Bogardus agt. Parker and others.

payments made to him and moneys received and paid out by him as agent or as executor, or otherwise, that would be no objection to its being done in the partition suit, because the lien is to be paid, and that involves the question of the amount of the lien. Because a variety of questions and some of them very complicated, may arise in ascertaining the amount due on any lien in a partition suit, it does not make it more improper to make the holder of that lien a party, than if the amount could be ascertained simply by the endorsements on the bond; nor does the examination of a long account of receipts and expenditures of one acting as executor, and which is necessary for ascertaining the single fact of the extent of that lien, make it more improper to make such a one a party as a lien holder than if the amount due on such lien could be ascertained by an examination of a bond and receipt only. These inquiries are all incidents to the one cause of action, the ownership of lands in common, and to the right to have that land sold free from incumbrances, and to have the incumbrancers made parties to effect this purpose.

It is unnecessary to say whether the creditors at large would have any lien on the proceeds of sale, or whether this court would allow the proceeds to be distributed without protecting their rights and so protecting the purchasers from them (see 1 Edward's Ch. R., Mathews vs. Mathews), for here the widow. claims not as a creditor at large, but as having a right to stand in the place of those whom she paid and who hold liens by mortgages and for taxes and assessments; all specific liens on the estate.

She claims the right to be subrogated in the place of those who once held these liens, and that she is now entitled to the same liens: she is a necessary party as a dowress, and when she comes to set forth the full grounds of her claims, as she will be entitled to do and as the plaintiff is not bound to do, she may show not only that the debt is justly due to her, but that she is to be subrogated to the rights of the former lien holders. That can be done on the reference as to title and liens by special instructions to the referee.

The plaintiff has an interest in having all liens on the estate discharged; she or her estate is liable for a proportional part

Smedes agt. Wild.

of the debts of the estate, and she has a right to have it ascertained in this action what is the amount of all or any of those debts, so far as they may affect any of those lands or herself as an owner of them. For this reason, although not a creditor herself, she is interested in having these creditors paid, and in having it determined how much each of the defendants, as well as herself, should pay of the debts; and for that purpose she need not now bring in the creditors; but must bring in the heirs at law.

The demurrer is to the whole complaint; in that it is clearly too broad; it must be overruled with costs to abide the event.

SUPREME COURT.

SMEDES agt. WILD.

An agreement declared void, for indefiniteness, uncertainty and gross inadequacy of consideration.

Interest allowed on the loan of money, where a chattel mortgage given to secure its repayment was silent as to interest.

New York Special Term, November 1852. The defendant loaned the plaintiff $100, to enable her in part to purchase the furniture of a boarding house, taking a chattel mortgage on the whole, valued at about $300, as security. Nothing was said about the payment of interest; but another agreement drawn up by the defendant, was executed in the following words:

"Know all men by these presents, that whereas the undersigned, John Wild, is about to lend to Matilda C. Smedes, also undersigned, the amount of one hundred dollars, to enable her to purchase out a certain boarding house at No. 41 Forsyth street, in the city of New York; and whereas in consideration thereof the said Matilda C. Smedes hereby covenants and agrees that the said John Wild shall receive out of the profits of said boarding house one clear half of the same, payable at such times as shall be hereafter agreed between the parties hereto.

In witness, etc. etc. Signed by the parties, with their seals affixed.

Smedes agt. Wild.

Proceedings to sell under the mortgage having been instituted, the plaintiff asks for an injunction to stay them.

-, for Plaintiff.

-, for Defendant.

ROOSEVELT, Justice.-There is no sufficient averment in the complaint to raise the question of usury. To warrant a demand for relief on that ground, a case must first be made. Besides, the mortgage contains no stipulation for the payment of interest, whether more or less than the legal rate. It merely provides for the repayment of the principal. From the collateral agreement, however, executed about the same time, it would seem that the lender was to be compensated (instead of interest) by a participation in the profits of the boarding house, to the extent of one clear half. In other words, in lieu of one dollar and seventy-five cents, which would have been the lawful interest, he was to have an indefinite compensation, depending on the success of the establishment; but he was to bear no losses, and to have his principal returned at all events, undiminished, in one, two, three, four and five months, by equal installments of $20. And how were these profits to be determined-how much was to be allowed for the plaintiff's services-when were the accounts to be adjusted-how long was the arrangement to continue? On all these points the agreement is silent. It merely provides that the one half of the profits is to be payable to the defendant "at such times as shall be hereafter agreed between the parties."

But suppose no time can be agreed upon-and none has been, or is likely to be-what then becomes of the arrangement? The defendant, as between him and the plaintiff, is not a partner, and has no control over the house; and the plaintiff, for aught that appears, may stop the house, and of course stop the profits, whenever she pleases. Such an agreement is clearly void.

It is void for its palpable indefiniteness and uncertainty, to say nothing of its gross inadequacy. The latter objection, however, is too prominent to be overlooked. How could a court, exercising equity as well as common law powers, give effect to a contract between a business man and an inexperienced woman, requiring the latter, at her own expense and risk, and with

Davis agt. Garr.

her own care and labor, to fit up and conduct a boarding house establishment, for an indefinite period, and to pay one half of the profits to the former, as an equivalent for the use of one hundred dollars for the average period of three months?

The defendant, however, is entitled to his money actually loaned, and to the benefit of the mortgage security on the furniture, if he consents to relinquish the oppressive collateral agreement. Equity also seems to require the payment of interest, if other profits are denied.

An order will, therefore, be entered continuing the injunction, unless the defendant consents to accept that amount, to be paid within thirty days, and to cancel the collateral agreement.

SUPREME COURT.

DAVIS, &c. agt. GARR adm'r, &c. of MITCHELL.

On a sale of lands, the terms were that promissory notes should be given by the purchaser; the vendor was not to give a deed until the notes were paid, and if any of the notes were unpaid at maturity, the vendor should, on due notice (as specified) resell the lots at the risk of the purchaser. Held, that the arrangement was in the nature of a mortgage for purchase money, and the purchaser was responsible for the deficiency after allowing what the lands produced on the resale.

Leave to amend for the purpose of setting up such resale as a bar, refused.

New York Special Term, May 1852. Motion to amend. An action was commenced in the Superior Court in September 1845, against the defendant, as administrator, on three notes made by the intestate on 24th April 1837.

The defendant put in a variety of pleas, among others the statute of limitations, a set off in favor of the intestate, and that the plaintiffs who were described as trustees had ceased to be

trustees.

An issue of fact was joined as to the set off, and the other pleas ended in demurrers, which were found in favor of the plaintiffs. A reference was ordered by consent in February 1846,

Davis agt. Garr.

as to the issue of fact, and to assess the damages of the plaintiffs; the referee reported in that year in favor of the plaintiffs for the sum of $16,843-93, on which judgment was entered in January term, 1847. The defendant appealed to the Supreme Court and from there to the Court of Appeals, and the judgment was affirmed in both courts.

-, for Plaintiffs.

-, for Defendant.

MITCHELL, Justice.-The defendant now says that after judgment was given in favor of the plaintiffs on the demurrers, he first discovered that the lands, for the purchase of which the notes were given, were sold by the plaintiffs and bought in by the

company.

The judgment to which he refers, was given in February 1846, and after that, he consented to a reference, and on the reference the amount which the lands brought on the resale were credited to the defendant, so as to reduce just so much the account against him. Knowing the sale, he chose not to apply to the Superior Court for leave to put in a plea of that resale, nor to seek any relief in that court on that account; but to allow judgment to be entered against him in that court, and then try his chance in the Supreme Court and Court of Appeals, to reverse that judgment. He now asks to open all the pleadings and allow him to plead anew. It is too late, and he has delayed too long in his application to be allowed so extraordinary a favor.

From the facts stated, it would seem most like y tnat the defendant concluded that the facts which he would now introduce would constitute no defence, and therefore would not trust his defence to them; and in that he was apparently correct.

The terms of sale were that if he failed to pay any of the notes, the plaintiffs should be at liberty on giving thirty days notice in a public gazette in Apalachicola, to sell the lots bought by him at his risk for the benefit of the company, of which the plaintiffs were trustees; the company were not to give deeds for the lands until the notes should be paid. In 1842, the notes not being paid, the trustees sold the lots pursuant to the terms of sale.

The arrangement was in the nature of a mortgage for purchase