Wilkes v. Harper. nishes a basis for the equity set up, provided the waste of the estate had occurred prior to the docketing of the judgment. But I do not think that the legal propositions for which the complainants contend, will support their case as it is exhibited by the proofs. They do not show when their alleged equity originated, except that it was between December, 1835, and January, 1840. The court cannot upon this proof, hold that it was before January, 1837. And my conviction is clear, that no subsequent devastavit could raise an equity which would interfere with the lien of the judgment. I will illustrate this farther, by stating what I consider to be the rationale of the complainant's argument, without however committing myself in its support. For this purpose, let it be admitted that on the first of January, 1837, Horatio Wilkes had wasted the estate and the Garnett fund, so that in 1840 the latter had to be made good by his brothers and sisters. I commenced with showing that in such a state of things the Garnetts, in the regular course, could not have reached the undivided real estate of Horatio which remains. The complainant's argument is, that on the Garnett's filing a bill in December, 1836, to enforce their claim, in which Horatio and all the others would have been defendants; the law clearly entitled them to a decree for payment against Horatio, Hamilton, and the others as legatees. Then if pending that suit, the present complainants perceiving that they were to be brought in personally for the debt, had filed a cross bill against Horatio and the Garnetts, setting forth that an ample fund was left in Horatio's hands to pay this debt, which he had squandered; that as between him and them he ought to pay the whole of it, and that there still remained to him the undivided estate in remainder in the Laight street house; that this was devised to him by the will, and that in equity it ought to be applied to the Garnett debt, to make up from the realty left to him, the property of others left by the same testator, which he had wasted. And then the cross bill had prayed for a decree to sell this real estate, and out of it to pay the Garnett debt. Such a course would have exhibited the claim; and its justice is perfectly manifest. The only open point in it is, whether such claim is a right or equity enforceable directly against the land; Wilkes v. Harper. or whether it is any thing more than a debt for money paid, to which all the debtor's property is liable, but which is not chargeable upon any specific portion of it until judgment or execution.(a) The complainants contend that it is the former, and on that footing it would be an equity superior to the lien of a subsequent judgment. But my statement of the proposition shows, that the equity must exist prior to the judgment; and this the case before me does not establish. I am therefore not called upon to decide, whether there was such an equity upon a devastavit prior to 1837. If as seems probable, the waste occurred before the defendant's judgment, the complainants ought to be permitted to present the question fairly to the court. I do not feel at liberty to retain the bill for amendment at this late stage of the cause, and unless the defendants consent to its being amended on terms, it must be dismissed with costs, and without prejudice to a new bill. There is one inducement on their part to permitting such amendment. In the event of the claim against them being sustained on this bill after amendment, they would not be subjected to the costs of the suit.(b) (a) See the difference between a right to proceed against a fund, and an equitable or other lien thereon, illustrated in the instance of specialty debts of the ancestor, the heir having aliened the estates descended. Richardson v. Horton, 7 Beavan's R. 112. (b) The defendants declining to allow the amendment suggested, the bill was dismissed with costs, and without prejudice. Burrell v. Bull. BURRELL, Trustee, &c., and STEWART v. BULL and others.. A husband cannot be a witness in favor of his wife, or of her trustee, in a suit respecting her separate estate; although he has no interest in the subject matter. This was held on the ground that public policy prohibits husband and wife from being witnesses for or against each other in civil cases, and from testifying during or subsequent to the marriage, concerning what transpired between them while the marriage subsisted, or came to their knowledge by reason of the married relation. Where two or more parties are interested in a lease about expiring, one of them cannot take a new lease in his own name to the exclusion of the others. And if, after undertaking with the others to procure a renewal, he take it to himself, and attempt to retain it solely, it is a fraud upon his associates. P. conducted a refectory, owning three-fourths of the lease, fixtures, stock and movables; and S. owned the other fourth. B. and M. held mortgages on P.'s interest, which were deemed not quite secure; arrears of rent were due and a distress made. B. and M. in the absence of S., agreed with P. to pay the rent in arrear, if he would give them instant possession of the refectory, and that they would protect the interests of S., who was to refund to them one-fourth of the arrears. They received possession of the whole accordingly, and placed an agent in charge. S. on his return assented to what had been done. B. and M. did not pay the arrears, but suffered a sale therefor under the distress, at which they became the purchasers of the fixtures, stock and movables, and continued the business. The lease had nearly expired, and before the sale it had been arranged that B. should procure a new lease for the common benefit of S., B. and M. He obtained the renewal in his own name and claimed it as his own; and soon after he and M., separately, sold their respective interests in the whole concern, to K., and delivered to him possession of the whole, which he maintained, excluding S. In a suit by S. against B., M. and K.; Held, 1. That B. and M. were bound to account to S. for one-fourth of the profits from the time they took possession, till their sale to K., and for one-fourth of the price obtained for the refectory from him, and were entitled to credit for one-fourth of the rents paid by them upon the distress and subsequently. 2. That the new lease obtained by B., enured to the benefit of M. and S. 3. That P. was a competent witness for S., though he was originally to pay the rent as a part of the expenses of the refectory. 4. That K. was also a competent witness for S., his liability being secondary to that of B. and M., and all being liable, ex delicto. 5. That the statute of frauds has no application, either to the agreement to pay the arrears of rent, or to the interest which S. claimed in the renewed lease. April 10, 11, 12, and May 8; August 28th, 1845. THE bill was filed April 29th, 1843, by George P. Burrell as Burrell v. Bull. the trustee of the separate estate of Mrs. Louisa M. Stewart, and Mrs. Stewart by Burrell as her next friend, against Michael K. Burke, Marcus Bull, Henry S. McKean, W. Coventry H. Waddell the general assignee in bankruptcy, and J. Hopkins Stewart, the husband of Mrs. Stewart. The pleadings and proofs were voluminous; but it is deemed sufficient for understanding the legal propositions involved, to state in brief terms, the material facts as ascertained by the court upon deciding the cause. Burrell was the trustee of Mrs. Stewart in her marriage settlement, with ample powers of investment and disposal. Mr. Stewart had no interest in the separate estate, either present or contingeut. William Pine, on the 17th of September, 1841, being possessed of a lease from the executors of John T. Irving, of certain premises at the corner of Nassau and Pine streets, which at a considerable outlay for fixtures, furniture, &c., he had fitted up for a refectory on an extensive scale; sold and conveyed to Burrell as trustee, an undivided fourth part of the refectory with the lease, fixtures, stock, furniture, &c., receiving therefor $2000. From that time till December 10th, 1842, he conducted the refectory. for the account of himself and Burrell, being allowed one-eighth of the profits for defraying expenses, including the rent, which he agreed to pay; and Burrell received one-eighth of the profits, as the income on his investment. On the 10th of September, 1842, Pine mortgaged an undivided half of the premises, with the fixtures, &c., to McKean to secure $1900; and on the 1st of October ensuing, he gave a like mortgage of $2300 to Marcus Bull on his remaining one-fourth. On the 9th of December, 1842, the rent being largely in arrear, and distress warrants therefor having been issued against Pine, which if carried to a sale, would break up the refectory, destroy the good will of the concern, and by divesting the fixtures, greatly depreciate their value; Bull and McKean called on Pine, and in the absence of Burrell and his agent, induced Pine to put them in full possession of the refectory, on their agreeing to pay the rent in arrear, and subject to Burrell's right. Bull and McKean at once employed an agent to carry on the business, and Burrell v. Bull. on the 10th of December, Burrell's agent assented to their acts; it being provided that he should continue to receive one-fourth of the net profits, and should refund to them one-fourth of the arrears of rent. Instead of discharging the rent, Bull and McKean suffered the landlords to proceed to a sale on the distress warrant. All the stock, fixtures, &c., except the marble floor, were sold, and by previous arrangement between them, McKean bid off the property for his own and Bull's benefit. The latter paid $550, and McKean $300, to the officer making the sale. From that time they conducted the business, excluding Burrell from the same. They however offered to his agent, at or about the time of the sale, to allow him to participate, if he would pay his proportion by a day then fixed by them, which he did not comply with. Pine's lease terminated May 1, 1843, in anticipation of which, it was agreed between Bull, McKean and Burrell's agent, before the sale on the distress, that they should obtain a renewal of the lease for their joint benefit proportionate to their respective interests, and that Bull should negotiate therefor with Mr. Irving's executors. Bull negotiated accordingly, and obtained the executor's assent to terms by which the rent in the new lease would be $1000 a year less than in the current lease, and a reduction was to be made for the unexpired term of the latter. But on the excuse that he would not make himself responsible for the whole rent, (which was not communicated either to McKean or Burrell,) Bull made the arrangement for the renewal in his own name, and obtained from Irving's executors, a minute of its terms, on which he acted in his subsequent sale, claiming the whole interest in the new term. On the 23d of March, 1843, Bull sold all his interest in the lease, refectory, &c., together with the right to the renewal of the lease, to Burke for about $2400, and on the 28th of March, McKean sold to Burke his interest in the refectory, &c., and all appertaining, for about $2700. On the following day, Bull and McKean put Burke into the possession of the entire property, who continued therein until long after the old lease expired, and who obtained a renewal of the same under the agreement made by VOL. III. 3 |