Thorp and others, Executors, &c., v. Amos and others.

in this case. The executors, having traced the funds into the hands of these parties, are entitled to a decree against them for the repayment of the same. Mrs. Thorp, one of the children, was made a complainant. Her interest in the alleged gift is wholly adverse to that of the executors, and she has had no opportunity to claim or contest her rights. There can be no decree against her in this suit, and the decree must provide leave for the executors, (or Mrs. Thompson and Van Beuren, on their paying Mrs. Thorp's share of the delinquent fund to the executors,) to prosecute Mrs. Thorp in this behalf, if they shall be so advised. Van Beuren and Mrs. Thompson will, in this suit, be subjected in the first instance to the payment of the $2220, received by Mrs. Thorp, and the complainant Thorp, being jointly liable with his wife for the amount, will also be declared liable here.

The executors cannot recover interest on this fund during the lifetime of the widow of the testator, she being entitled to the whole income, and having released and transferred it to her children. It was stated at the hearing, that she died a few weeks previous to the argument. From the time of her death. the parties, liable to refund, ought in strictness to pay interest. It was not claimed at the hearing, and the decree therefore will not direct the payment of interest prior to its entry. As to costs. The costs of the complainants and of the grand-children, may be paid by the executors out of the fund provided in the will for the payment of expenses.

The decree will declare that Van Beuren and Mrs. Thompson are liable to the executors for the whole sum of $19,980, with interest, from the entry of the deceased. That George B. Thorp, Richard Amos junior, Mrs. Van Beuren, Mrs. Hooker, Quackenboss and wife, W. R. Miller and wife, Willoughby and wife, and Samuel Amos, are severally liable for the $2220 received by them respectively, with interest, from the entry of the decree. In case the whole or any part of these several amounts shall be collected of the parties last mentioned, Van Beuren and Mrs. Thompson are to be exonerated, pro tanto ; and if they are compelled to pay any sum in respect of the amounts, which, as between them and the other parties, ought

Russell v. Kinney and others.

to be paid by the latter, they are to be subrogated to the complainant's remedy for such sum. As a general rule, equity will not interfere to enforce a contribution between wrong-doers. Peck v. Ellis, (2 J. C. R. 131;) Dupuy v. Johnson, (1 Bibb, 562.) But I deem this case more analogous to actions of trover and actions on the case against common carriers, and similar instances of quasi torts, than to cases of fraud or moral turpitude. I do not feel free from doubt on the subject, although I conclude that it will be most equitable to direct the contribution.

I do not perceive any mode, by which the amount due to the complainants, can be declared to be a lien on the life interests of the children under the will of Richard Amos. The complainants must pursue the usual course for enforcing decrees of this court.

(A decree was entered accordingly, which directed the fund to be paid to Morris and Reeve, the two executors, who had not shared in the distribution of the alleged donation.)

RUSSELL v. KINNEY and others.

The complainant set forth a bond and mortgage, conditioned for the payment of money absolutely, and stated that a part of the consideration was to be paid by him in stone, after the date of the mortgage, and that it was so paid. On failing to prove this statement, he may still rely upon the evidence of a paid consideration furnished by the mortgage itself.

Parol evidence is not admissible to show, that such a bond and mortgage were not to be paid, unless the mortgagee, and two other persons, to whom he furnished materials, fulfilled a contract of the latter for executing the stone work of certain houses, which the mortgagor was erecting; there being no fraud or mistake, surprise or accident, in the case.

The grantee of the equity of redemption took a conveyance subject to the mortgage.

Held, that she was not thereby precluded from availing herself of any valid defeasance of the mortgage, or showing that the debt was partly paid.

April 18, 19; June 15, 1843.

Russell v. Kinney and others.

THE bill in this cause was filed to foreclose a mortgage, for $1500, executed by Henry A. Burr to the complainant, on the 1st day of November, 1837, accompanied by a bond executed by Burr, with Whitehead & Turner. The mortgaged premises were conveyed by Burr to G. M. Sloat, subject to the mortgage; by Sloat they were conveyed to the defendant Van Hook, and by the latter to the defendant Kinney.

The mortgage grew out of the operations of Elisha Bloomer, who, in August, 1837, contracted in the name of Burr, by a writing under seal, with Whitehead & Turner, for the dressed free stone requisite for the erection of six houses on the Third Avenue; one on the lot in question, and five on adjoining lots. W. & T. were to receive $2400 for the whole job, of which $350 was to be paid when the water table was on, and $300 when the brick-work was up and inclosed. At the same time, they had a contract with Bloomer, (also in Burr's name,) for two houses which he was building in East Broadway. The complainant's firm, Russell & Hall, owned a free stone quarry at Chatham, Conn., and supplied W. & T. with the rough stone. In June, 1837, they had shipped stone of the value of $313 73, and in August of the value of $181 89, to Whitehead & Turner. On the 12th of October, they shipped a further supply, amounting to $598 02; and making the aggregate to that time, $1093 64.

The complainant then refused to furnish any more stone, unless he was paid or secured; and, a short time before the mortgage was given, came to New-York to obtain payment of his demand, or to advise with W. & T. on that subject. The six buildings had been commenced, and an instalment was due to W. & T. on their contract, which they were unable to obtain from Burr or Bloomer. Bloomer was notoriously insolvent, and Burr not considered as much better. Whitehead & Turner's reputation for solvency was not very good. At this period Burr executed the mortgage; and so far the facts were clearly ascertained.

It was claimed by the defandants, that the sole consideration of the mortgage was an agreement on the part of the complainant, to furnish to Whitehead & Turner, sufficient rough stone

Russell v. Kinney and others.

to complete the six buildings, and the further agreement of the complainant, that Burr was not to be liable to pay any part of the mortgage, until W. & T. fulfilled their contract. The defendants then allege, that W. & T. never completed their contract, and that other mechanics were employed to finish their job, at an expense exceeding the whole price agreed to be paid to W. & T. By the agreement, as set up in the answer, the $1500 in the mortgage, was to apply as a payment towards the $2400 on the contract of Burr with W. & T. This agreement, it was alleged, was in writing, and executed by Russell; but it was insisted, that if the agreement were by parol, it was equally valid to defeat the mortgage.

The defendants went into proof to show the existence of a written agreement to the same effect, and its loss; as well as to establish by parol evidence the agreement set up in the answer.

The complainant proved the delivery of a further quantity of stone to Whitehead & Turner in November; and the whole amount which was delivered exceeded $1700.

J. T. Brady, for the complainant,

F. S. Kinney and George Wood, for the defendants.

THE ASSISTANT VICE-CHANCELLOR.-The complainant establishes his right to a decree, in the first instance, by the production of a mortgage for the payment of $1500, with interest, in one year from its date, duly acknowledged and recorded. The statement in his bill of a particular mode of paying the consideration, for which the mortgage was given, does not deprive him of the benefit of the prima facie evidence of a paid consideration, furnished by the mortgage itself. If the statement be proved, it is very well. If not, then the admission of a consideration in the mortgage, is evidence that there was a consideration paid in some manner. The defendants cannot be permitted to estop the complainant by his statement, and at the same time deny the truth of the statement itself. The burthen of invalidating this security, therefore, rests upon the defendants.

Russell v. Kinney and others.

In attempting to show its invalidity, they claim that the agreement, set up in their answer, if made by parol, constitutes a sufficient defence.

To this proposition I cannot assent. It is true that our courts have proceeded far beyond the courts of any other state or country in which the common law prevails, in the admission of parol evidence to invalidate contracts in writing and under seal; but I believe they have never gone as far as is insisted upon here, and it is not for me to extend the dangerous innovation. The admission of such evidence to the extent now established, has been deprecated and opposed by several of our learned judges; and in the last reported case at law to which I have been referred, one of the ablest judges that ever adorned our bench, dissented from the opinion of his brethren; while the latter avowedly acted upon prior adjudications, against their own convictions of the impropriety of the evidence. Swart v. Service, (21 Wend. 36.)

The authorities are, to my mind, conclusive against the admission of parol evidence of the agreement or condition set up in this case.

In Mease v. Mease, (Cowp. 47,) in an action on a bond for the payment of money, a plea setting up that the bond was given. as an indemnity to the plaintiff's testator against another bond, and that he had not been damnified, was held to be clearly bad.

In Wells v. Baldwin, (18 Johns. 45,) which was an action on a similar bond, the defendant plea ded that the bond together with a mortgage, were given as collateral security for the performance of a contract for clearing land, which contract provided for an arbitration between the parties in the case of a difference, that the arbitration had been held, and an award made finding that the plaintiff had not performed the contract. The plea was held to be bad.

In Jackson d. Dox v. Jackson, (5 Cowen, 173,) in ejectment by a mortgagee, it was held, that the heir of the mortgagor could not be permitted to prove that the mortgage was given as an indemnity for becoming special bail for the mortgagor, and that no damage had ensued to such bail. And see Patchin v.