
    THE EXECUTORS OF AARON D. WOODRUFF, SURVIVING EXECUTOR OF THOMAS LOWREY, v. JOHN BRUGH AND OTHERS.
    1. After 23 years from the taking of a decree pro confesso on an original bill against all the defendants therein except one, and 22 years after that one had answered the original bill, no step having been taken in the meantime in the original suit, a supplemental bill was filed against some of the defendants to the original bill, and against other persons who had become assignees of others of said defendants since the decree pro confesso was taken.
    2. A demurrer to the supplemental bill was allowed.
    On the 2d of October, 1822, Elias D. Woodruff and Thomas L. Woodruff, executors of the will of Aaron D. Woodruff1, deceased, who was surviving executor of the will of Thomas Lowrey, deceased, filed their bill, stating that on the 1st of April, 1810, Jacob Housel, being indebted unto Aaron D. Woodruff1 and William McGill, executors of the will of Thomas Lowrey, deceased, in $10,865.78, executed to the said executors of Lowrey’s will three bonds, dated April 2d, 1810 ; the first conditioned for the payment of $3521.92|, on the 1st of April, 1811, with interest; the second, for the payment of $3621.92J, on the 1st of April, 1812, with interest; the third, for the payment of $3621.95J, on the 1st of April, 1813; and that to secure the payment of the said bonds, the said Housel, with Mary, his wife, on the day of April, 1810, executed a mortgage to the said executors of Lowrey’s will on certain lands, (described in the bill.) That the mortgage was recorded on the 13th of April, 1810.
    That on or about the day of ,18 , Esther Lowrey, widow of said Thomas Lowrey, died. That the said William McGill died intestate, June 24th, 1815.
    That on or about June 25th, 1816, the said Aaron D. Wood-ruff died, leaving a will dated June 8th, 1814, of which he appointed the complainants executors.
    That on the day of , 1820, the moneys mentioned in the said second and third bonds remaining unpaid, the complainants filed their bill in this court against the said Jacob Housel and Mary, his wife, to foreclose, &c., and for the sale of the said mortgaged premises; and that on the 12th of October, 1821, it was decreed that the mortgaged premises, or such part thereof as might be sufficient for the purpose, be sold to pay to the complainants $7578.41, with interest thereon from the said 12th of October, 1821, and the further sum of $53.37, costs; and that a fi.fa. was issued on the said decree, directed to Edward Welsted, sheriff of Hunterdon. That on the 23d of April, 1822, the said sheriff sold the said mortgaged premises, at public vendue, to one Samuel Britton, for $8900. That afterwards, on the 6th of- May, 1822, the said Jacob Housel, and John Whiting, Henry Eockafellow, John Brugh, Thomas Ellicott, Eeuben Lee, Mary Gray, Henry Chamberlain, Samuel Eockafellow and Wilson Housel presented to this court their petition, setting forth, among other things, that the said Jacob Housel, after giving the said mortgage, and before the filing of the said bill, had sold and conveyed part of the said mortgaged premises, and that the same were then held as follows: A house, store-house and about -J an acre by John Brugh; a house and about £ of an acre by Thomas Ellicott; a house and about -J an acre by Eeuben Lee; a house and about ¿ of an acre by Mary Gray; a house and about J of an acre by Henry Chamberlain; two lots of about half an acre by Samuel Rockafellow; a lot of about a quarter of an acre by Wilson Housel; and a lot of about three-quarters of an aere by George Hills ; and praying that the said decree might be opened, and the said petitioners made parties to the said suit, and let in to defend the same or to redeem the said mortgaged premises. That, on the said 6th of May, 1822, it was ordered by this court that the said petition and the affidavit thereto annexed be filed, and that the parties interested in the matters therein stated be heard before this court upon the matters and prayer of the said petition, on the 24th day of May then instant, and that Edward Welsted, Esq., sheriff of Hunterdon, do not execute any deed for the mortgaged premises so by him exposed for sale, until the parties should be heard upon the said petition, or this court should make further order respecting the same ; and that a copy of the said order and of the said petition be forthwith served on the solicitor of the complainants and also on the purchaser.
    That, afterwards, on the 29th of May, 1822, an order was made by this court upon the said petition, as follows: (The order .sets aside the said sale made by Sheriff Welsted, and directs the said sheriff to make sale of that part of ihe mortgaged premises not conveyed by the said Jacob Housel before the filing of ihe said bill, without prejudice to the right of the complainants to that part of the said property so conveyed in case the part so as aforesaid to be sold should prove insufficient to pay the debt, interest, and costs due the complainants; and that the costs of this application be paid out of the proceeds of the sale.)
    That, on the 5th of August, 1822, the said sheriff sold that part of the mortgaged premises not conveyed by said bill, to Samuel Britton, for $7100.
    That the proceeds of the said last sale, after deducting, &c., was $6938.80, to be paid on account of the moneys due the complainants for debt, interest, and costs, which, on the 5th of August, 1822, amounted to $8013.16.
    This bill is filed against the said John Brugh, Thomas Ellieolt, and others above named, and prays that they may be decreed to pay the complainants the moneys remaining due to them, or may be foreclosed, &c.; and that the several parts of the mortgaged premises held by them may be sold, to pay, &c.
    On the 3d of April, 1823, a decree pro eonfesso was taken against Brugh, Ellicott, Lee, Gray, Chamberlain, Rockafellow, and Dills. On the same day, an order was made that Wilson Housel file his plea or answer within 30 days after the service of a copy of the said order, or that the bill be taken as confessed against him.
    On the 26th of April, 1823, Wilson Housel put in his answer, admitting the bonds and mortgage, the death of Esther Lowrey and of William McGill, as stated in the bill ; and the death of Aaron D. Woodruff, leaving a will of which he appointed the complainants executors; admitting that the complainants exhibited their bill of foreclosure against. Housel and the decree and execution thereon ; admitting the first sale by the sheriff to Britton, as stated in the bill, but denying that Britton was the highest bidder at that sale, or that the said sale was duly advertised, so far as this defendant knows and has heard, and leaving the complainants to make such proof thereof as they shall be advised; admitting the petition stated in the bill and the proceedings and orders thereon, as stated in the bill; admitting the second sale stated in the bill, but not admitting that the premises were duly advertised or legally sold, but saying that he has been informed and believes, and therefore states, that the said premises so sold, consisted of divers distinct houses, mills, and lots of land, which have been held, and were held at the time of said sale, separately; and that a part of said premises, if sold separately and at a fair price, would have satisfied the said execution ; and that the said Jacob Housel, this defendant, did, by writing signed by him and delivered to the said sheriff twenty days before the time appointed for the said sale, elect the part of the said mortgaged premises to be sold and the order of selling the same; and that if the said premises had been so sold, this defendant believes that the same would have brought the full amount due the complainants on their said mortgage.
    The answer further states that, on the 9th of May, 1815, the said Housel and his wife, the mortgagors, by deed of that date, for the consideration of $38.21, sold and conveyed to this deíendaut a certain part of said mortgaged premises, butted and bounded as follows, (giving the description,) containing 11-lOOths of an acre, with covenants of seizin, and that said Housel had good right to convey the same, and that this defendant should hold the same, free of all former mortgages and other encumbrances, and general warranty, which deed was acknowledged on the 9th of October, 1822; that on the same 9th of May, 1815, the said Jacob Housel, by deed of that date, for the consideration of $133.60, sold and conveyed to this defendant another part of the said mortgaged premises, butted and bounded as follows, (giving the description,) containing 18-100ths of an acre, with full covenants of seizin, and that he had good right to convey the same, and that this defendant might forever thereafter have and" enjoy the same, without the lawful let, eviction or disturbance of any person whatever, and that the same were free of all former mortgages and encumbrances, and general warranty, which deed was acknowledged on the 20th of May, 1820, and recorded on the 9th of October, 1822.
    This defendant further answering says, that he has been informed and believes, and therefore states, that there was some agreement, contract or understanding between the said Samuel Britton and the complainants, or one of them, that they, the complainants, would permit the said Britton to buy the mortgaged premises, not conveyed by Housel before the filing of the said bill, as low as possible, at the said last-mentioned sale, upon his agreeing, at all events, to pay the amount due the complainants on the said mortgage, and that the complainants should allow and permit the said Britton to take such proceedings on the said mortgage, in the name of the complainants, as would enable him to raise the difference between the sum for which he might purchase the said mortgaged premises, and the amount due on tho said mortgage, out of the other premises contained in the said mortgage, which had been conveyed by said Housel before the filing of the said bill, or some other agreement to the like effect; and that the said purchase was made in pursuance of the said agreement, and that the said bill filed by the complainants against this defendant and others is really for the use and benefit of the said Britton, and designed to enable him to grasp the whole of the mortgaged premises, although the part purchased by him is worth considerably more than the whole amount.due on the said mortgage; and the answer insists that the said mortgaged premises, not conveyed by the said Housel, if sold separately, in lots, as was elected and designed by Housel, would have brought more than the whole amount due on the said mortgage, and was worth considerably more; nevertheless, the said sheriff, under pretence that no one would bid for it in separate lots, by the direction of the complainants, put up the whole together, and so sold the same to the said Britton. And this defendant insists that the complainants, having filed a bill against the said Housel alone, upon the said mortgage, without making this defendant and others interested in the premises parties, and having sold a part of the mortgaged premises under a decree obtained in said suit, cannot now resort to the lots held by this defendant; and he claims the same benefit as if he had pleaded the said proceedings in said suit, and submits that the complainants are not entitled to any relief against him. And if the court should be of opinion that the complainants are entitled to relief against him, he insists it can only be upon opening the said decree and sale, or permitting this defendant to redeem the said mortgaged premises not conveyed by Housel before the filing of the said first-mentioned bill, which he offers to do, and prays he may be admitted to do,'upon paying whatever is due thereon for principal, interest and costs, which he prays may be ascertained under the direction of this court; and that, thereupon, the complainants and the said Britton may be decreed to deliver up and surrender the possession of the said premises so sold as aforesaid to- this defendant.
    On the 29th of October, 1845, Maria Schenck exhibited her petition, stating the filing of the bill of Elias D. Woodruff and Thomas L. Woodruff, executors of the will of Aaron D. Wood- . ruff, who was surviving executor of Thomas Lowrey, against John Brugh, Thomas Ellicott, and the other defendants therein named, on the 2d of October, 1822, stating the contents and prayer of the said bill and the proceedings in that suit; that Wilson Housel answered the bill, and that- a decree pro confesso was taken against all the other defendants; that before any further proceedings were had in the suit, Elias D. Woodruff, one of the complainants therein, died, leaving Thomas L. Wood-ruff sole surviving executor of the will of Aaron D. Woodruff, deceased, who was the surviving executor of the will of Thomas Low rey, deceased.
    The petitioner further stated that after the death of the said Elias D. Woodruff, the said Thomas L. Woodruff, surviving executor as aforesaid, assigned to the petitioner the moneys for the collection of which the said suit was instituted, in part payment of certain claims of the petitioner upon the estates of the said Thomas Lowrey and the said Aaron D. Woodruff. That the said Thomas L. Woodruff, surviving executor as aforesaid, has ever since neglected and refused to proceed in the said suit for the collection of the moneys so assigned to the petitioner, and which yet remain due and unpaid. That, by deed'dated March 30th, 1826, Mary Gray, one of the defendants in the suit, conveyed that part of the mortgaged premises held and owned by her at the time of the filing of the bill, to Wilson Housel, by whom the same was sold and conveyed to one Samuel Cooley, who now is seized and possessed thereof, and that Mary Gray, after the execution of the said deed, died. That George Dills, another of the defendants, having conveyed that part of 'the mortgaged premises owned by him, at the time of the filing of the bill, to one Daniel Stiles, also died; and that said Daniel Stiles conveyed that part of the said premises to one Charles Vorhis, who has since conveyed some interest therein to one Peter Vanderbelt. That Thomas Ellicott and Samuel Rockafellow having respectively conveyed awa}1- such parts of the mortgaged premises as were held and owned by them at the time of the filing of the bill, left this state prior to 1830, and that the petitioner is unable to discover where they now reside, if living, or whether they are now living. That one Daniel Van Sickle is now seized and possessed of that part of the mortgaged premises formerly owned by the said Samuel Rockafellow, and that Samuel Cooley, John B. Osmun and John Stockton are now seized and possessed of several portions of that part of the said mortgaged premises formerly held and owned by said Thomas Ellicott.'
    
      The petitioner prays that leave may be granted to the petitioner to file a supplemental bill in her own name and the name of the said Thomas L. Woodruff, surviving executor as aforesaid, or otherwise, against the said Samuel Cooley, Charles Worhis, Peter Wanderbelt, Daniel Wan Sickle, John B. Osmun and John Stockto.n, to make them parties defendant in the said suit, with proper allegations setting forth the matters and facts aforesaid, together with such other matters, either by way of amendment to the said original bill, or as supplemental thereto, as the petitioner may be advised, and with prayer for such relief in the premises as may be adapted thereto.
    On the reading and filing of this petition, an order was made, granting leave to file a supplemental bill, according to the prayer of the petitioner.
    The supplemental bill was filed November 29th, 1845, by Thomas L, Woodruff, surviving executor of the will of A. D. Woodruff, who was surviving executor of the will of Thomas Lowrey, and Maria Schenck, against John Brugh, Thomas Ellicott, Reuben Lee, Henry Chamberlain, Samuel Rockafellow, Wilson Housel, William Wanderbelt, Samuel Cooley, John B„ Osmun, John Stockton, Daniel Wan Sickle, Charles Worhis, Peter Wanderbelt and Rachel Graves.
    It states the giving of the three bonds by Jacob Housel to ■ Aaron D. Woodruff and William McGill, executors of the will of Thomas Lowrey, and of the mortgage to secure the payment thereof; the death of the widow, Esther Lowrey; the death of William McGill; the death of A. D. Woodruff, leaving a will appointing Elias D. Woodruff and Thomas L. Woodruff executors thereof; the filing of the bill of foreclosure on the 2d of July, 1821, by Thomas L. and Elias D. Woodruff, against Jacob Housel and wife; the proceedings in that suit; the first sale to Britton, for $8900; the petition of Jacob Housel, John Brugh and others, and the order made thereon ; the second sale of the part of the mortgaged premises not conveyed by Jacob Housel, for $7100, to Britton, and the balance remaining due on the mortgage after the application of the proceeds of that sale; the filing of the second bill by Thomas L. and E. D. Woodruff, executors as aforesaid, against John Brugh, Thomas Ellicott and the other defendants therein named, for the sale of the parts of the mortgaged premises severally held by them for the payment of the said balance, and the proceedings in that suit.
    This bill then states, that shortly after Wilson Housel had filed his answer in the said second suit, Elias D. Woodruff died, and that no further proceedings had been had in the said second suit since his death, he being the principal acting executor of the will of A. D. Woodruff, surviving executor of the will of Thomas Lowrey, and that Thomas L. Woodruff, the surviving executor of the will of A. D. Woodruff, neglected to prosecute the said suit. That after the death of the said Elias D. Woodruff, on or about November 21st, 1833, the complainant Thomas L. Woodruff, surviving executor as aforesaid, assigned to the complainant Maria Sehenck the moneys for the collection of which the said second suit was instituted, in part payment of certain claims of the said Maria upon the estates of the said Thomas Lowrey and the said A. D. Woodruff, and delivered the said bonds and mortgage to her. That by deed dated March 30thf 1826, Mary Gray, one of the defendants in the said second suit, conveyed the part of the mortgaged premises held by her, to Wilson House!, who sold and conveyed the same to Samuel Cooley, who now holds the same, and that Mary Gray has since died. That George Dills, another of said defendants, conveyed the part held by him, to Daniel Stiles, and afterwards died, and that Stiles conveyed the same to Charles Vorhia, who has since conveyed some interest therein to Peter Vanderbolt. That Thos. Ellicott and Samuel Roekafellow having, respectively, conveyed the parts of the mortgaged premises held by them, left this state prior to 1830, and that these complainants are unable to discover where they reside, if living, or whether they are living. That Daniel Van Sickle is now possessed of that part of the mortgaged premises formerly owned by said Samuel Roekafellow, and that Samuel Cooley, John B. Osmun, and John Stockton are now possessed of several portions of that part of the mortgaged premises formerly owned by Thomas Ellicott. That the complainants are informed that William Vanderbelt has become seized of or entitled to the whole or a part of those portions of the mortgaged premises so owned by John Brugh and Reuben Lee. That Rachel Greaves holds a mortgage given by one John B. Osmun and wife, on that parcel of the mortgaged premises owned by Thomas Ellicott, as aforesaid, and that William Vanderbelt holds a mortgage given by Charles Vorhis, and one given by Samuel Cooley, on other parcels of said mortgaged premises formerly owned by George Dills and Mary Gray, as aforesaid.
    That the balance of $1074.36, with large arrears of interest, still remains due these complainants.
    ■ The bill has the usual prayer for foreclosure and sale, and for process.
    To this bill, an appearance was entered for the defendants, John Brugh, William Vanderbelt, Samuel Cooley, John B. Osmun, John Stockton, Daniel Van Sickle, and Charles Vorhis.
    Publication was ordered as to Thomas Ellicott, Reuben Lee, Henry Chamberlain, and Samuel Rockafellow,
    On the 18th of March, 1846, the demurrer of John Brugh, William Vanderbelt, Samuel Cooley, John B. Osmun, John Stockton, and Daniel Van Sickle, was filed to this supplemental bill. The causes of demurrer assigned are, that the bill is filed, by leave, as á supplemental bill, whereas, the facts set out in it are not material to the matters in controversy in the original suit, as the same are set out in the supplemental bill; that this bill is not any addition, merely, in material matters, to the original bill, in order to supply some defect in it, but is an original bill in its frame and character, and not a supplemental bill, and is, therefore, informal, irregular, and improperly exhibited.
    Another cause of demurrer assigned is, that this bill is filed as supplemental to a suit in which one of the complainants died, more than twenty years ago, and the said suit has never been revived by any order of this court.
    Another cause of demurrer assigned is, that it appears, by this bill, that Thomas L. Woodruff, one of the complainants, assigned all his interest in the bonds and mortgage, which are the sole matter of controversy in the suit, to Maria Schenck, the other complainant, several years before the bill was filed, and thst the said Woodruff, therefore, having no interest in the suit ought Slot to be a party complainant, and that there is an improper joinder of parties eomplainaut.
    And further, that it appears by the biJi that the said Thomas L. Woodruff, the complainant in the original suit, has neglected and refused to prosecute the same, and now exhibits a supplemental bill in the same suit, for the same subject matter, which these defendants are advised is irregular and unlawful.
    Another cause of demurrer assigned is, that the bill is filed, in part, for the purpose of bringing new parties defendants in the original suit before the court, who became interested in the premises in question after the original bill was filed, which is unnecessary, and subjects these defendants to great expense; and that all the relief prayed for in the supplemental bill, and full relief in the premises, independent of what is therein prayed for, could have been granted and afforded in the original suit, if the complainants are entitled to any.
    Another cause of demurrer assigned is, that Maria Schenck has no right to exhibit the supplemental bill, and that upon the facts set forth in this bill, she could only come before this court for relief by original bill, if at all, considering that some twelve years had elapsed, after the bonds and mortgage are said to have been assigned to her, as set out in said bill, before it was exhibited.
    Another cause of demurrer assigned is, that the facts and case set out in this bill are within and would be barred by the statute of limitation at law, and that these defendants have been in the peaceable and undisturbed possession for more than twenty years before the said bill was exhibited of the premises, as their own, which are sought to be foreclosed by the said bill, and without any acknowledgment during that time of any right or title to the same in the complainants, or either of them, or any one else..
    Another cause of demurrer assigned is, the lapse of more than twenty years, not satisfactorily accounted for, between the filing of the original bill and the exhibiting of the said supplemental bill.
    Another cause of demurrer assigned is, that David Williams, Isaac White, William Cooley, William Thomson, Isaac Johnston and Jacob Moore, of the county of Hunterdon, at the time the said supplemental bill was filed, were interested in and in possession of and claimed title to certain parts of the premises described in the said bill, and ought to be made parties. The general cause of want of equity is then assigned.
    
      A. Wurts and P. D. Vroom, in support of the demurrer,
    cited Story’s Eq. Pl., § 790, 332, 3; 1 Hoff. Ch. Pr. 393, 7; Mitford Pl. 34, 55; Hinde’s Pr. 42, 45; 3 Atk. 370; 1 Hoff. Ch. Pr. 402, note 7, 405; Story’s Eq. Jur., § 1050,1; Story’s Eq. Pl. 351, a, note 2; Ib., § 343, 615, 616; 17 Ves. 144; 2 Mad. Rep. 53; Story’s Eq. Pl. 358, § 351; Ib., § 349, note 5, § 7, 19, § 509, note 5; Ib., § 194, 338; 1 How. Rep. 161; 9 Pet. 416 ; Story’s Eq. Pl., § 484, 503, note 1, § 756, note 5, 757, note 3, 759; 1 Green’s Rep. 68; 2 South. 721; 2 Story’s Eq. Jur., § 1520, a, and notes ; 4 Kent’s Com. 188 ; 3 Harr. 269; Angell on Limitations 25; 2 Scho. and Lefroy 630, 6; Ambler 645; 3 Bro. Ch. 639; 2 Jac. and Walk. 188, 191; 4 Burr. 1962; 2 Cond. Eq. Rep. 137.
    
      F. T. Frelinghuysen, contra,
    
    cited Story’s Eq. Pl., § 332, 3; 1 Hoff. Ch. Pr. 397; Mitford 62, 3; Story’s Eq. Pl., § 790, 1, 229, 332, 4, 338, 340, 343, 885; 2 Greenl. Ev., § 431; 3 Bro. Ch. 639; 6 John. Ch. Rep. 663; 4 John. Ch. 287.
   The Chancellor.

A decree pro confesso was taken against all the defendants to the original bill, except Housel, twenty-three years before the filing of the supplemental bill; and Housel answered the original bill twenty-two years before the filing of the supplemental bill; and no step has been taken in the cause in the meantime. The supplemental bill is against some of the defendants in the original suit and against other persons who have become alienees from others of said defendants since the said decree pro confesso was taken. There is nothing in what has occurred since the filing of the original bill making a supplemental bill necessary. The only object of it, therefore, must be to avoid the effect which the lapse of time might have upon the original suit or upon a now original bill. The complainant cannot be permitted thus to relieve himself from the effect of his own laches.

Demurrer allowed.  