
    JOHN J. HERRICK AND ABRAHAM VAN BOSKIRCK v. ABIJAH MANN, JR., AND OTHERS.
    1. A gave a mortgage to B, and died, leaving a will, of which he appointed four executors. C, claiming the mortgage through an assignment by the executors to one of themselves, and an assignment by him, for his own purposes, to an assignee, in trust for a company, and an assignment by said trustee to C, filed a bill of foreclosure on the mortgage, and obtained a decree for sale. The property was sold by the sheriff, and bought by D, who paid the purchase money to the sheriff, and received a deed. Before the sheriff paid over the money, D filed a bill, stating that the alleged assignment by the executors of A, to one of themselves, was void ; that one of the said executors alleges that his name appearing to the said assignment is forged, and that the said mortgage is a part of the assets of the estate of A ; that the executors of A were not made parties to the foreclosure bill; that one of the said executors had given notice to the clerk of Hudson not to permit the cancellation of the said mortgage; and praying that the parties claiming the said mortgage and the proceeds thereof may interplead; and that the sheriff may be enjoined from paying the money to either of them, and may be ordered to pay it into court, to abide, &c.
    2. The orders prayed were allowed; and a motion, without answer, to vacate them, was denied.
    In February, 1836, John Bruce and Charles Bruce, of New York, gave their bond to James Ballagh, of New York, conditioned for the payment of $2000, in one year, with interest, and to secure the same, the said Bruces, with their wives, gave a mortgage to Ballagh, of the same date, on lot No, 8, Essex street, and lot No. 7, Morris street, in Jersey City, being the same premises which Ballagh had conveyed to them. Ballagh died in January, 1838, leaving a will, of which he appointed Hannahrietta C. Ballagh, executrix, and George D. Strong, William Ballagh, John S. McKibbin, and Oliver Woodruff, executors, all of whom proved the will.
    On this mortgage a bill of foreclosure was filed in 18 , by Abijah Mann, Jr., against the mortgagors and others, the executors of Ballagh not being made parties, stating that the executrix and executors of Ballagh, on the 6th September, 1838, in consideration of §2000 to them paid by the said George D. Strong, assigned the said bond and mortgage to the said George D. Strong, and that, on the same day, the said George D. Strong, in consideration of $2000 to him paid by Joseph D. Beers, president of the North American Trust and Banking Company, in trust for the said company, assigned the said bond and mortgage to the said Beers, to hold to him, his successors and assigns; that on the 1st of October, 1840, the said Beers, in consideration of §2000 to him paid by Thomas G. Talmage, president of the said Trust Company, assigned the said bond and mortgage to the said Talmage, to hold to him, his successors and assigns ; and that said Talmage, on the 15th December, 1840, in consideration of §2000 to him paid by Henry Yates, Thomas G. Talmage and William C. Noyes, trustees, assigned the said bond and mortgage to them, to hold to them and the survivor of them; and that, on the 1st of June, 1844, the said Yates, Talmage and Noyes, in consideration of §2000 to them paid by the said Abijah Mann, Jr., assigned the said bond and mortgage to him, the said Abijah, his heirs and assigns, for his and their benefit forever.
    On this bill a decree was made for the sale of the property to satisfy the mortgage, and lot No. 8 sold by the sheriff, on an execution issued on the decree, and John J. Herrick and Abraham Van Boskirck became the purchasers thereof, at §3300, and paid the purchase money to the sheriff and received from him a, deed for the property.
    Herrick and Van Boskirck then filed their bill, staling that they have been informed that the said sheriff has not paid over to the said Abijah Mann, Jr., or to his solicitor, all the moneys paid by them to him on,account of the purchase of the said lot, but retains in his hands a large portion thereof; that since the said sheriff delivered to them the deed for the said lot, they have been informed that the said Abijah Mann, Jr., has now no authority to receive the money due on the said decree for the sale of the said mortgaged premises, for which he filed his said bill; that at the time the said Mann filed his said bill, he acted as the special receiver under an assignment from Yates, Talmage and Noyes, trustees of the North American Trust Co.; and that these complainants have been informed that, at the time of the said sale made by the sheriff, the said Mann had no-power or authority, under the said assignment, to receive the said money, but that the power of the said Mann under the said assignment, at the time of the said sale, had been annulled by some court in New York, the complainants understood the Vice Chancellor’s Court.
    That since receiving the said sheriff’s deed, these complainants have been informed that the said executrix, and the said executors, Ballagh, McKibbins and Woodruff, or some of them, deny their right as such executrix and executors to assign the said bond and mortgage to the said Strong, a co-executor; and that the said assignment is void in law; and that the said executrix and executors are entitled to the said bond and mortgage as part of the assets of the estate of said James Ballagh, deceased.
    And these complainants further state, that since receiving the said sheriff’s deed, and on or about February 25th, 1847, the said Oliver Woodruff, executor as aforesaid, stated to the complainant Van Boskirck, that he, the said Woodruff, never executed, as one of the said executors, any such assignment as stated in the bill of the said Mann, to the said Strong, of the said bond and mortgage, and that his signature to the said assignment was a forgery; and the said Woodruff denied that the said Mann could derive any title to the said bond and mortgage by or through the said assignment; that these complainants have been informed that the said executrix and executors of James Ballagh, deceased, except Strong, have given notice to the clerk of Hudson not to cancel the said mortgage, and have threatened to dispute the title of these complainants under the said sheriff’s deed, and have given notice to the said sheriff not to pay over to the said Mann, or his solicitor, the said consideration money of the said sale.
    That these complainants have been informed that the said consideration money remains in the hands of the said sheriff, except a portion thereof, how much the complainants are not particulariy informed, which has been paid by the said sheriff to the solicitor of said Mann.
    The complainants then state, in the bill, that they hoped that said Mann and the said executrix, and the said executors, Ballagh, McKibbin, and Woodruff, would have adjusted, between them, their differences respecting the question to whom the said money in the hands of the said sheriff belongs, and would not have disturb -d the title of the complainants to the said premises under the said sheriff’s deed, but that the said executrix and the said three executors above named, on the one hand, and the said Mann, on the other, claim the said money in the hands of the said sheriff and of the solicitor of the said Mann, and that the complainants, under the circumstances, are in danger of being harassed on account of the said money, and on account of the title to the said premises.
    The bill prays that the defendants may answer, and that the said executrix and executors, including Strong, and the said Maun may set forth to whom the said money is due and payable, and may be decreed to interplead and adjust their several claims between themselves; that the said money may be paid into court, till the said claims are adjusted, and that the.said sheriff and the said solicitor of Mann may be enjoined from paying to the said Mann, or to the said executrix and executors, the said money, till the further order of this court • that the said sale to the complainants may be confirmed, or, if it be more agreeable to equity, that the said sale may be set aside, and the said purchase money refunded to the complainants.
    An injunction and an order directing the sheriff to pay the money into court, were allowed.
    A motion was made, without answer to the bill, to dissolve the injunction and vacate the order.
    D. A. Hayes, for the motion, cited 3 Daniell’s Ch. Pl. and Pr. 1753, note 1; Mitf. Pl. 49, note 141.
    
      I. W. Scudder and J. D. Miller, contra.
    
   The ChanceiJjOR.

Let the order and injunction stand until the answers of Strong and Mann come in.

Motion denied.  