
    LEWIS F. R. GREGORY v. RICHARD STILLWELL AND PETER P. BROWN.
    1. Bill for specific performance, and injunction thereupon. Extension of time far making payments. Injunction dissolved on answer.
    2. As a. general rule, an injunction will not be dissolved without the answer of the defendant on whom the gravamen of the bill rests. But if tbe ansY.-ering defendant is able from Ms own connection with the subject matter and consequent knowledge, to lay the facts before the court which show that the complainant has no equity, the injunction may be dissolved without the answer of such other defendant.
    The bill, exhibited by Lewis F. R. Gregory, June 8th, 1816, states that Ebenezer B. Gregory, by two deeds, one dated September 27th, 1839, and the other dated November 6th, 1839, sold and conveyed to the complainant several tracts of land in the township of Jefferson, county of Morris, and the township of West Milford, county of Passaic; three of which are described in the bill, one situated at New Foundland, in the township of West Milford, county of Passaic, and the other two situated at New Foundland, and each partly in Morris and partly in Passaic county; and that, by virtue of the said conveyances, the complainant entered into and possessed the said lands and premises. That there is on the premises a valuable forge and iron works m full operation. That on the 12th November, 1839, Richard Stillwell recovered-a judgment, in the Supreme Court of this state, against the said Ebenezer B. Gregory, for $350.88 damages and $33.26 costs, and that thereupon a fi. fa. was issued to the sheriff of Passaic, under which the said lands were sold and bought by Stillwell, on the 25th August, 1840, for $10, and a deed therefor made accordingly, by the sheriff to Stillwell. That Stillwell, by virtue of the said deed, claimed to have title to all the said tracts, as well the part thereof situated in Morris, as the part thereof situated in Passaic. That the complainant, for the purpose of quieting the said claim of Stillwell, and of procuring a complete and proper title for the said premises, proposed to Stillwell to buy of him all his right and title thereto; and that it was therefore agreed between Stillwell and the complainant, that Stillwell would sell and convey to the complainant all his right to the said lands, when the complainant should .pay him the amount of his said judgment against E. B. Gregory, and the costs and sheriff’s fees thereon, and the amount due on a note which Stillwell then held against E. B. Gregory, for $325, dated December 21si, 1838, with the interest thereon. That Still-well was about entering into an article of agreement with the complainant accordingly, when Peter P. Brown proposed to Still-well to make a lease of the premises to the complainant for a certain rent, and to insert therein a clause for the sale and conveyance of the premises to the complainant on the terms aforesaid. That Stillwell, on such suggestion, preferred that form of agreement; and that the complainant being told it was, in effect, the same thing as an ordinary article of agreement for sale, assented to it. That thereupon, an agreement in writing between Stillwell and the complainant was executed, to the tenor and effect following: (setting out the agreement.) It is dated September 2d, 1840, and witnesseth that Stillwell agrees to lease to the complainant for one year, the Carthage forge in Passaic, together with one lot of 10 acres, one lot of lO-J acres and one lot of 6 or 7 acres situated in Passaic and Morris counties, (being the lots described in the bill,) together with all the interest said Stillwell has in said lands and forge in and about said Carthage forge; and that the complainant agrees to pay therefor to Stillwell, $102.50, the receipt whereof is acknowledged in the agreement; and Stillwell further agrees with the complainant, that he will sell and convey to the complainant all the right, property, claim and demand that he then had or might thereafter have to any lands that were then in the possession of Gregory, the complainant, when said Gregory paid him the amount of his judgment against E. B. Gregory, and a note for $325 which he held against E. B. Gregory ; and Stillwell agrees that the $102.50 then paid as rent, and $51 paid by the complainant to the -sheriff of Passaic, be counted and allowed as so much paid on the said judgment; and the balance due on the said judgment the complainant agreed to pay in four months from the date of the article; and the said note and the interest thereon he agreed to pay in June, 1841. And Gregory agreed, that if default was made in the said payments, he would deliver up to Stillwell the possession of the forge and premises, pond and pondage. And Stillwell further agreed to contest the suit in chancery then commenced by A. Bell, and, if possible, prevent Bell from foreclosing on said forge lots; and if it was necessary for Stillwell to answer Bell’s bill, Gregory agreed to be at the expense of the answer. The bill states that the said article is now, as the complainant is informed and believes, in the custody of said P. P. Brown. That at the time of executing the said agreement, he, the complainant, paid to Stillwell the said $102.40, and to the said sheriff the said $51. That just before the next payment became due on the said agreement, it was represented to Stillwell, at the request and on the behalf of the complainant, that the complainant could not, without great difficulty, make the said payment by the time it would beeomé due; and that Stillwell replied, as the complainant is informed and believes and charges, that it was of no consequence that the payment should be made when due ; that he did not need the money ; and that any other time would answer his purpose quite as well; and that the complainant could have his own time for payment, or words to that effect. That the complainant, relying on such extension of time for making the said payment, did not prepare to meet the same when due. That afterwards, on or about June 1st, 1841, and before the last payment became due, Stillwell was applied to, on behalf of the complainant, in relation to the conveyance of the premises to the complainant, pursuant to the said agreement; and that Stillwell then said that the complainant liad not complied with the agreement, and that he, Stillwell, would not fulfill it on his part; that he had had trouble enough about it and would have nothing more to do with it, or words to ¿hat effect. That it was then, on the behalf of the complainant, represented to Stillwell that the complainant was informed that he, Stillwell, had conveyed, or agreed to convey, his interest in the premises to the said Brown; and that Stillwell, as the complainant is informed and believes, denied it. That Brown, on being inquired of, on behalf of the complainant, also denied that Stillwell had agreed to convey his right in the premises to him, Brown. That at the time'of the execution of the said agreement, Brown was present arid advised Stillwell about it; and that after the agreement was executed, Brown took the charge and custody of it, and had full notice and knowledge of its contents. That the complainant has since been informed and believes and charges, that Stillwell, on the same day the agreement between him and the complainant was executed, contracted with said Brown to sell him the said premises; and afterwards, on or about November 1st, 1841, conveyed the same to said Brown, by deed of that date, or some other. That the complainant has since applied and requested him to fulfill the said agreement between the complainant and Stillwell, and to convey the premises to the complainant on the terms mentioned in the said agreement ; and that the complainant was and still is ready and willing, and that he offered to said Brown, to fulfill the agreement •on his part, and to pay him the amount due on the said agreement, on his making to the complainant a conveyance of the premises in the same manner as Stillwell had agreed to convey the same; but that Brown wholly refused so to do, and claims to hold the right and title in and to the said premises. That on .the 26th October, 1841, Robert Morrell recovered a judgment in the Circuit Court of Passaic against said P. P. Brown and H. Brown and Henry M. Brown, for $215.95, damages and costs. That on the 30th October, 1841, the executors of A. Schuyler recovered a judgment in the same court against said P. P. Brown fur $144.73; and that there is a suit pending in the said court in favor of Elizabeth Boyd against the said Brown, in which judgment may be rendered, &c. That said judgments are encumbrances on the premises; and that, by reason thereof, Brown has rendered himself unable to convey to the complainant the said premises in the same maimer as Stillwell might and ought to have done. That the complainant, by himself and his ten;auts, has been in the peaceable possession and enjoyment of the premises and the forge and works thereon since the time of executing the said agreement, and still is in such possession and enjoyment-. That Brown, on or about November 20th, 1845, commenced an ejectment in the Circuit Court of Passaic against John B. Vanderen and Elias Sergeant, to recover the possession of the said premises, and that the complainant was permitted to appear to the said action, to defend the same, as landlord. That neither Stillwell nor Brown, nor any person for them, ever demanded from the complainant payment of the money, the time for paying which was so extended by Stillwell, or gave any notice of rescinding the said agreement. The complainant charges that Stillwell never intended to fulfill ihe said agreement, but, the day of executing it, sold his interest in the premises to Brown j and that Stillwell and Brown both endeavored to conceal their agreement from the complainant till the time of making the said payment had elapsed. That the said agreement between Stillwell and the complainant was meant'and intended -as an agreement for the sale of the premises, and has been considered and acted upon as such to the present time. That no mention lias been made to- the complainant by Stillwell or Brown, or any person for them, or either of them, of any rent being due from the complainant for the premises, or of the complainant being merely a tenant ol‘ the premises, but that the possession of the complainant has been, under and by virtue of his prior title and of the said agreement, in the character of a purchaser, and that the complainant lias, ever since the execution of the said agreement, used the premises as his own, and made great improvements thereon, and done all the repairs to the forge j and not only the small repairs, which it is customary for tenants to make, but also the large repairs, that is to say, such as cost over $5, which it is customary for the landlord to make, and has expended, in and about the premises, more than f400; and, among other improvements and repairs, has put in new hot-blast pipes, a new hammer wheel, and a new anvil. The bill prays a specific performance of the said agreement and a conveyance of die premises, on the complainant’s paying the residue of the purchase money, with the interest thereon, and an injunction against the further prosecution of the ejectment.
    The injunction was granted.
    Peter P. Brown put in an answer to the bill. Stillwell did not answer.
    The answer of Brown states that he supposes it to be true that E. B. Gregory executed and delivered to the complainant the two deeds stated in the bill, and says that the record of the deeds shows that they were both acknowledged November 15th, 1839, and recorded December 5th, 1839. He admits that Still-well, on the 12th November, 1839, recovered against E. B. Gregory the judgment stated in the bill, and that, on a fi. fa. issued thereon, the sheriff sold the premises, so far as they were within the county of Passaic, to Stillwell, and executed and delivered to him a deed thereof; and he says that, at the said sale, the sheriff sold other lands, which were bid off by one Samuel S. Gregory, the father of the complainant, for about $51, but that he has heard, and supposes it to be true, that the deed for the same was made out by the sheriff to the complainant; that the said judgment of Stillwell was on a note from E. B. Gregory to him, for $325, and that Stillwell held another note against E. B. Gregory, for the further sum of $325, both of which .notes were secured by a mortgage given by E. B. G. to Slillwell, on the property described in the deeds from E. B. Gregory to the complainant. He insists that, by virtue of the sale to Stillwell, he acquired all the equity of redemption of E. B. Gregory in the lands lying in Passaic, and that, thereby, all the right of the complainant to the lands lying in Passaic was extinguished, as the judgment of Stillwell was prior to the conveyance to the complainant; but he admits that Stillwell claimed a right to the property lying in Morris, by virtue of his said mortgage. He admits that Stillwell, after the said conveyance from the sheriff to him, was applied to by the complainant to purchase the property, but he denies that the complainant made the appplication for the purpose of quieting any title he had to the property in Passaic, so bought by Stillwell, for, he says, all the title the complainant previously had was extinguished by the sheriff Asale. He says that Stillwell, after his purchase at the'sheriff A sale, proposed to him, the defendant, to sell to him the said property for the amount of his (StillwellA) claim against E. B. Gregory ; that he stated to Stillwell that he thought the property was worth the amount, and that he would be willing to buy it at that price, but that he thought Stillwell ought to give the complainant, or some of the Stillwell family, the right to purchase it, and give them a ehanee to pay for it; and that ¡10 advised Stillwell to do so, and declined making the purchase on that account; but that he then agreed with Stillwell, that if he, Stillwell, would sell to the complainant, and give him a chance to pay for it, and the somplainant should not comply with the terms, that, on the complainant’s failure to pay, he, the defendant, would bay the property, and that the defendant and Stillwell entered into an agreement to that effect. That, thereupon, Stillwell and the complainant entered into a verbal agreement. That the plan of leasing the property for a year was proposed by Stillwell’s counsel, and he, the defendant, approved it; and it was agreed upon by all parties. That, after this conversation, Stillwell came to him and wished him to go with him to see the complainant and have the agreement concluded. That this defendant did so; and the complainant’s father, Samuel S. Gregory, drew up the agreement, and it was then signed by both parties ; but if was ,uot under seal; aud the agreement was then placed in his hands for safe-keeping, and is yet in his possession. The answer thou gives a copy of if. The substance of it is set out in the bill. He insists‘that, by the agreement, no sale was made, but that it only gave the complainant a privilege of purchasing, if he should determine to do so, by making the payments at the times mentioned ; and that, in the meantime, and until he paid, lie was to remain as tenant of Stillwell, aud that if he did not pay, he would surrender the property. He admits that he has heard, and believes that the complainant paid Stillwell the §102.50, and says that nothing more has been paid on the said agreement; but he has heard, and believes that the complainant paid §51 to the sheriff of Passaic for the property bought by S. S. Gregory at the sheriff’s sale, and conveyed to the complainant by the sheriff, that being paid for a different property, and whioh he was bound to pay at the time of making the agreement aforesaid. He says he lias never heard that any person had applied to Stillwell for the complainant, or for any other person, or in any way, to obtain a postponement of the time of payment under said agreement, or that Stillwell said it was of uo consequence, &c., (in the words of the bill,) and says he does not believe that Stillwell made any such promise, or had any such conversation as is stated in the bill; and he insi.-ts that, if any such-'promise was made, it being without his knowledge, cannot affect -him, he being a bona fide purchaser without notice. He says that he has never heard that, on or about June 1st, 1841, or at any other time, Stillwell was applied to on behalf of the complainant, in relation to the conveyance of his right and interest in the premises to the complainant under the said agreement, or of the conversation of Stillwell respecting the same, save by the bill; or that Stillwell had been applied to to know if he had sold to this defendant; nor does he recollect that he was asked by the complainant, or any person on his behalf, as to his having bought the property, or of his having agreed to buy it; but that, after the times of payment had expired, he informed the complainant that he had bought the property, or had agreed to buy it, and that the complainant made no objection to it. He admits that, after the time of payment to be made by the complainant, in case he chose to take the property, had expired, Stillwell informed him that the complainant had not complied with the agreement, and that he, Stillwell, considered the article void, and that this defendant must take the property; to which the defendant agreed, the defendant considering that the complainant was unable, by reason of his embarrassed circumstances, to take the property ; that he had abandoned the agreement, and that it was at an end; and this defendant admits he bought the property-from Stillwell, and that the same was conveyed to him by deed dated August 12th, 1843, acknowledged and delivered the same day, and recorded September 19th, 1843. He says that, up to the date of the recording of said deed, the complainant had not, so far as this defendant knows or believes, applied to Stillwell for a deed, or tendered any money to him for a deed under said agreement ; nor had the complainant, before that time, applied to this defendant for a deed, or tendered any money to him, or notified this defendant that he claimed any right under the said agreement; although this defendant had long before informed him that he, this defendant, had bought the right of Stillwell in said property ; and that the complainant never did so till June, 1846, a few days before filing his bill, when the complainant asked this defendant for a deed for the forge property, stating that he was ready to fulfill his contract with Stillwell; but that he showed no money to this defendant; and this defendant declined giving him a deed, considering that he had no right to the property. He says, that after the failure of the complainant to pay and after this defendant had agreed to take the property from Still-well, he applied to his counsel to bring ejectment to recover from the complainant the possession of the lands lying in Passaic, and was advised by his counsel that the complainant was entitled to notice to quit; and'thereupon the defendant, as assignee of Still-well, although before he had received his deed, caused a notice to be served on the complainant, as follows ; “ You are hereby required to quit the premises held under me, now in your occupation, on the 2d September next, that being the end of a year’s occupation, or you will be held lo be a trespasser and liable to all the consequences. Dated June 1st, 1843. Signed Peter P. Brown, assignee of Richard Stillwell.” That the said notice was directed to the complainant, and served on him June 6th, 1843. He says that at the date of the agreement the complainant lived with his father, S. 8. Gregory, within 200 yards of the forge, and continued to live with him, at that place, till the spring of 1844 or 1845. That after the said notice had been served on the complainant, and while the complainant so lived with his father, his father applied to this defendant to purchase of him the said property, and, as an inducement to this defendant to sell, stated to him that the said notice to quit was not, in some respect, legal or in due form, and lhat this defendant would have difficulty in getting the complainant out of possession. That said S. S. Gregory repeatedly called on this defendant to buy said property, and this defendant finally agreed to sell to said S. S. Gregory all the property conveyed to him by Stillwell for $1000. That the sum included a private debt of said S. S. Gregory to him, after deducting $500, which this defendant gave up to said S. S. Gregory; and this defendant also assigned to him certain notes or judgments amounting to between $500 and $700, they not being of much value to this defendant, though of some value to said S. S. Gregory. That thereupon this defendant sold and conveyed the said property to the said S. S. Gregory, by deed dated September 1st, 1843; and the defendant believes, and then believed, that said S. S. Gregory was acting in this matter with the knowledge and approbation of the complainant ; and that, after this sale by this defendant to said S. S. Gregory, the complainant, had notice of such purchase, and that he then stated that his father had purchased the forge property, but that he did not believe his father would be able to pay for it. He says that since he gave the said notice to quit, the complainant has never set up any claim to the property, or ever called on him, till June as aforesaid. That S. S. Gregory, after receiving the said deed from this defendant, entered into possession of the premises, and leased the same, or that part thereof being the forge property, to Foster Landing, by lease under seal, dated September 6th, 1843, who held it under said S. S. Gregory and paid rent to him'; and that he continued over a year as tenant to said S. S. Gregory. Then said S. S. Gregory worked the forge himself for some time, and in June, 1845, he leased it to John B. Vanderen, who has ever since then been in possession, under the said lease from S. S. Gregory, and has paid the rent to him. That said last-mentioned lease was for one year. That both Landing and Vanderen, by their said leases, agreed to pay S. S. Gregory three hundred of iron for every ton of iron made in said forge, as rent; and that S. S. Gregory has never paid this defendant one cent on said purchase. That S. S. Gregory, on the day he received his deed from this defendant, executed a bond for $1000 and a mortgage on the same property to this defendant to secure the consideration money, and, he having failed to pay, this defendant foreclosed the said mortgage and obtained a decree for the sale of the property. That an execution was issued under the said decree, and- the property sold by virtue thereof, and this defendant bought it and received the deed therefor; and, after receiving the said deed, brought an ejectment against the said Vanderen, the tenant under the said S. S. Gregory, and against E. Sargeant, a workman in possession of the forge, who was employed by said Vanderen. And this defendant denies that the complainant has been in possession of said property all the time since the date of said agreement, but insists that, since the said sale to S. S. Gregory, he, the said S. S. Gregory, has been in possession, by himself or his tenants, as before stated. That Vaucleren and Sargeant entered into consent rules in the ejectment, and the cause was noticed for trial at the term of March, 1846. That at that term the complainant was admitted to defend the suit as landlord, on condision that he should pay the costs of the term and enter into consent rules in 30 days, or judgment should be entered as of March term. That the complainant’s attorney afterwards refused to exchange consent rales; and, at the June term, consented that judgment should be entered, and it was entered, accordingly, against the said Vauderen and Sargeant. He admits the judgments stated in the bill to have been entered against him; but says they have been satisfied. He admits the complainant made some repairs, and put some improvements on the said forge; bat what amount ho has expended the defendant cannot say; but he says that the said forge works are not now in any better condition than they were at the date of said agreement, taking them altogether.
    On this answer, a motion was made to dissolve the injunction.
    
      A. S. Pennington, for the motion.
    
      William Halsted, contra.
   The Chancellor.

As a general rule, an injunction will not be dissolved without the answer of the defendant on whom the gravamen of the bill rests. Bat if the answering defendant is able, from his own connection with the subject, and consequent knowledge, to lay facts before the court which show that the complainant has no equity, the injunction may be dissolved without the answer of such other defendant. The equity shown by the bill did not rest on the extension of time for payment alone. The extension alleged would not have been sufficient to authorize an injunction. The only extension of time alleged in the bill related to the first payment. But, at about the time when the second payment became due, the first still remaining unpaid, the complainant, as charged in the bill, applied to Stillwell in relation to the conveyance, and Stillwell then said that the complainant had not complied with the agreement, and that he,. Stillwell, would not fulfill it on his’ part. Here, then, was án end to the extension of time. . This was in June, 1841, and the bill was not filed till June, 1846. But the bill stated that’, notwithstanding this answer of Stillwell; the complainant had been permitted to remain in possession four years and upwards, before the ejectment was brought, and that he had expended in improvements upwards of $400; that Stillwell held the property sometime after June, 1841, and then conveyed it to Brown, who had full knowledge of the agreement between Stillwell and the complainant, but that neither Stillwell nor Brown ever asked rent from the complainant, and that the complainant was considered as remaining in possession, not as tenant, under the leasing part of the agreement, but as purchaser, under the other part of the agreement. This brings the equity of the bill within the reach of Brown’s answer. Stillwell conveyed to Brown in August,'1843, and Brown swears that on the 1st of September, 1843, he sold and conveyed to S. S. Gregory, the father of the complainant, and with whom the complainant had lived ; and that thereupon S. S. Gregory went into possession of the premises and leased the satne, or a part thereof, being the forge propei’ty, to Foster Lauding, by lease dated September 6th, 1843; and that in June, 1845, he leased to Vanderen, who has ever since been in possession under the said S. S. Gregory; and Brown denies that the complainant has been in possession since he, Brown, conveyed, as aforesaid, to S. S. Gregory. Brown further states that, when he sold to S. S. Gregory, he took his bond and mortgage for the purchase money, and that S. S. Gregory made default of payment; and that he, Brown, foreclosed the mortgage, and obtained the decree for the sale of the premises; and that the same was sold accordingly; and that he bought them at the sale; and that his action of ejectment, which was restrained, was founded on the deed he obtained for the premioes under the said decree. This is a part of the case which the bill did not give, and which can hardly be supposed to have been unknown to the complainant. As to the repairs and improvements, the bill does xxot state when they were made. If they wex’e made after the deed from Brown to S. S, Gx’egoi’y, the making them would go to show the probable truth of the statement made by Brown, that the deed from him to S. S. Gregory was made with the approbation of the complainant; and to show that the deed from Brown to the complainant’s father was probably for the complainant’s benefit. Again, the complainant had the use of the property three years before the conveyence from Brown to S. S. Gregory. How much was done, in the way of repairs and improvements, within that period, aud how much after the deed to S. S. Gregory, we are not informed.

Injunction dissolved.  