the parties themselves, the agreement out of which the supposed
partnership arises, is to be construed as any other instrument between the
same parties. Bird v. Hamilton,
361

3. Where a party had failed to perform the preliminary conditions, upon the
compliance with which a partnership was to be formed, and the other par-
ty to the agreement, to enable him to perform, furnished his own capital,
and for a short time carried on the business in the name of the proposed
firm, it was held, that this was no waiver, and could not entitle the de-
faulting party to the rights of a partner. Id.,
361

PLEADING.-Continued.

I. Parties.

1. When the matter in litigation is entire in itself, it is not necessary that each
defendant should have an interest in the suit co-extensive with the claim
set up by the bill; he may have an interest in a part of the matter in liti-
gation, instead of the whole. Ingersoll v. Kirby,
65
2. Where complainant had signed a joint and several note with H. and was
sued alone, and had judgment rendered against him on the note at law,
held, that he need not make H. a party to a suit in this Court to restrain
proceedings on the judgment at law. Burpee v. Smith,
327
3. A magistrate before whom a judgment was rendered is not a proper party
defendant to a suit brought in Chancery to restrain proceedings on it.

Id.,

327
4. Where an officer has an execution in his hands, still in force, he is a neces-
sary party to a bill which seeks to restrain proceedings upon the judgment
on which it was issued. Id.,

327
5. It is a good ground of demurrer to the whole bill that one of the complain-
ants has no interest in the suit, and has improperly joined with others in
filing the bill; but there is no such rule in regard to defendants. Barstow
v. Smith,
394
6. In a suit respecting lands, where defendants were described in the bill as
heirs of the father, when in fact they claimed as heirs of their mother, it was
held, that they were properly made parties, as claiming an interest in the
property in controversy; and that, if they wished to take the objection that
their interest was not properly made to appear in the bill, they should
have demurred; and that it was too late to raise it on the hearing, after
proofs had been taken, and it appeared to the Court that the proper par-
ties were before it. Chipman v. Thompson,
405
7. Where a complainant parted with his interest in a mortgage before answer,
it was held a good objection to the suit. Wallace v. Dunning,
416
8. Where F. sold a piece of land by warranty deed to C. and took back a
mortgage, and, after his death, the land was advertised to be sold for taxes
levied before the sale to C., and the executors and trustees of F. attended
the sale for the purpose of purchasing the land, and thereby saving, as
they supposed, a foreclosure of the mortgage, but were prevented from
doing so by the fraudulent conduct of S., against whom they filed their
bill, it was held, that C. need not be a party. Taylor v. Snyder, 490

II. Bill.

9. Where a bill is filed for relief, the discovery is ancillary, and a demurrer
which is good to the relief is good to the discovery.
Raisin and Grand River R. R. Co.,

Welles v. River

35

10. Where a complainant, entited to discovery only, goes on to pray relief in
addition, his whole bill is demurrable. Id.,

35