
    St. John and Others v. Freeman.
    
      Friday, June 2.
    
    
      A., the holder of a bond for the conveyance of a certain tract of land, assigned said bond to B., as a security for money advanced. B. permitted A. to place the bond in the hands of C., to be held as collateral security for a debt which he owed him. While it was in the hands of C., the assignment to 13. was stricken out, without his knowledge, and a new assignment made to C., D., and E., to secure debts which A. owed them. A. paid the purchase money, and C., D., and E., procured the conveyance of the land from the obligor to themselves, and the bond was cancelled. B. filed his bill in chancery against G., E., and E., to set aside the conveyance and vest the title in nimself, and obtained a decree to that effect. It was proved that A. continued in possession of the land after the assignment to B., offering to sell it with the knowledge and consent of B. Held, that the assignment to B. only amounted to an equitable security, or a mortgage for the advancements he had made. Held, also, that B. should have proceeded as in the case of a mortgage, and made A., or his representatives, parties.
    ERROR to the Franklin Circuit Court.
   Smith, J.

John Freeman, the defendant in error, filed a bill of complaint against John Semour, Bcrryan La Rue, John Daniels, Jeremiah O. St. John, Croker Snow, Mason D. Hade and Jacob Jj. Sailors, the plaintiffs in error. Pie alleges that in the year 1839, Semour, having contracted for the sale of certain real estate to one Sa?miel Snyder, executed to him a bond for a conveyance, to be made when certain notes, due by John Daniels and assigned by Snyder to Semour, should be paid. That at divers times he advanced to said Snyder, who was his son-in-law, large sums of money, and that, in consideration thereof, Snyder, by endorsement, assigned to him all the right, interest, and claim, the former had in said bond. That Snyder was indebted to La Rue to the amount of sixty or seventy dollars, for the payment of which debt one James Snyder, who was also a son-in-law of the complainant, had became security, and at the solicitation of the said Samuel and James, he delivered to them said bond, so assigned, to be placed in the hands of La Rue and to be held by him as collateral security for the payment of his debt. That afterwards, on the 13th of October, 1842, La Rue, without the knowledge or consent of the complainant, permitted Samuel Snyder to strike out the assignment previously made and make an assignment to La Rue, Daniels, and Si. John, for the pretended consideration of one hundred and thirty-five dollars. That the complainant had paid the debt due to La Rue, and that the consideration upon which the bond was made by Semour had been paid to him. That, on the 3d of November, 1842, the complainant still being ignorant of the assignment to them, La Rue, Daniels, and St. John procured from Semour a conveyance of the land and delivered the bond to him to be cancelled. That Samuel Snyder died in the spring of 1844, and that Snoio, Haile, and Sailors had obtained judgments against St. John and Daniels.

The bill prays a decree ordering the conveyance to La Rue, Daniels, and St. John and the lien of the judgments to be set aside, and directing Semour to make a deed to the complainant.

The cause was heard on bill, answers, exhibits, and depositions, and a decree rendered in accordance with the prayer of the bill.

La Rue admits that his debt was paid after the conveyance had been made by Semour, and claims no interest in the matters in controversy.

Daniels denies that advancements were made by Freeman to Samuel Snyder and insists that the assignment to the former was fraudulent, and made to evade the claims of creditors of the latter. He says Snyder was justly indebted to him between one hundred and thirty and one hundred and forty dollars, and made the assignment to secure the payment thereof; that the conveyance was procured by the direction of said Snyder, and with his consent, and that no part of his debt had been paid.

St. John says Samuel Snyder was indebted to him seventy dollars, and also for taxes upon the premises which he (St. John) paid. In other respects his ansAver is to the same effect as that of Daniels.

The record furnishes no copy of the assignment to Freeman. It appears by the depositions that the latter advanced sums of money to Samuel Snyder, at different times, and had taken notes for their repayment. These notes had not been taken up and cancelled when the latter assigned the bond to him. Freeman continued to hold both the notes and bond, looking upon the land as a security for the repayment to him of the money he had advanced. Snyder continued in the possession of the premises after the assignment, receiving the rents and offering to sell with the knowledge and consent of Freeman. These facts, with others AAdiich are disclosed by the depositions, prove, that the assignment to Freeman was not intended as an absolute sale to him of the interest of Snyder, but that it amounted only to a mortgage or equitable security for the advancements he had made, and which he expected to be repaid. The assignment to La Rue, Daniels, and St. John was of the same character, but if they received it with knowledge of the previous assignment to Freeman, they must be considered as occupying the position of junior mortgagees.

Irrespective of the question of priority, the decree giving an absolute title to Freeman is erroneous. He should have proceeded as in the case of a mortgage, making the, persons interested in the estate of Samuel Snyder parties, so that the amount of the indebtedness of the latter could be definitely ascertained, and his interest in the premises purchased of Semour appropriated to the payment of the debts to secure which the assignments had been made, in their proper order. See Crumbaugh v. Smock, 1 Blackf. 305. — Holcroft v. Hunter, 3 Blackf. 147.— Miller v. Tipton, 6 Blackf. 238.

G. Holland, for the plaintiffs.

J. A. Matson, for the defendant.

Per Curiam.

The decree is reversed. Cause remanded, &c.  