Marsh v. Pike and others. debt. The equity of this principle is so manifest, that it requires no elucidation, and for the authorities in support of it, see 1 Story's Eq. 327; 2 ibid. 35, § 730, and 144, § 849; Warner v. Beardsley, 8 Wend. 194-per Chancellor.(a) Although the bill in this case sought for specific relief against Pike principally, yet the prayer is sufficient to warrant a decree against the other parties, on this principle of equity, and the facts fully justify such a decree. It was contended that there was no privity of contract between the complainant and Towle, and that he had no legal or equitable claim against Towle. The cases of Halsey v. Reed, and Curtis v. Tyler and Allen, (9 Paige's R. 446. 432,) show that Pike is entitled in this court, to recover any deficiency in his mortgage money, from Towle, as well as from M'Lean. And the complainant standing in the place of a surety as it respects M'Lean and Towle, is entitled, upon paying the mortgage to Pike, to be subrogated to all his remedies for the recovery of the amount. (Eddy v. Traver, (6 Paige's R. 581.) I think, therefore, that Towle comes within the doctrine upon which this court requires the principal debtor to discharge the obligation for the indemnity of the surety. He is the party who must ultimately pay the deficiency, if the premises are insufficient to pay the debt. There must be a decree against M'Lean and Towle for the amount due on the mortgage to Pike, and the costs of suit. The amout due is to be ascertained by a reference, and to be paid to Pike for the complainant's indemnity. If McLean is compelled to pay any part of the debt, he will be entitled to the benefit of the decree against Towle. The bill must be dismissed as to the defendant Pike, with costs.(b) (a) Ruled to the same effect in Call v. Scott, (4 Call's R. 202;) Newton v. Roberts, (4 Monro, 492.) (b) This decree was appealed from by Towle, and the decree affirmed by the chancellor, (10 Paige's R. 595.) Dickinson and Wife v. Codwise and others. DICKINSON and Wife v. CODWISE and others. A wife owned land on the East River, in the city of New-York, which the corporation of the city directed to be extended out into the river, in pursuance of the city charter and the laws of the state. Her husband caused the designated portion to be filled up, and the land was extended accordingly. The land thus regained from the river belongs to the wife. A conveyance of land to husband and wife jointly, vests them both with the entirety, and on the death of one the whole title survives to the other. Where a wife is seised of building lots which are separated from a street by a narrow gore of land, and the husband purchases such gore and takes a conveyance of it in his own name, he will de deemed in equity a trustee thereof for her benefit. Authorities cited in relation to purchases by parties placed in situations of confidence towards others, or towards the property purchased. A testator, ten or eleven years before his death, contracted verbally for land, entered into possession, and occupied it till his death. His executrix succeeded to the possession, and several years afterwards paid the purchase money and took a deed for the land in her own name. She was held to be a trustee for the heirs of the testator. Where the husband borrows money and secures it by a mortgage which his wife executes with him, on her lands, and he lays out the money in permanent buildings and improvements on such lands, she is not a surety for him in respect of the mortgage debt. One interested with the complainants in the fund in question was examined as a witness in their behalf, after he was decreed a bankrupt, and before he was discharged. It seems that he was not a competent witness. Oct. 9, 10, 1843; January 24, 1844. Charles Dickinson, Jr. and Anna Maria his wife, filed their bill on the 20th day of April, 1842, against Mary Codwise and others for the partition of ten stores and lots lying on Frontstreet, Burling Slip, and South-street, in the city of New-York; whereof, as the bill alleged, George Codwise, Jr., died seised in fee simple. Mary Codwise was his widow; and as the bill charged, had no estate in the premises, except her dower right, at the death of her husband. Mrs. Codwise by her answer, claimed that she was legally seised in fee in her own right of a great portion of the lands, and in equity absolutely entitled to the residue. Dickinson and Wife v. Codwise and others. Various persons were made defendants as the heirs of George Codwise, Jr., and as representing such of those heirs as were deceased. The material facts established by the pleadings and proofs were the following: The title was derived from five distinct sources. 1. The principal tract, being the nucleus of the whole, is a parcel of land extending from Front to South-streets, and separated from Burling Slip by the gore next mentioned. This tract is 37 feet and 9 inches wide in front and rear and throughout, and is 247 feet in length from Front to South-streets. It was designated by being colored yellow on the map made by J. F. Bridges, a surveyor, which was a part of the evidence. Mrs. Codwise was the daughter of John Byvanck, and with her sister, inherited from him the land opposite to this parcel on the northerly side of Front-street, and extending from thence northerly to Water-street, and such land as was then made south of Front-street. In a partition deed between her and her sister, Mrs. Youle, dated July 15, 1799, Mrs. Youle released to her in fee, so much of this parcel as was then in existence, describing it as being bounded north-westerly in front by Front-street, north-easterly by ground of George Bowne, in the rear by the river, and south-westerly by ground of John Riker, containing in breadth 37 feet and 9 inches, and in depth from Front-street into the river, the extent of the grant from the corporation of the city of New-York, with the right to all future grant from the corporation. When South-street was extended by the city authorities to a point above this property, a dock was erected, and the land covered with the water of the river, in front of the land described in this partition deed, was filled with earth by Mr. Codwise, pursuant to the laws and ordinances referred to in the opinion of the court; and the whole parcel in question was thus produced, extending from Front-street to South-street. On the 11th of July, 1803, the Mayor, Aldermen, and Commonalty of the City of New-York, executed a deed to George Codwise, Jr., and Mary his wife, which recited her right to a grant of the soil under water in the East River at the place Dickinson and Wife v. Codwise and others. where this tract was gained from the river, and that her husband had prayed in her right for such grant; and it thereupon conveyed and confirmed to them in fee, the water lot or piece of land under water, in front of and opposite to her land. This grant described the premises conveyed, as bounded northerly in front by Front-street, southerly by the new street, called Southstreet, easterly by a water lot granted, or to be granted, to George Bowne, and westerly by Burling Slip, containing in breadth 37 feet, and in length on Burling Slip, 247 feet. It reserved a small annual rent to the corporation, and Mr. Codwise covenanted to build a wharf or street at least 25 feet in breadth along the westerly side of the premises the whole length of 247 feet, and to build South-street 70 feet in width in front of the premises granted, and of the wharf of 25 feet. 2. The second tract is a gore along the easterly side of Burling Slip, extending from Front-street to South-street, which is five feet eight inches wide on Front-street, and eight inches wide on South-street. It was colored red on the map exhibited. This parcel was included by the monuments described in the deed from the corporation of the city last stated. In truth it was a part of the land reclaimed from the river by George Codwise, Jr., in pursuance of that grant, and he supposed that it became vested in himself and his wife thereby. In 1805, he built upon it as is presently detailed. On the 21st of February, 1812, the corporation of the city executed another deed in fee of this gore, to Mr. Codwise only, expressed to be in consideration of $718 85. 3. The third tract is a lot on South-street, adjoining the first parcel, and lying easterly of it, which is 24 feet wide in front, 24 feet in the rear, and extending back in depth from Southstreet 161 feet, 3 inches. This parcel was colored blue on the map exhibited. It was conveyed to George Codwise, Jr., in fee simple, by George Bowne, on the 25th of May, 1804. 4. The fourth parcel is situated in the interior of the block, directly in the rear of the third parcel, and also of the parcel next described. It was about 45 feet east and west, by about ten feet in width, and was colored green on the map exhibited. Dickinson and Wife v. Codwise and others. George Codwise Jr. took possession of this parcel when he erected the buildings on Burling Slip, under a parol agreement for its purchase from Robert H. Bowne. One of those buildings covers nearly half of the parcel. In January, 1823, R. H. Bowne presented an account to Mrs. Codwise as executrix of her husband, for the price of this land, $1000, and the interest on it from May 1, 1806; the whole amounting to $2166 66. She referred it to David Codwise Esq., her late husband's brother, who occasionally advised and assisted her in relation to the affairs of the estate, who examined into the subject, and was satisfied that the sum claimed was due. Mrs. Codwise thereupon paid it to Bowne, or satisfied him for the same, (it was not proved how much she paid,) and he conveyed the land to her individually in fee, by a deed which expressed a consideration of $1200. 5. The fifth and last parcel is situated on Front-street, easterly of and adjoining the first parcel. It was colored orange on the map exhibited. It is a gore of land, 11 feet wide on Frontstreet, ten feet three inches wide in the rear, and extending back 85 feet from Front-street. This parcel was conveyed to George Codwise Jr. in fee, by William Cooper, on the 29th of March, 1804. By adding these purchases to the original tract belonging to Mrs. Codwise, and filled in from the river, George Codwise Jr., became possessed of the whole premises in question, fronting 62 feet 5 inches on South-street, 245 feet on Burling Slip, and 54 feet 5 inches on Front-street. In or about the year 1805, he proceeded to improve the same, and erected thereon ten valuable brick stores, which covered the whole front on the three streets. Two stores fronted on Front-street, one of which extended about 75 feet in depth on Burling Slip; three stores fronted on South-street, one of which extended about 70 feet on the Slip; and the remaining five fronted on Burling Slip. The buildings were erected without any regard to the lines of the five parcels of land which constituted the ground plat. The corner store on Front-street covered a part of the first and second parcels, and the upper store on Front-street covered a part of the first parcel and all of the fifth, except about ten feet |