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the cestui que trust and the assignor by the bond of the trustees, the inventory and appraisement, and the supervisory control of the chancellor, and not as validating assignments otherwise illegal, or as in any wise altering existing laws regulating the capacity on the part of debtors to create such trusts, or as declaring the effect of such trusts when attempted to be made between the debtor and his voluntary assignee, without the privity or assent of his creditors. Decree accordingly."

On Motion to Dismiss Appeal. PER CURIAM. Appeal dismissed.

FULTON v. HARRINGTON et al. (Court of Errors and Appeals of Delaware. Jan. 7, 1885.)

PAYMENT OF JUDGMENT EFFECT AS AGAINST SURETY-RIGHTS OF SURETY SUBROGATION WAIVER OF LIEN-TAKING INDEPENDENT SECURITY.

1. A judgment was rendered against a principal and his surety, jointly, and the sheriff's sale of sufficient of the surety's land to pay the judgment was confirmed; and the judgment creditor, being paid, assigned the judgment to the surety. Held, that the judgment, at the time of its assignment, was functus officio, and the surety acquired, as assignee, no rights, either legal or equitable.

2. Lands of A. were sold to satisfy judgments in which he was surety for B., and lands of B. were sold to satisfy a judgment in which he was surety for A. The amount paid by A. for B. was greater that the amount paid by B. for A. Held, that B.'s right to subrogation under the judgment paid by him as surety for A. depended on the general balance of accounts between them, and therefore an assignee of B.'s interest in such judgment acquired no claim against A.

3. The taking by an attorney of any independent security, to secure payment of his fee, waives his lien, even though the security proves unavailable.

Appeal from chancery court, Kent county. Suit by Moses Harrington and another against J. Alexander Fulton to restrain the prosecution of an action at law. There was a judgment for complainants, and defendant appeals. Affirmed.

J. Alexander Fulton, in pro. per. Edward Ridgely and James L. Wolcott, for respondents.

WHITELY, J. Henry Todd became the surety for William A. Atkinson in a judgment in the superior court for Kent county, at the suit of E. J. Stout, for real debt of $1,230. Interest from September 27, 1866. Entered September 27, 1866. Atkinson became surety for Todd in four several judgments in said court: One at suit of Farmers' Bank, real debt, $1,000. Interest from April 1, 1869. Entered November 7, 1871. three others at the suit of the Citizens' Building & Loan Association of Dover: One for real debt, $500. Interest from April 12, 1873. Entered November 3, 1873. Another for real

And

debt, $1,100. Interest from October 11, 1873. Entered November 3, 1873. And the other for real debt, $400. Interest from December 3, 1873. Entered December 22, 1873. Todd's lands were sold by Peter L. Cooper, Esq., then sheriff, on the 14th and 21st days of March, 1876; and, at the April term, following, of said superior court, he applied, out of the proceeds of said sale, $1,370.24 to the judgment of Stout. Atkinson's lands were sold by Francis M. Dunn, then sheriff, on April 12, 1881; and at the following term of said court he applied the sum of $2,555.27 to the said four judgments, at the suit of the Farmers' Bank and the Citizens' Building & Loan Association of Dover. The amount paid by or out of the lands of Atkinson, as surety for Todd, exceeded by $1,185.03 the amount paid by or out of the lands of Todd, as surety for Atkinson. But by the allowance of interest on the amount of the Stout judgment from the confirmation of the sale of Todd's lands to the time of the confirmation of the sale of Atkinson's lands, a period of five years, this excess is reduced to the sum of $773.96. In 1869, J. Alexander Fulton became surety for Todd to the Farmers' Bank for $3,000, which sum he, as such surety, paid to the bank. He was also surety for Todd to other persons. He has never been reimbursed, in whole or in part, for the amount paid the bank.

On the 16th day of March, 1877, Todd executed and delivered the following paper to Fulton and Atkinson: "In Chancery. Levi H. Miller v. Emanuel J. Stout, Wilson L. Cannon, Henry Todd, and William A. Atkinson. Whereas, I, Henry Todd, one of the defendants above named, am only surety for William A. Atkinson in the judgment mentioned in the bill of complaint of Levi H. Miller, filed in this cause in favor of Emanuel J. Stout, being No. 173, April term, 1866 (J. D. 11, p. 495), for $1,230.00, with interest, and, upon payment thereof out of the proceeds of sale of my real estate, would be entitled to be subrogated to the rights of the plaintiff therein, as against William A. Atkinson, the principal; and whereas, the said William A. Atkinson and J. Alexander Fulton are my sureties in various matters, especially both of them to the Farmers' Bank, and the said Fulton also to Susan A. Raymond, now deceased, in sums much larger than the said judgment; and whereas, I am desirous to secure my said sureties, so far as I may be able, and protect them from loss: Now, know all men by these presents that I, Henry Todd, of Dover, Delaware, in consideration of the premises, do hereby assign, transfer, and set over to the said William A. Atkinson and J. Alexander Fulton, their executors, administrators, and assigns, in equal proportions, the said judgment of Emanuel J. Stout against me and the said Atkinson, and all my interest therein and all remedies thereon, and especially the right to be subrogated to the rights of the plaintiff, upon

its being paid out of the proceeds of the sale of my real estate, subject, however, in all respects, to any order or decree the chancellor may make in the case above entitled. Witness my hand and seal this 16th day of March, A. D. 1877. Attest: H. Todd. [Seal.]" On the 23d of March, 1880, Emanuel J. Stout assigned the said judgment to the said Todd; and, on the same day, Todd assigned one-half thereof to the said Fulton.

Moses Harrington, one of the respondents, before the sale of Atkinson's lands, was a lien creditor of Atkinson, viz.: (1) A judgment of Farmers' Bank against Todd and Atkinson; the latter, as surety for Todd. Real debt, $1,000. Interest from April 1, 1869. Entered November 7, 1871. Assigned to Harrington, March 16, 1880, by the bank. (2) In a mortgage for real debt of $775.50, with interest from September 7, 1876, assigned to him by Farmers' Bank. (3) And in a judgment wherein he is plaintiff. Real debt, $2,376.23. Interest from April 12, 1876. Entered May 16, 1876. Francis M. Dunn, sheriff, in the application of the proceeds of the sale of Atkinson's lands, passed the said Stout judgment, and applied such proceeds to the liens against Atkinson, in the order of their priority. In such application, the sum of $345.52 was applied to the lastnamed judgment of Harrington, in part payment thereof. Fulton then brought suit in said superior court on the official recognizance of Dunn, for an alleged misapplication of the proceeds of said sale,-in not paying him one-half of the Stout judgment,to restrain which suit the bill in this case was filed. The chancellor decreed that the injunction should be perpetual, from which decree Fulton appealed to this court.

Todd and Atkinson were both insolvent several years before commencement of this suit. We do not see how Fulton, under either of the assignments, could have any redress at law, or had thereby any status, by virtue of which he could recover against Sheriff Dunn, when Atkinson's lands were sold, and the money arising thereby was not applied by the sheriff to the payment of the Stout judgment. The judgment was entered jointly against Atkinson and Todd. At law, they were both considered as principals; and Sheriff Cooper did what the law compelled him to do, when he paid the judgment out of the sale of Todd's lands. Again, when Todd's lands were sold by the sheriff, and on confirmation of the sale by the court, the sale, ipso facto, satisfied the judgment, as it was the leading judgment against Todd, and there was in the sheriff's hands more than sufficient to pay it; and, if the sheriff had not paid it to Stout, his only remedy and redress would have been by suit upon the sheriff's official recognizance. Upon confirmation of the sale, the lien of the judgment upon any and all of the lands of both Atkinson and Todd was removed. But, in addition, the judgment was actually paid by the sher

iff to Stout. So then, when Stout undertook, in 1880, to assign this judgment to Todd, who then assigned to Fulton, he had no judg ment to assign. It was gone by payment. It was dead. It was functus officio. We therefore do not think that Todd, as assignee of Stout, nor Fulton, as assignee of Todd, took any right, legal or equitable, under the assignment or transfer of this Stout judgment.

As regards the assignment by Todd to Fulton and Atkinson, dated March 16, 1877, of the Stout judgment, the appellant does not claim in his answer to the respondents' bill, nor did he in his argument, that it conveyed to them any legal title or rights, such as could be enforced at law. Nor could he do so. Todd was defendant in this judgment, -a co-obligor with Atkinson in the bond by virtue of which the judgment was entered; and unless he had previously obtained from Stout an assignment (under our act of assembly, in reference to "Principal and Surety") to himself, as surety, he could, by no device, assign or transfer the judgment. But as an equitable assignment of whatever his rights or equities were, as against Atkinson, on account of his being Atkinson's surety, and that Atkinson's debt to Stout was paid out to the proceeds of the sale of his lands, we think it good and valid. We do not consider it an assignment of the judgment, but an assignment of Todd's rights, priorities, and remedies under and on account of it, and transfers to Fulton whatever equitable rights, etc., Todd possessed; and, if there were no superior and countervailing equities upon the part of Atkinson against Todd, the appellant, as assignee, could recover in a court of equity, against Atkinson, whatever Todd himself could recover. Atkinson was surety for Todd in four judgments for an amount greater than the amount of the Stout judgment, and he had been compelled to pay this money to Todd's creditors. He was therefore entitled to be reimbursed if Todd could do it. "In equity, as soon as a surety pays the debt of his principal, he is considered as subrogated to all the rights, remedies, and securities of the creditor, as substituted in the place of the creditor, and entitled to enforce all his liens, priorities, and means of payment, as against the principal." As we have said, if Todd had paid the Stout judgment, he could, under our act of assembly, have taken an assignment of it from Stout; and, if the requirements of the act had been strictly followed, he would have been substituted in place of Stout as plaintiff, and would have held the judgment as a lien against Atkinson's land as firmly and effectually as Stout did. The lien against Atkinson would thus have been preserved, and, when Atkinson's lands were sold by Sheriff Dunn, this judgment would have to have been paid in its order. Now, what the law does by virtue of this act of assembly, equity does by subrogation; and therefore,

if there was nothing more in this case than that Todd was security for Atkinson in this Stout judgment,-no countervailing equities upon the part of Atkinson,-a court of equity would have given Todd the benefit of the lien of that judgment upon Atkinson's lands, in preference to subsequent judgment or mortgage creditors of Atkinson. This is what is called "subrogation."

How, then, stand the equities between Todd and Atkinson? This is the gist of this case. As has been seen, Todd was the surety for Atkinson in the Stout judgment, and when his lands were sold by Sheriff Cooper the sheriff paid, out of the proceeds of sale, $1,370.24 to Stout. Atkinson was surety for Todd in four small judgments, and when his lands were sold by Sheriff Dunn the sheriff paid, out of the proceeds of sale, $2,555.27 to the plaintiffs in these judgments (an excess in favor of Atkinson of $1,184.03); but this amount was reduced to $773.96 by allowing Todd interest on the sum paid from the sale of his lands, from the date of the sale of his lands to the sale of Atkinson's lands,-a period of five years. Atkinson had thus paid for Todd $773.96 more than Todd had paid for him. Does it need the citation of authorities to convince us that Todd cannot call, nor can any assignee of his call, upon Atkinson to repay him the Stout judgment, until he (Todd) has paid Atkinson the amount of the four judgments in which he was his (Todd's) surety? Is it not "everyday equity" that a man must pay his own debt before he can collect from his creditor a debt due him?

As was said by the counsel for the respondents in their argument, "does not the equity between principal and surety depend entirely upon the rights of the surety against the principal, and is limited to the balance of the general accounts between them?" Would any other rule be equity? Judge Bell, of the supreme court of Pennsylvania, in the case of Neff v. Miller, 8 Pa. St. 347,-a case very similar to the one before us,--in delivering the opinion of the court, said: "Here is a surety whose money has been applied in the payment of the debt of his principal, to the exclusion of his own proper creditors. That he would be entitled to come in, by way of substitution, upon the estate of his principal, is everyday equity. And, did the case stop here, the Messrs. Neff would be entitled to be subrogated to the original rights of the holder of the Givin judgment, to the amount which would have been properly applicable in the payment of the Smith judgment, had not Givin's judgment interfered. But Miller claims that Isaac Neff (surety for Miller) was indebted to him in a certain amount, which, being deducted from the amount of Givin's judgment, leaves due to Neff but the sum of $1,648.84. If so, this limits to that amount, at furthest, the equitable right of John and Jacob Neff (the sureties of Isaac Neff, and who had paid for him the Smith judgment) as holders of the Smith judgment; for, as we

have seen, this equity is only coextensive with the sum in which Miller stands indebted to Isaac Neff in transactions and proceedings which have had place between them. If, at the time of the appropriation of Neff's estate to the payment of the Givin judgment, Neff was indebted to Miller in the full amount, there would be nothing upon which the right of subrogation would attach. So the operation of this right is curtailed in proportion as Neff stands indebted to Miller, for it is only beyond this that he has suffered injury by the neglect to satisfy the joint judgment. And in the case of Coates's Appeal, 7 Watts & S. 99, in the same court, Kennedy,. J., in delivering the opinion of the court, said: "But the right of subrogation rests on principles of pure equity, and ought never tobe granted to a party where it appears that he is indebted, on any account, in an equal, less, or greater amount, to the person against whom the judgment exists, to which he asks. to be substituted as plaintiff, without first satisfying such indebtedness." This is so well settled as an equitable principle that the further citation of authorities would appear unnecessary. We refer, however, to Huston's Appeal, 69 Pa. St. 485; Lloyd v. Galbraith, 32 Pa. St. 103; McGinnis' Appeal, 16. Pa. St. 445; Keely v. Cassidy, 93 Pa. St. 318; Patterson v. Pope, 5 Dana, 241; Erb's Appeal, 2 Pen. & W. 296; Goswiler's Estate, 3 Pen. & W. 200; Kyner v. Kyner, 6 Watts, 221-227; Bank v. Potius, 10 Watts, 148; Bank v. Edwards, 1 Gill & J. 346, 365; Hardcastle v. Bank, 1 Har. (Del.) 374, 378, note. When a part of the proceeds of the sale of Todd's lands, in 1876, was taken to pay Atkinson's debt, Atkinson, as we have seen, was then surety for Todd in a sum greater than that for which Todd was surety for him, to wit, in an excess of $773.96. And when, in 1881, Atkinson's lands were sold, the judgments against Todd, with Atkinson. as surety, were paid out of the proceeds of sale. Such being the case, the appellant has failed to show us what it was that Todd, or he, as assignee, could be subrogated to. There was nothing, in fact, upon which the right of subrogation could attach; for, as Bell, J., said in the case of Neff v. Miller, "This equity-the right of subrogation-is only coextensive with the sum in which Miller [Atkinson, in this case] stands indebted toIsaac Neff [Todd, in this case] in transactions and proceedings which have had place between them." And as the indebtedness is the other way, from Todd to Atkinson, there can be no subrogation in favor of Todd, in any shape, way, or form; but it should be in favor of Atkinson, if there was any thing upon which it could attach.

Another matter. How has Todd been injured? The appellant failed to show this, jured? also. In fact, it was impossible for him to do so, as the sum Todd paid for Atkinson was less than that which Atkinson paid for him. He who paid the most is the one who was

i

injured, and a court of equity will always balance the account. We are therefore of opinion that the appellant took nothing by the assignment of Todd to him, of March 16, 1877.

But the appellant claims "that, in addition to his right as assignee of Stout and Todd, he had a lien upon the fund as attorney for Atkinson in his suit with Miller, by which it was saved to Atkinson's estate." We cannot, however, appreciate the argument upon the behalf of any agent-attorney or otherthat he can have a lien upon a fund with which he had no part in its creation, collection, or preservation, and which was never in his possession. The appellant had no relation to or connection with the making and executing of the bonds given by Atkinson and Todd to their several creditors, or the entry of judgments thereon, nor to the collection thereof by execution process. He was not the attorney of Atkinson in any one of the cases. The fund arising from the sheriff's sale of Atkinson's lands was never in his hands, nor could it have been, legally. If he could have a lien upon a fund arising in the manner stated, why could not any merchant or nechanic have a lien also upon it for goods sold or work done? But if the appellant had, by any possibility, a lien, he waived it by taking the assignments of Stout and Todd. The undisputed rule is that the taking of any distinct and independent security waives the lien, and it is no matter whether the security is available or not. Good or bad, it opens his hands, and lets the goods or fund held go. Let a decree be drawn, affirming the decision of the chancellor.

KENDALL v. HATHAWAY et al. (two cases). (Supreme Court of Vermont. Windsor. Dec. 3, 1894.)

MORTGAGES-FIXTURES.

1. R. L. & 1980, allowing "machinery attached to, or used in, a shop. mill, printing office or factory," to be mortgaged as realty, does not apply to a case where machinery was set up subsequent to and not mentioned in a mortgage of the realty whereto it is attached.

2. A shingle mill and a cider mill, standing on legs, held in place by their own weight, and not attached to the mortgaged building otherwise than by belts connecting them with the motive power, and a circular saw mill not permanently attached, all being so placed as to be removable without injury to themselves or to the building, are not fixtures.

3. The fact that owners of unmortgaged machinery removed it only to prevent its seizure under a mortgage of the building wherein it was set up does not affect their right to remove it as determined by the manner of its attachment to the building.

Exceptions from Windsor county court; Thompson, Judge.

Trover by W. M. Kendall against D. B. Hathaway, David Hathaway, and others for a shingle mill. Replevin by the same plain

tiff against D. B. Hathaway and others for a saw mill and a cider mill. Judgment for defendants, and plaintiff excepts. Affirmed.

The plaintiff owned a farm which he sold to one Tracy, who mortgaged back for the purchase money. Subsequently, Tracy sold a small piece to the defendants, which he conveyed by warranty deed, and upon which they built a mill. The property in question was put into this mill by them, and used there. The plaintiff foreclosed his mortgage, and, when it became certain that the defendants' mill must pass under the decree, they removed from it the property in suit.

James G. Harvey and William Batchelder, for plaintiff. William E. Johnson, for defendants.

ROSS, C. J. These cases were heard together. The first named is replevin, and the last, trover. The parties in interest are the same in both cases. The first is to recover a circular saw mill, a cider mill, and some machinery. The second is to recover for a shingle machine. The rights of plaintiff to the property in both suits, if any, are derived from a mortgage of a farm, from the grantor of the defendants Hathaway, executed in 1866. At that time the part of the farm on which the property sued for was afterwards placed and used was unimproved, and the mortgage contains no words descriptive of the property in controversy, subsequently placed thereon by the Hathaways. Hence the plaintiff's rights to the property in controversy are to be determined upon the basis. of whether the property, on the facts found, was real estate.

Although in 1860 the statute was enacted (now R. L. § 1980) allowing "machinery attached to, or used in, a shop, mill, printing office or factory," to be mortgaged by a deed executed as required for the conveyance of real estate, that statute is not applicable, inasmuch as, when the mortgage determinative of the plaintiff's rights was executed, the machinery in controversy did not exist, and is not alluded to in the mortgage. The defendants Hathaway purchased a small piece of the land covered by the plaintiff's mortgage from the mortgagor in 1871, took a duly-executed warranty deed thereof, created a water power, and erected a saw mill and grist mill thereon. The other defendants stand upon the rights of the Hathaways. Hence the controversy involved in these suits. is to be determined by the law established by the decisions of this court as existing between mortgagor and mortgagee, without reference to the law of 1860, providing for the mortgage of machinery. There was no machinery in existence, and no attempt to describe or mortgage any, when the mortgageunder which the rights of the plaintiff and defendants are to be determined was executed.

The contention is narrowed to whether, un

der the decisions of this court, the property | sued for was fixtures or personal property. If any of it, on the facts found, had become a fixture, the plaintiff can recover for it. This is his only right of recovery. The decisions of other courts, at variance with the decisions of this court, cannot control. The decisions of this court on this subject are of so long standing and of so frequent occurrence that they have became rules of property, presumably acted upon by parties; and, if in conflict with the decisions of other courts, to reverse them would disturb and overthrow rights of property. The decisions of this court determinative of the relative rights of the mortgagor and mortgagee to machines and machinery, when not controlled by the words used, descriptive of the property intended to be conveyed, are Tobias v. Francis, 3 Vt. 431; Sturgis v. Warren, 11 Vt. 433; Hill v. Wentworth, 28 Vt. 428; Fullam v. Stearns, 30 Vt. 443; Bartlett v. Wood, 32 Vt. 372; Harris v. Haynes, 34 Vt. 224; Davenport v. Shants, 43 Vt. 546; Newhall v. Kinney, 56 Vt. 591; Hackett v. Amsden, 57 Vt. 432; and perhaps some other cases in which the question has been incidentally touched upon. Unless controlled by the language of the deed descriptive of the property intended to be conveyed, or by language which brings it within the statute allowing machinery to be mortgaged, there is no couflict in the prin ciples governing these decisions. This principle is as fully stated and summarized in Harris v. Haynes, 34 Vt. 225, as in any of the cases. It is there stated as follows: "It is sufficient to say that the leading principle resulting from those decisions is that actual annexation to the freehold, and adaptation to its purposes, is not sufficient to convert chattels into fixtures, unless they are fastened in such a manner as to show an intention to incorporate them firmly with the inheritance; and that if articles of machinery used in a factory for manufacturing purposes are only attached to the buildings to keep them steady and in their place, so that their use, as chattels, may be more beneficial, and are attached in such a way that they can be removed without any essential injury to the freehold or to the articles themselves, they still remain personal property." The announcement of this principle followed the decisions of Hill v. Wentworth, of Fullam v. Stearns, and of Bartlett v. Wood, in which the question of what was necessary to be done by the owner of a personal chattel to incorporate it into the freehold, so that it would become a fixture or part of the freehold, had been fully discussed, considered, and determined, with reference to a great variety of machines used in buildings erected and used for various manufacturing purposes. The circular saw mill and parts connected therewith, the shingle machine, and the cider mill was each a machine or personal chattel before it was set up by the Hathaways in their mill. The grist mill, though

named in the replevin suit, was not replevied, and is not for consideration here. The shingle mill and the cider mill stood upon legs. and were held in place by their own weight. They were not attached to the building otherwise than by being connected with the motive power by belts. The circular saw mill and parts connected therewith were not permanently attached to the building. All were so placed and constructed that they could be removed without injury to themselves and without injury to the building. They could be used with equal facility in any building where suitable power could be obtained. The building itself could be refitted with similar machines. These were all placed in the building by the Hathaways, for use only so long as they might desire. They were removed by them with the intent and purpose of using them in another building. The finding that the Hathaways had no specific intention of removing these machines and parts connected therewith until made aware that their water power, mill, and everything contained therein would be taken in payment of a debt which they never contracted nor were liable to pay, unless they then removed these machines, does not vary their legal right to remove them while lawfully in possession of the property, as established by the character of the machines and connected parts, fixed and determined by the manner in which they were connected with the freehold. As considered and shown in Fullam v. Stearns, 30 Vt. 443, between the mortgagor and mortgagee and the creditors of the latter the manner in which such machines are annexed to the freehold determines whether they remain personal chattels, or have been converted into fixtures. Until the law allowing machinery to be mortgaged, the creditor and his officer could determine whether the machine remained a personal chattel, or had become a fixture, only from the character of the machine, the manner of its attachment to the freehold, and whether it could be removed without substantial injury to itself and to the freehold, and whether it was equally well adapted for use in any other building equipped with proper motive power. Upon these principles, on the facts found, the property in controversy in both suits must be held to be personal chattels, which the Hathaways had the right to remove. Judgment affirmed.

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