
    Tompkins v. Anthon, impleaded with Ward and others.
    June, 27th ;
    Sept. 2d, 1846.
    Where a defendant pleads that he is a bona fide purchaser of a part of the premises in question, in bar of a bill seeking to set aside a conveyance to his remote grantor, on the ground of fraud and breach of trust, and charging that parts or portions of the premises are claimed by such defendant, but without describing them ; the plea must aver that he claims no right or title to or in any other portion of the premises, except that described in and covered by the plea.
    Upon a replication to a plea, nothing is in issue except what is distinctly averred in the plea; and if it be established by the proofs, it is a bar to so much of the bill as it professes to cover, whether the matter pleaded be applicable to the same or not.
    Where the bill waives an answer on oath, a plea of bona fide purchaser, &c., need not be accompanied by an answer denying the matters charged by way of notice.
    Such a plea should aver that the defendant’s grantor was in the actual possession ; but where the bill charged that W. had possessed the premises claiming them in fee, from long anterior to the defendant’s purchase until the commencement of the suit, and that the latter and also one H. claimed under W.; and the plea averred a purchase from H who was, or pretended to be seised and actually-possessed ; it was held to show sufficient color of title in the defendant’s grantor.
    
      The bill in this cause was filed by Rny Tompkins, in November, 1845, against Caleb T. Ward, Thomas Hulme, Isaac Pierson, Ichabod Prall, George Howard, Benjamin Wood. John Antbon, and several others, together with the heirs of the late Governor Tompkins.
    It set forth, in substance,
      
       and principally on information and belief, that Daniel D. Tompkins, late of Castleton, in the county of Richmond, and state of New York, now deceased, the father of the complainant, on the fifteenth day of January, 1822, was, and for a long time previous thereto had been, seised in fee simple, in his own right, or otherwise well entitled unto, a large and valuable real estate, situate in the county of Richmond, and elsewhere in the state of New York; and also well entitled to, and possessed of divers stocks, demands, sums of money, dioses in action, and other personal estate, amounting in value in the whole to a large sum of money. That on or about the day and year last mentioned, being so seised and possessed, or otherwise well entitled, he, together with Hannah his wife, by a certain indenture or deed of assignment, duly made and executed between them as parties thereto of the first part, and Isaac Pierson, Samuel Tooker, Edmund Smith, Ichabod Prall, Caleb T. Ward, and Thomas Hulme, as parties thereto of the second part, did grant, bargain, sell, convey and assign, to Isaac Pierson, Samuel Tooker, Edmund Smith, Ichabod Prall, Caleb T. Ward and Thomas Hulme, such real and personal estate, upon certain trusts in the indenture or deed of assignment particularly mentioned, declared and expressed ; which indenture or deed of assignment was duly acknowledged by Daniel D. Tompkins and his wife, and was recorded in the office of the register for the city and county of New York, on or about the twenty-seventh day of February, 1822, in liber number 159 of Conveyances at page eight.
    The bill then set forth the indenture or deed of assignment at full length; by which, among other things, the parties of the first part, in consideration of the trusts and agreements therein-after expressed and contained, and for the further consideration of one dollar, granted, bargained and sold, assigned, transferred and set over, unto the parties of the second part, the survivors and survivor of them, their and his heirs, executors and administrators, all and singular, the lands, tenements, and real estate of which Governor Tompkins was seised, possessed, or in anywise entitled to, in the state of New York, or elsewhere, also all and singular, the stock, debts, sum and sums of money, choses in action, and other personal estate, in a certain schedule thereunto annexed, marked A, mentioned, described, or therein intended to be included, and all the right, title, dower, and right of dower, interest, possession, claim and demand of them the parlies of the first part, of, in and to the same, with the appurtenances ; to have and to hold the premises thereby granted and assigned, or intended so to be, unto the parties of the second part, the survivors and survivor of them, their and his heirs, executors, administrators and assigns forever, subject, nevertheless, to all prior liens, judgments, mortgages and incumbrances thereon But in trust, nevertheless, and to the uses and for the purposes therein, after declared of, and concerning the same, that is to say, in trust, to grant, bargain, sell, and dispose, of all and singular, the real estate, and of such parts of the personal estate as might be capable of sale, and to collect, receive and get in the outstanding debts and demands assigned, and convert the premises into money, and then, in the next place, in trust, after first satisfying all costs, expenses and outgoings attending the execution of the trust, and reimbursing themselves, any moneys which they might have expended for the security and benefit of the trust property ; in the first place, to retain and satisfy to them, the parties of the second part, respectively, the debts or demands, due to them respectively, from Daniel D. Tompkins; then, in the next place, to pay to the Richmond Turnpike Company, or otherwise apply so much and such sums as that company had already paid, or as might be necessary to disencumber the property and estate which Daniel D. Tompkins had theretofore purchased or procured, or otherwise appropriated, for the use of the Richmond Turnpike Company, or more fully to vest in the company the title thereto ; and in the next place to pay, satisfy and discharge, as far as the residue of the trust funds should extend, the other debts and demands, due to the several other creditors of Daniel D. Tompkins, and in case of any overplus, to re-convey, re-assign, transfer and deliver over the same to him, his heirs, executors, administrators or assigns. Provided always, and it was thereby expressly declared, notwithstanding any thing therein before contained, that it should and might be lawful to and for the trustees, or the major part of them, for the time being, to make any such arrangements as they might deem most beneficial for the settlement and extinguishment, in whole or in part, of the debts and demands, or any of them against Daniel D. 'romp-kins, and for that purpose to grant, convey or assign, any part of the assigned premises, to such creditor or creditors; also, to make any arrangements or agreements, and concur in any sales or transfers of the assigned premises, with any creditor or creditors, having prior lien or liens thereon, or to release any equity of redemption, or other equitable interest therein ; and in general to settle, compound and agree with all, or any of the creditors, as they should deem most expedient. And, in the mean time, to let or demise the assigned premises, and collect the rents, and receive the dividends, income or profits accruing thereon.
    And further, that as far as any of the trustees held any specific or other liens or securities for their respective debts or demands prior to and independent of the assignment, nothing therein contained should be deemed or construed in any wise to impair or affect the same, or interfere with or embarrass any legal remedy for the enforcing or obtaining the benefit thereof, but on the contrary, it was thereby expressly declared to be the true intent and meaning of the parties, and it was thereby expressly declared and agreed, that each and every of the trustees who then held or was entitled to any lien, judgment, decree, mortgage, or other security whatever, for any debt or demand due to such trustee from Daniel D. Tompkins, should continue to be entitled to the same, and all benefit by means thereof, and might proceed in law or equity, or otherwise, to avail himself thereof, or obtain the benefit and advantage thereof, in the same, manner, and with like effect to all intents and purposes, as if those presents had not been made.
    The assignment contained provisions for the employment of agents, and authority to use the name of the assignor, &c. It was acknowledged by Governor Tompkins and his wife, February 20th, 1822.
    The schedule A, referred to in the assignment, contained a list or inventory of the stock, debts and personal property in the assignment referred to, and thereby intended to be assigned, amounting nominally, to several thousand dollars.
    The bill further stated, that the indenture, or deed of assignment, was at the time of its execution, duly delivered into the hands of the parties thereto of the second part, and still remained in the hands and custody, or in the power, of some or one of them. That upon and by such execution and delivery of the deed of assignment, Isaac Pierson, Samuel Tooker, Edmund Smith, Ichabod Prall, Caleb T. Ward and Thomas Hulme, became and were seised, and possessed of the real and personal estate, in the assignment mentioned, or referred to, or intended to be granted, bargained, sold, assigned, transferred or set over, to and for the uses and purposes, and upon the trusts in the same assignment, mentioned or declared ; and further, that they then accepted of the assignment, and took upon themselves the execution of the trusts, therein mentioned, declared or intended, and then cr shortly thereafter, actually entered upon the performance of their duties as trustees, under the same indenture, or deed of assignment.
    That at the time of the execution and delivery of the assignment, Daniel D. Tompkins, amongst other estate, real and personal, was seised in fee simple, of his own right, or otherwise well entitled unto, and in the actual occupation and possession of all and singular, the lands, tenements, hereditaments and real estate, situate, lying and being at Castleton, in the county of Richmond, and state of New York, following, that is to say, all those certain messuages, dwelling-houses, lands and premises, situate in Castleton, in the county of Richmond, and state of New York, bounded as follows: (a particular description then followed;) containing by estimation, two hundred and fifty acres, be the same more or less.
    That by means of the execution and delivery of the assignment, all the lands and premises at Castleton, last above described, were by the operation of the assignment, conveyed to the grantees^therein, as assignees or trustees, for the purposes therein mentioned.
    That prior to, and at the time of the execution and delivery of the indenture or deed of assignment, Daniel D. Tompkins was indebted to Thomas Hulme, on a general running account of mutual dealings, in a large and considerable balance, amounting to several thousand dollars, and that as security for the payment and satisfaction of such indebtedness, Hulme then held, or claimed to hold, divers collateral securities, assigned, transferred or delivered to him, by Tompkins, or by other parties or corporations, for and on his behalf: and that among such collateral securities, there was his bond to Hulme, conditioned for the payment of twenty-five thousand dollars, with interest, bearing date on or about, the twenty-sixth day of September, 1817, and also an indenture of mortgage, bearing even date with the bond, and executed by Daniel D. Tompkins, and Hannah his wife, whereby they mortgaged in fee, to Hulme, the lands and premises at Castleton, above described, to secure the payment of the bond, or of the sum of $25,000 and the interest thereon.
    That after Isaac Pierson, Samuel Tooker, Edmund Smith, Ichabod Prall, Caleb T. Ward and Thomas Hulme had duly accepted of the trusts, and entered upon the discharge of their duties as trustees or assignees, under the indenture or deed of assignment, and sometime in or about the month of April, in the year 1822, a decree for the sale of those mortgaged premises, was obtained in the court of chancery of the state of New York, in a suit commenced in that court long previously to the execution of the assignment, by Hulme as sole complainant, against Daniel D. Tompkins and Hannah his wife, The American Insurance Company of New York, Peter Jay Munro, and The Rector, Church Wardens and Vestrymen of St. Andrews Church in the county of Richmond, as the only defendants ; which suit purported to be founded upon the bond and mortgage so held by Hulme, and to be prosecuted for the purpose of foreclosing the equity of redemption in such mortgage, and obtaining a sale of the mortgaged premises, for the satisfaction of the moneys due or to grow due upon the bond. That none of the parties of the second part to the indenture or deed of assignment, except Thomas Hulme, were ever made parties to the foreclosure suit, in the court of chancery, nor was any alteration made in the form or frame of, or parties to such suit, in consequence of the assignment, and that the same suit was proceeded in, and such decree of sale taken therein, without opposition from the defendants in that suit; which decree was in the usual form of decrees of sale in foreclosure cases.
    That in or about the month of May, 1822, the lands and premises at Castleton, above described, were sold, apparently pursuant to the terms of such decree, under the direction of Thomas Bolton, then one of the masters in chancery, and were bid in by Hulme, for the sum of two thousand seven hundred dollars. That a master’s deed was executed by Thomas Bolton, as such master, purporting to convey those lands and mortgaged premises to Hulme, in consideration of his bid of twenty-seven hundred dollars, which master’s deed was dated the twentieth day of May, 1822, and which was set out at large, in the bill of complaint.
    That Thomas Hulme stated, or at the time he so obtained the decree of sale, and at all times thereafter, until and at the time of his conveyance of the land and premises at Castleton to Caleb T. Ward, as after mentioned, he, Thomas Hulme, actually and truly intended to take and hold any right, title or interest which he might acquire, or had acquired in the lands and premises at Castleton, by or under the decree, sale, and master’s deed, or any of them, merely as a security for the payment unto himself, of such balance as might be due to him, from Daniel D. Tompkins, or his estate, upon the account before mentioned, and to allow such right, title, or interest to be redeemed against, and extinguished by Daniel 1). Tompkins, his heirs or his assignees, on payment of such balance, in like manner as the same lands and premises might have been redeemed from the lieu and operation of the mortgage before the decree of sale, upon payment of the moneys due upon the mortgage and costs, or otherwise.
    That Thomas Hulme frequently, before his bid, at the time thereof, and afterwards, expressly and solemnly declared to Daniel D. Tompkins, and to others, that such was his intention ; and assured Tompkins, that the whole benefit and advantage of the bid and purchase of him, Thomas, Hulme, should enure to the use of the trust estate, created by the deed of assignment, and to the consequent benefit of Daniel D. Tompkins, his heirs and assigns, after the payment of the debts intended to be provided for by such indenture or deed of assignment.
    That Thomas Hulme, at or about the time of such bidding off of the mortgaged premises by him, did, by some proper instrument in writing, being a declaration of trusty subscribed by him, and delivered by him to Daniel D. Tompkins in due form of law, acknowledge, testify, and declare, that by virtue of a trust and confidence between him and Daniel D. Tompkins, he held and would hold all such right, title and interest as he, Hulme, had acquired, or might acquire by such decree, bid and master’s deed, to the use and intent above, in that behalf specified ; which declaration of trust is not, nor is any copy thereof in the complainant’s possession or power, nor is he able to ascertain where or in whose possession or custody the same now is ; but he has good reason to believe, and does believe, and therefore charges that the same is in the possession or power of the defendants after mentioned, or some or one of them.
    That Thomas Hulme, from the bid, to the time of his conveyance to Caleb T. Ward, frequently represented and stated, that in bidding in the mortgaged premises, he had no other design, than as above in substance stated, and that upon the payment of the indebtedness of Daniel D. Tompkins to him, he would release or otherwise discharge his lien upon the mortgaged premises, in favor of or for the benefit of the trust estate. That on or about the first day of July, 1824, Daniel D. Tompkins and Thomas Hulme accounted together of and concerning their mutual dealings, and on that occasion the demand of Hulme against Tompkins was adjusted and stated, as of that date, by and between them, in such a manner, as that they both acquiesced therein, as to the amount of the indebtedness of Tompkins to Hulme, as then stated; and that in stating such account Tompkins was charged with all the moneys secured or intended to be, by the bond, mortgage, and decree, or.any of them, and that no credit was given therein, or claimed by Tompkins, for the amount of the bid of Hulme, or any part, or for any purchase money, or upon or in consequence of any sale of the mortgaged premises under the decree. That afterwards, and in or about the month of May, 1825, and a few days before the death of Daniel D. Tompkins, Thomas Hulme received, and was paid in cash, on behalf of Tompkins, the whole amount of the balance due and owing to him from Tompkins, upon such account stated or otherwise.
    That before the death of Daniel D. Tompkins as after mentioned, a sufficient sum or amount had been realised and received by Hulme and his co-assignees, or some one or more of them, from other the assigned éstate, to pay and satisfy the entire indebtedness of Tompkins to Hulme, and which was properly applicable to that purpose.
    That Daniel D. Tompkins departed this life on the eleventh day of June, in the year 1825.
    That the lands and premises at Castleton before particularly described, were occupied, used, or enjoyed by Daniel D. Tompkins, up to the time of his death; and in the same manner, after the premises were so bid in, as he had occupied, used, or enjoyed the same premises, before the same were bid in at the sale.
    That a few months after the death of Tompkins, and in and about the month of November, 1825, the lands and premises at Castleton, before mentioned and described in the master's deed to Hulme, were exposed for sale at the Tontine Coffee House in the city of New York, by or under the direction of Hulme and his co-assignees, under the indenture or deed of assignment, or by or under the direction of some or one of them. And that at the last mentioned sale, the lands and premises at Castleton, were bid in for $5,900, by Caleb T. Ward, one of the assignees, or by Ichabod Prall, one of the assignees, for the benefit of Caleb T. Ward, or under some secret agreement with Caleb T. Ward, that he, Ward, should have the benefit of the bid so made or to be made, by Prall.
    That the same lands and premises, containing about two hundred and fifty acres, were offered at the last mentioned sale or pretended sale in one parcel, although properly and conveniently v saleable in separate parcels, and were so bid in by or for Caleb T. Ward, one of the assignees or trustees, at the small sum of $5,900, when they were then worth a much larger sum of money.
    That Caleb T. Ward, or one or more of his co-assignees, stated or gave out, at and before the time of the sale last mentioned, that the lands and premises at Castleton were to be bid in at such sale, for the benefit of Mrs. Hannah Tompkins, (the mother of the complainant, and then the widow of Daniel D. Tompkins,) and her family; and that in consequence of such statement, and of a report to that effect, circulated by Caleb T. Ward, or by one or more of his co-assignees, or otherwise circulated among those who were present at such sale, many of those present were thereby prevented from bidding at such sale, and that by means of representations then made by Caleb T.Ward, to several persons attending at such sale, that the premises were to be bid in for the benefit of Mrs. Tompkins and her family, certain individuals, the personal friends of Daniel D. Tompkins, who were then and there present, and able, and desirous to purchase the property, at a much larger price than the sum so bidden for the same, were prevented from bidding at such sale.
    That Thomas Hulme, and his co-assignees or some one of them, caused it to be given out soon after the sale had taken place, that the lands and premises of Castleton had been purchased by Ichabod Prall, and not by Caleb T. Ward; but that ten per cent, of the purchase money was, for the sake of color, required to be paid down to the auctioneer at the time of said pretended sale, and that the same was paid by Caleb T. Ward, and that all subsequent payments, made on account of the bid of $5,900, were made by Caleb T. Ward, and not by Prall, and that Caleb T. Ward, before the sale took place, entered into or made an arrangement to borrow money for the purpose of paying the ten per cent. That Thomas Hulme represented and gave out at such sale, or prior, or subsequently thereto, that the same was made, or was to be made, or had been made) for the benefit of the trust estate.
    That the lands and premises had been prior to such pretended sale, redeemed from the lien of the mortgage, before referred to, and from the sale of the mortgaged premises made under the decree, and from the operation and effect of such decree, if any effect it had, by the payment in full of the entire indebtedness of Daniel D. Tompkins to Thomas Hulme, out of moneys arising from the estate of Tompkins, not connected with, or arising out of the mortgaged premises.
    That afterwards, and sometime in the year 1826, Thomas Hulme and Alice his wife, executed a deed with covenants, on the part of Hulme against his own acts by which they in consideration of $5,900, conveyed to Caleb T. Ward, the lands and premises at Castleton, before described.
    The deed was then set out at large in the bill, bearing date March 7th, 1826.
    The bill further stated, that the deed purported to be acknowledged in the state of Pennsylvania, by Thomas Hulme, and Alice his wife, before William Tilghman, chief justice of the supreme court of that state, on the 7th day of March, 1826. But that the deed was not delivered to Caleb T. Ward, until after the seventeenth day of March, and as the compiainant believes, not until on or about the eighth day of October, 1826.
    That the deed was not delivered to Caleb T. Ward, and that no delivery thereof was made until after the entire indebtedness of Daniel D. Tompkins, and of his estate, to Thomas Hulme had been paid in full ; and that at the time Ward received from Hulme the delivery of the deed, he, Ward, well knew that the indebtedness of Tompkins, and of his estate to Hulme, had been paid in full, and that the lands and premises described therein, had been redeemed from the lien and incumbrance of the mortgage, and from the sale made under the decree obtained thereon, and from the operation of such decree, if any it had. And that Ward also well knew, or had notice of the declaration of trust, so subscribed by Hulme, and of the re presentations made by Hulme, touching the sale in May, 1822s and the master’s deed, before referred to.
    
      That afterwards, and on or about the eighth day of October, 1826, Caleb T. Ward caused the deed of conveyance to him, to be recorded in the office of the cleric of the county of Richmond. That within seven days thereafter, Thomas Hulme, Isaac Pierson, Edmund Smith, Ichabod Prall, and Caleb T. Ward, as surviving assignees, (Samuel Toolcer then being dead,) under the indenture or deed of assignment, and Joseph G. Swift, Thomas Hyatt, and Edmund Smith, trustees under a certain other trust in favor of Daniel D. Tompkins, filed their bill in the court of chancery, against the administrators of thegoods, chattels and credits of Daniel D. Tompkins, and certain of his creditors, to close their several and respective trusts, and for other purposes. And that, in an account rendered in that suit, by Hulme, Pier-son, Prall, Ward, and Smith, as such assignees, or surviving assignees, and filed in the cause, or filed with Thomas Bolton, then one of the masters of the court of chancery, they, as such assignees, debited and charged the trust estate with the taxes which were imposed upon the land and premises at Castleton, from and after the sale thereof, in May, 1822, until the pretended sale to Caleb T. Ward, and with the expenses of such pretended sale thereof, and credited the trust estate with the rents received from the same land and premises at Castleton during the same period last referred to, and with the sum of fifty-nine hundred dollars so bid by, or for the benefit of Caleb T. Ward, at such pretended sale of the premises to him.
    That after the last mentioned bill was so filed, and while the suit thereby commenced, remained undetermined, and sometime in the year 1827, Thomas Hulme executed and delivered to Caleb T. Ward, a paper, or instrument in writing, in the words following, viz. ■
    “ Know all men by these presents, that I, Thomas Hulme, of Philadelphia, in the state of Pennsylvania, Esquire, the mortgagee in the mortgage after mentioned named, do hereby certify, that a certain indenture of mortgage, bearing date the twenty-sixth day of September, in the year of our Lord one thousand eight hundred and seventeen, made and executed by Daniel D. Tompkins, and Hannah his wife, in my favor, for securing a bond for $25,000, with interest, registered in the office of the clerk of the county of Richmond, in líber D. of register of mortgages, page 170, 171, and 172, on the thirtieth day of September, in the same year, 1817, is redeemed, paid off, satisfied, and discharged, by decree and sale in chancery.
    “ Dated the 2d day of February, 1827.
    “ Thomas Hulme, [l. s.]
    “ Witnessed by,
    R. M. Blatchford,
    H. W. Warner.”
    That at the time Hulme signed and executed this paper, and at the time Caleb T. Ward received the same, and caused the same to be filed in the office of the clerk of the county of Richmond, they severally well knew that the mortgage had not been redeemed, paid off, satisfied, or discharged, in the manner therein stated, but on the contrary, they severally well knew that the lands and premises in the mortgage described, had been redeemed from the operation and lien thereof, and of the decree founded thereon, and from the sale made under such decree, by the actual payment and satisfaction of the original mortgage debt, in the manner before set forth, and not otherwise.
    That such pretended deed, and such paper or pretended satisfaction piece, were signed, executed and delivered for the purpose of covering or concealing the real and true state, condition, title or ownership of such land and premises at Castleton, and thereby to prevent or defeat any investigation of the heirs at law of Daniel D. Tompkins, concerning the same.
    That within about two years from the time of the delivery of such deed of Hulme and wife, to Caleb T. Ward, he, Ward, made sales in lots, (part and parcel of said lands and premises at Castleton,) for a price to him paid, or secured to be paid therefor, exceeding the sum of fifty-nine hundred dollars. And that the lots so sold by him, did not exceed in quantity two acres, or thereabouts.
    That at the time Daniel D. Tompkins departed this life, he left him surviving his widow, Hannah Tompkins, and Arietta M. Thompson, (then the wife of Gilbert L. Thompson,) Griffin Tompkins, Hannah E. (then, and now, the wife of John S. Westervelt,) Sarah Ann (now the wife of Archibald Gordon,) Minthorne Tompkins, Daniel H. Tompkins, and Susannah McLaren, (now the wife of Richard G. Smith,) and the complainant, his only surviving children, and heirs at law.
    That Mrs. Hannah Tompkins departed this life in or about the month of February, 1829 ; Arietta M. Thompson departed this life in or about October, 1839, leaving her surviving her husband, and Arietta L. (now the wife of William S. Henry,) Smith Thompson, Daniel D. T. Thompson, Augusta M. Thompson, Catherine L. Thompson, Mangle M. Thompson, Gilberteen L. Thompson, and Sarah L. Thompson, her only surviving children, and heirs at law.
    That the complainant arrived at the age of twenty-one years; on the twentieth day of November, 1835, and that he was the youngest child of Daniel D. Tompkins. That some time after the execution and delivery of the assignment, and before the month of October, 1826, Samuel Tooker departed this life, and that after the fourteenth day of November, 1826, Edmund Smith departed this life.
    That Caleb T. Ward, since the pretended sale of the lands and premises at Castleton, to him, hath set up and pretended, and now pretends and insists, that he, by such pretended sale thereof to him, became the true and actual owner in fee simple thereof, to and for his own sole, individual use and benefit, and wholly and absolutely denies that the complainant, or any of the heirs or creditors of Daniel D. Tompkins, or the trust so created by the assignment, is in any wise interested in, or entitled unto such land and premises at Castleton, or any part thereof, at law or in equity.
    That Caleb T. Ward hath by certain pretended deeds of conveyance, executed by him since the pretended conveyance by Thomas Hulme and wife, granted, or pretended to grant and convey in fee simple or otherwise, unto divers persons divers portions of such land and premises at Castleton, for various and divers prices unknown to the complainant; and that he has also received back from such purchasers from him, or some of them, mortgages upon the premises or some part thereof, so pretended to be sold, to secure all or part of the purchase money; and that he has pretended to mortgage other parts of such premises to various persons, by formal instruments, and for various sums of money, unknown to the complainant, and that he has received divers sums of money as the price or consideration money on the pretended sale of divers lots, part and parcel of the lands and premises, unknown to the complainant' and that a large part of such land and premises still remains in the possession or under the control of Caleb T. Ward, and not sold or conveyed by him, or pretended so to be ' but the complainant is ignorant as to what part of such land and premises, has been sold, or pretended so to be, by Ward, and what part thereof remains not sold by him, or pretended so to be, and of the names of the alleged purchasers of the several parts thereof, so sold or pretended to be sold, but the complainant is informed and believes, and therefore charges, that George Howard, now a resident of the state of Connecticut, and Benjamin Wood, John Anthon, John Yates Cebra, Oroondales Mauran, and Henry North, all residents in the county of Richmond, claim and pretend to have derived some right, title, or interest, jointly or separately, in some parts or portions of such lands and premises at Castleton, under and by virtue of some pretended instruments of conveyance for the same, executed by Caleb T. Ward, since the pretended conveyance to him, by Thomas Hulme and his wife.
    That the complainant is informed by circumstances, and has good reason to believe, and does believe and charge, that after the death of Daniel D. Tompkins, and after it had been ascertained that all his indebtedness to Thomas Hulme, as well as all his other debts provided for by the assignment, might and would be paid and satisfied out of his other property, leaving the land and premises at Castleton under the intentions and designs of Hulme and his declaration of trust in respect thereto, a free and unincumbered inheritance to the children of Tompkins, he, Caleb T. Ward, by and with the aid and concurrence of some one or more of his co-assignees, fraudulently and unjustly formed the design and contrived a scheme, whereby to cause the legal title to such land and premises at Castleton, to be nominally and apparently conveyed to, and vested in him, as his own individual property, with the view, purpose, and intent of holding the same as his own absolute property. That the pretended sale, at which the land and premises were so bid off by or for Ward; the pretended conveyance to Ward, by Hulme and his wife ; and the satisfaction piece, were a fraudulent breach of trust, on the part of Caleb T. Ward, and on the part of any other of the parties of the second part to the indenture or deed of assignment, who acted in the premises, with knowledge of the intentions of Ward ; and that the pretended bidding off by or for Ward, and the deed of conveyance to him, and the satisfaction piece, are, and each of them is, fraudulent and void, as against the complainant and the heirs at law, and creditors, if any, of Daniel D. Tompkins.
    That the complainant is advised and insists, that Thomas Hulme and Caleb T. Ward, both being trustees under and by virtue of the assignment, did not, nor did either of them rightfully acquire, by means of such pretended sales and conveyances to them respectively, any right, title, or interest in the lands and premises at Castleton, and that if they or either of them could acquire any such right, title, or interest, it could only be as trustees under the indenture or deed of assignment, and subject to the same rights of Daniel D. Tompkins, his creditors and heirs at law, as if the same lands and premises were held under the deed of assignment only.
    That the several pretended purchasers from or under Caleb T. Ward, made such purchases with notice of all the facts and circumstances of the fraudulent and improper manner in which Caleb T. Ward so violated his trust, and apparently invested himself in his own right, with the legal title to the lands and premises at Castleton.
    
      That the complainant is advised and claims and insists, that Thomas Hulme did not, and could not lawfully acquire, by his bid or purchase, made in May, 1822, an absolute title to himself, of or to the lands and premises at Castleton, and that Caleb T. Ward could not, and did not purchase, or by means of the deed, executed by Hulme and wife, or otherwise, acquire an absolute title to such lands and premises to himself.
    That Caleb T. Ward at the time, and for a long time previous to the execution of the indenture or deed of assignment, and thence until the death of Daniel D. Tompkins, was employed as, or stood in relation to the latter, of a confidential agent and friend, and was intimately acquainted with his business, property, and affairs.
    That there are not now outstanding any debts or claims against the estate of Daniel D< Tompkins, and that all the purposes for which the indenture or deed of assignment was executed, and all the trusts therein declared and intended, except it be the resulting trust in favor of Tompkins and his heirs at law, have been long since fully executed and satisfied, and were fully executed and satisfied, before the conveyance to Caleb T. Ward, and independently of any pretended advantage resulting to the trust estate, from such conveyance.
    That Caleb T. Ward entered into the possession and enjoyment of the lands and premises described in the deed to him, some time in or about the month of October, 1826, and has ever since taken and received the rents and profits thereof, and wrongfully and unjustly withheld, and still withholds, the same lands and premises, and rents and profits thereof, from the complainant and the other heirs at law of Daniel D. Tompkins.
    That the complainant did not discover, and had not any knowledge or notice of any of the facts constituting the fraud stated in the bill of complaint, or of any of the means whereby the title of Daniel D. Tompkins to the lands and premises at Castleton, or any part thereof, was conveyed to Caleb T. Ward, or attempted so to be, until the year 1845.
    That if there be remaining any debt or debts of Daniel D, Tompkins, provided for in and by the assignment, which the complainant doth not believe, the same must be very small and inconsiderable, and might be at once paid out of the property granted and conveyed by the assignment, without the necessity of0applying the whole or any considerable portion of the lands and premises at Castleton to that purpose.
    That as he is advised and believes and claims, the surviving trustees under the assignment, are bound to account to the heirs at law of Daniel D. Tompkins, for so much of his real estate conveyed by the assignment, including such land and premises, and including the rents and profits thereof, from the death of Tompkins, as have not been necessarily applied, and are not necessary to the payment of debts, or the satisfaction of trusts provided for in and by the assignment; and that the heirs at law of Tompkins, are entitled to have the trust so declared by Thomas Hulme, carried into effect, and to have the conveyance to Caleb T. Ward set aside, or declared to be held in trust for them, and proper conveyances executed to them accordingly.
    That the complainant has applied to several of the heirs at law of Daniel D. Tompkins, residing in the state of New York, and requested them to unite with him in filing his bill of complaint, which they declined to do.
    The bill waived an answer on oath, as to all of the defendants, except Caleb T. Ward, and from him required a full discovery upon oath, with interrogatories. The bill prayed that the trust so declared by Thomas Hulme, might be carried into effect, or that the conveyance by the master, to Hulme, and the conveyance by Hulme and his wife, might be declared to be respectively fraudulent and void as against the heirs at law of Daniel D. Tompkins, or to have been received or to be held in trust for those heirs; and that an account might be taken, touching the real estate so conveyed in trust by Tompkins, and that his remaining debts and the other trust purposes specified and provided for in the assignment, if any there should happen to be, might he satisfied out of the trust funds and properly, remaining in the hands of the assignees, and that it might be declared that all the trusts of the assignment so made by Tompkins, have ceased, and that the trust éstate thereby granted in such parts of his real estate, (including the lands and premises at Castleton,) as have not been required to pay the debts and satisfy the trusts in the assignment provided for, and declared, has ceased; and that the heirs at law of Daniel D. Tompkins, are entitled to such portions of the real estate so remaining, not required for the satisfaction of such trusts, and to an account of the rents and profits thereof, since the death of Tompkins. And that Caleb T. Ward, and the surviving assignees might be decreed to execute all such deeds, conveyances and other assurances, as might be necessary and proper in the premises, and that Ward might be decreed to deliver up all bonds, mortgages, and other securities which he has taken or received for the purchase money on any sales of any part or parts of the lands and premises at Castleton made by him ; to the end that the heirs at law of Tompkins, might have their election to confirm such sales, receiving the purchase money, or to disaffirm the same, if entitled so to do, and permit such securities to be cancelled, and that the persons before named, and all others thereafter discovered, claiming or who might claim any right, title or interest in the lands and premises at Castleton, or any part thereof, under or by means of any sale or conveyance, by Caleb T. Ward, might be decreed to deliver up possession thereof, and that the sales and conveyances to them respectively might be vacated and set aside; and that it might be declared and decreed that by the payment and satisfaction of the indebtedness of Tompkins to Hulme, out of property of Tompkins, other than the lands and premises at Castleton, the mortgage to Hulme, and the decree and master’s deed founded thereon, have been opened, redeemed against, and all lien and operation of the same or any of them, upon the lands and premises at Castleton, and every part thereof, wholly extinguished. The bill also prayed for a receiver of such bonds, mortgages, and other securities, so taken or received by Ward; for an injunction against him, and for general relief.
    The defendant, Anthon, interposed a plea, which was expressed to be a plea to so much of the bill as sought a decree against him to vacate and set aside the sale and conveyance to him of part of the premises in the bill mentioned, and to compel him to deliver up the possession thereof. The plea alleged that George Howard, previously to and on the 3d day of December, 1838, was or pretended to be seised in fee simple, and was in, or pretended to be in, the actual possession of part of the premises described in the bill, (being a certain mansion house and twelve acres of land particularly set forth in the plea,) free from all incumbrances whatsoever; and the defendant, believing that Howard was so seised and entitled, and that such part of the premises were, in fact, free from all incumbrances, on that day agreed with Howard for the absolute purchase of the fee simple and inheritance thereof. Whereupon Howard and his wife, by deed of bargain and sale of that date, duly acknowledged and on the same day recorded in the clerk’s office of the county of Richmond, in consideration of twenty-two thousand dollars paid to them by the defendant, conveyed to the defendant in fee simple, the mansion house and twelve acres of land before mentioned ; with covenants of seisin and against incumbrances. t
    The plea then averred that the whole consideration expressed in the deed was paid, $20,000 on the 17th of December, 1838, and $2000 on the 6th of April, 1839. That at or before the respective times of the execution of the deed and of the payment of the purchase money, he the defendant had no notice whatever of the indenture set forth in the bill between Daniel D. Tompkins and wife of the first part, and Isaac Pierson, Caleb T. Ward and others of the second part, dated July 15, 1822; nor of any title or claim of title of the complainant to the premises ; nor of the facts and circumstances of the fraudulent manner in which Caleb T, Ward violated his trust, and apparently invested himself in his own right with the legal title to the lands and premises, as alleged in the bill of complaint; nor of any adverse claim or title of any kind or character to the premises. That the last mentioned indenture, was not at any of the times before specified, recorded in the county of Richmond, according to the statute. And the defendant insisted, that he was a bona fide purchaser of the premises so conveyed to him, for a good and valuable consideration, and without any notice of the matters before alleged or of any of them.
    The plea further set forth, that Benjamin Wood, previous to and on the 19th day of July, 1842, was or pretended to be seised in fee simple, and was or pretended to be in the actual possession, of a certain other part of the premises, (particularly described in the plea, being a parcel of land of three hundred feet in front and about three hundred and fifty-four feet in depth,) free from all incumbrances whatsoever. The plea then averred a purchase of this parcel, by the defendant from Wood, on the 19th of July, 1842, and the conveyance thereof by Wood and his wife to the defendant, by a deed of that date duly acknowledged, and which was recorded August 6, 1842. The consideration expressed in the deed, was $3500, and there was a covenant of seisin and against incumbrances. The consideration was paid at or about the same date, by a conveyance by the defendant and his wife to Wood, of two lots in fee in the city of New York, of the value of $3500. The plea then denied notice, in respect of the parcel conveyed to the defendant by Wood, in the same terms that it was denied in respect of the parcel conveyed to him by Howard ; and made the same claim, that the defendant was a bona fide purchaser without notice.
    The chancellor referred the plea to the assistant vice-chancellor, to be heard and decided.
    
      J. Cleaveland and C. O’Conor, for the complainant.
    I. The plea is bad, because it does not distinctly point out or define the portion of the bill to which it is pleaded, nor whether it is in bar of the whole bill. (Edwards’ Redesdale Plead. 294, § 1 ; and 219, notes 1 and 2; Story’s Eq. Pl. § 660, 665 ; Beames’ Pleas, 44 ; Allen v. Thorp, 4 J. C. R. 693.)
    1. If it is to be treated as a plea to the whole bill, it is clearly bad; since it maybe perfectly true, and yet the complainant may be entitled to relief against this defendant for some lands described in the bill, and not mentioned in the plea. (Edwards’ Redesdale Pl. 277, note 1.)
    2. If all that is contained in the plea, touching the Wood property, were struck out, the plea, on its face, would be as good as it now is, and yet the defendant would have so much the less to prove. (Harris v. Ingledew, 3 P. Will. 94; Bogardus v. Trinity Church, 4 Paige, 195, 6; 5 Paige, 29 ; 6 Paige, 144.)
    3. The defendant should have pleaded that he was a bona fide purchaser of the lands mentioned in his plea, and disclaimed as to the rest of the 250 acres.
    II. The plea is bad, because the denial of notice of all the facts and circumstances constituting the fraud alleged in the bill, is insufficient and evasive. The plea would be true in this respect, although the defendant had notice of all the facts and circumstances alleged, except one. (See the form in Willis on Pleading, 569 ; 25 Wend. Ill, point 3, and page 117.)
    
      III. The plea does not show a color of right in the grantors, from whom the defendant claims to have purchased in good faith.
    1. As to title in the grantor, a mere pretence may do; but possession in fact, must be averred not a pretended possession. It must be shown that the defendant, when he parted with his money, relied upon a visible sign of ownership, having a just claim to his confidence. (Note 1 to Edwards’ Redesdale Pl. 277 ; Daniels v. Davison, 16 Vesey, 252; 4 Dess. 287 ; Beames’ Pleas, 244, notes 1, 2, 3 ; Wallwyn v. Lee, 9 Vesey ,30 ; 3 Vesey, 224 ; Willis Pl. 567, and note b. to same ; Equity Draftsman, 449.)
    
      D. Lord and J. Anthon, for the defendant, in support of the plea.
    The plea is correct in form. (Willis PI. 566, and notes ; Beames Pleas, 344, App. and notes ; 2 Dan. Pr. 198 ; Cooper’s Pl. 231.) No answer accompanying it, was necessary. (3 Paige, 569; 5 ibid. 28; 7 ibid. 365.) To what the prescribed form requires, we have added the averment that the defendant’s deed was recorded first. The assignment, which is the foundation of the bill, never has been recorded in Richmond county.
    A plea of bona fide purchase, &c., is purely an equitable plea. It presents a case against which equity will not proceed. It has no analogy to pleadings at law, and it need not connect the defendant’s immediate grantor, with the title made by the bill. (See Beames, 159, 245 ; Willis, 249, note a.; Story’s Eq. Pl. § 1525 ; 2 Fonbl. Eq. 412 ; 9 Vesey, 25.) All the requisites of a good plea, setting up this defence, are contained in the plea in question. (Sugd. on Vend. 741, 742; Story’s Eq. Pl. § 403, 805, 810,1502, 662.)
    This plea is good, whether the title of the complainant be equitable or legal. It seems to be considered in the books, a plea rather to the equitable action of the court, than in bar of title; leaving the complainant to assert his title if he can, at law. This is its general office. But under our recording acts, it seems to be a flat bar, if it show that the defendant’s deed was first duly recorded ; and to entitle him to a decree as a matter of right, and not a matter of grace. (See 19 John. 281; 12 ibid., 452 ; 2 Hill, 653; and the notes to 1 Russ. & Mylne, 284.)
    The plea answers the whole bill. The bill does not ask relief against this defendant as to the whole tract; but only as to the parts to which he claims to have derived title under Ward’s deed. The plea answers as to those, and it should go no farther.
    The averment as to the possession of the defendant’s grantor, is sufficient. This very mode of alleging it, is given in Willis’s Equity Pleading. If, however, the averment be faulty, the bill removes the difficulty, for it expressly avers that the defendant’s grantors have been in possession ever since the conveyance to Ward.
    Notice is most fully denied by the plea, of any, as well as of all the facts charged in the bill, requiring such denial.
    This plea is one highly favored in equity; and if, through some technical nicety, the defendant’s plea be deemed informal, or imperfect, the court will give him leave to amend, and not compel him to connect himself with the wide controversy opened by the bill as to the acts of others.
    That would be unjust and oppressive, when this plea presents the only litigation there should be between him and the complainant. (Cooper’s Pl. 336.)
    
      
       See Tompkins v. Ward, post. The bill is stated more at large here than is necessary for the report of Mr. Anthon’s plea, in order to avoid a repetition of its contents in reporting the plea of Ward.
    
   The Assistant Vice-Chancellor.

The plea is set up as a bar to all the relief which the complainant^ seeks against Mr. Anthon.

The bill makes a case for the recovery of two hundred and fifty acres of land, a large part of which is still in the possession of Mr. Ward; and the complainant states that Ward has sold various portions of the tract, but he is ignorant as to what part Ward has sold, and what part he has not sold. The bill then charges that Mr. Anthon and divers others, claimed to have some right or title, in some parts or portions of the 250 acres, under deeds executed by Ward. It asks no discovery from Mr. Anthon as to what portions he claims, but it requires a discovery from Ward, which embraces those particulars.

Mr. Anthon’s plea is, that he is a bona fide purchaser without notice, of two separate parcels of the 250 acres.

I think the plea is clearly defective, as an answer to the whole bill, because it does not aver that Mr. Anthon claims no right, title or interest, in any other portion of the 250 acres.

Upon a replication to a plea, nothing is in issue except what is distinctly averred in the plea; and if that is established at the hearing, the plea is an absolute bar, not merely to that part of the claim to which it is strictly pertinent, but to so much of the bill as it professes to cover. And if the truth of the plea be made out, the bill must be dismissed, although the matters pleaded, contain, in fact, no valid defence to the suit. (Fish v. Miller, 5 Paige, 29; Dows v. McMichael, 6 ibid. 144; Harris v. Ingledew, 3 P. Will. 94.)

So in this case, if the plea should stand and the complainant reply to it, and at the hearing it should turn out that Mr. Anthon claimed a third parcel of 20 acres; this plea if true, would be a perfect bar to any relief as to that parcel, although it is not mentioned in the plea, and although it was in fact purchased with full notice of the equities alleged in the bill.

The omission in the bill to describe the parcels claimed against 'Mr. Anthon, does not alter the case. The plea must be complete within itself, and in connection with the matters of the bill which it leaves uncontradicted, must show a perfect defence to so much of the bill as it professes to cover. And this plea, assuming to extend to the whole bill, ought to have showed that in no event upon the case stated in the bill, could the complainant have any relief against Mr. Anthon.

This defect in the plea is apparently unintentional, and a mere slip of the pleader. The defence attempted by it, narrows very much the grounds of litigation between Mr. Anthon and the complainant; and if the former is willing to stake his defence on this single point, the latter surely cannot reasonably complain. It is a proper case therefore to permit an amendment of the plea, if in other respects it be free from substantial objections. (Leaycraft v. Dempsey, 4 Paige, 124 ; Allen v. Randolph, 4 J. C. R. 697.) To ascertain this, it is necessary to consider the other points made against its validity.

2. It is next objected that Mr. Anthon’s denial of notice, is by way of negative pregnant; so that the plea may be true, if he had notice of all the facts constituting the complainant’s equity, save one.

No discovery being required, an answer denying specially the facts charged, was unnecessary. The precedent in Willis’s Pleadings, 566, 569, is one where the bill required an answer on oath. (See ibid. 568, note, e.; Mitford’s Pl. by Jeremy, Edward’s ed. 276; Pennington v. Beechey, 2 Sim. & St. 282.)

The plea first denies notice of Gov. Tompkins assignment; which is the foundation of the ease made by the bill. It then denies notice of any title or claim of title by the complainant. Next it deniest^otice of the facts and circumstances of the fraudulent and improper manner in which Ward is charged to have violated his trust, &c.

The last denial is open to the observation made upon it by the complainant; but it is succeeded by an averment, that Mr. A. is a bona fide purchaser, without any notice of the matters above alleged or of any of them. The plea in a previous paragraph, also traverses notice of any adverse claim or title of any kind or character.

I think the concluding averment of the purchase without notice, puts in issue notice of each and every fact stated in the bill, which might affect the defendant, or tend to deprive him of his defence as a bona fide purchaser without notice.

In the precedent in Willis, the special denial of notice is limited to the complainant’s title, and this plea is certainly in that respect more full than the one there given. So the plea sustained by Lord Eldon, in Wallwyn v. Lee, 9 Ves. 24, only denied notice of the act of parliament, stated in the bill. See it in Beames Pleas in Equity, 344, 349.

The second objection to the plea is not well taken.

3. It is urged that the plea fails to show a color of title in Mr. Anthon’s grantor, from whom it sets forth the purchase ; because it does not aver a possession in fact in such grantor.

Although the precedent referred to in Willis’s Pleadings, gives the form of averment here used, “ was in or pretended to be in the actual possession,” his note to the plea shows what is most fully settled, that the plea ought to show an actual possession in the grantor. (Mitf. Pl. 275, ed. supra; Beames, 243, 4; 2 Daniell’s Ch. Pr. 200; Jackson v. Rowe, 4 Russ. 514, and several other cases cited in the treatises.) But the plea is to be tested by the whole case on which it rests. Here the bill makes out that Ward was in the actual possession from 1826 onward, claiming in fee, in defiance of the complainant’s right. It also shows, (which the plea does not deny,) that Mr. Anthon claims under a conveyance from Ward, and that Howard so claimed. Now if the plea had averred a purchase from Ward directly, the bill would have supplied all the defects alleged in not averring possession in the grantor. Is not the color of title equally plain, when the conveyance is one remove from Ward, he being in possession, and having conveyed when in possession, and seised or pretending to be seised in fee ?

It meets the substantial requirement of the averment of possession in the grantor, when it appears that the possession has actually accompanied the chain of title set up in the plea, and has been hostile to the title claimed by the complainant, from a period antecedent to the defendant’s conveyance. The possession, as it appears by these pleadings, could not lead the defendant to notice of the complainant’s equitable title, because if Ward continued in possession, it was in hostility to that title; and even if it had led to an examination of the records of deeds, nothing would have been disclosed in favor of that title.

If the legal inference from the facts pleaded and admitted, be regarded, it is that at the time of Mr. Anthon’s purchases, Ward, who for many years had been in possession, pretending to be seised in fee, had sold and conveyed to Howard, but remained in possession ; and Howard claiming to be thereby seised in fee, was in possession by Ward as his tenant. In any view of it, I think the plea substantially comes up to the rule established in cases of purchasers claiming to have bought in good faith without notice.

The plea must be declared invalid on the first ground, with leave to the defendant to amend within twenty days, on payment of the costs subsequent to its being pleaded. If he does not amend, it will be overruled by the usual order.  