FITZSIM- judgment to G. Morris, requested him also to forward MONS & to him the form of a release to be executed by his OTHERS father.

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OCDEN & In pursuance of the arrangement which had been OTHERS. agreed upon between these parties as above mentioned, all the lands which R. Morris had purchased from the state of Massachusetts in the county of Ontario were advertised to be sold under the said judgment, on the 6th of February, 1800. Hoops, as it had been agreed, attended on the day of sale and bid for the land; but being overbid and not having the means to pay for the same in case it should be struck off to him, he prevailed upon the sheriff to adjourn the sale to the 13th of May following, upon bis engaging to pay the sheriff his poundage, which undertaking G. Morris, soon afterwards, on application, furnished him with the means of discharging.

On the 22d of April, 1800, G. Morris, without having communicated to R. Morris or to the trustees the slightest intimation that he had come to such a determination, assigned over the said judgment to the Holland company for a full consideration paid therefor, and without notice, as they, the Holland company, expressly allege in their answer, of the claim of the trustees or of the equity stated in their bill.

The same day, articles of agreement were entered into between. Thomas L. Ogden....the Holland company.... and G. Morris; by which it was stipulated that the sale of all the lands by the execution on the aforesaid judgment, should take place, and should be purchased by the said Ogden in trust to convey to the Holland company the several tracts of land which had been granted to them by R. Morris, and to the several persons to whom conveyances had been made within the limits of the 500,000 acre tract prior to the deed to the trustees, the tracts to which they were respectively entitled, or such parts thereof as three persons, Hamilton, Cooper and Ogden should direct; and as to the residue of the said 500,000, in trust to convey the same to such persons, in such parcels and upon such terms as the said Hamilton and others should direct. In execution of this agreement, Ogden attended the sale on the 13th of May,

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and purchased the whole of the lands taken in execution FITZSIXunder the said judgment for the sum of $5,200 and re- MONS & ceived a sheriff's deed, for the same. Hamilton, Cooper OTHERS and Ogden, in virtue of the powers vested in them, directed conveyances to be made by Ogden to the Holland OGDEN & company according to the bounds expressed in the seve- OTHERs. ral conveyances to them by R. Morris, except so far as such bounds would interfere with Watson, Cragie and Greenleaf. In order to compensate the defendants, Samuel Ogden, sir William Pulteney and John B. Church for the land taken on the westward of their tracts, by fixing the true meridian line of the Holland company to the east, the eastern line of those persons is made to run in upon the lands claimed by the trustees, so far as to give the former the full quantity of land mentioned in their respective conveyances. The direction, or award as it is called, then proceeds to allot to the trustees 58,570 acres (not half the quantity they claimed) upon certain conditions, one of which is to pay to the said trustee, for the use of the Holland company, 8 5,628 with interest from the 22d of January, 1800. This sum together with others charged upon such of the grantees as were benefited by this arrangement, were intended to reimburse the Holland company, the sums they had advanced, not only for the purchase of Talbot and Allum's judgment, but of another, which, being posterior to the conveyance to the trustees, created, of course, no lien upon any part of the 500,000 acre tract.

The prayer of the bill is for a conveyance by Thomas L. Ogden, of all the land to which the trustees are entitled according to its real boundaries, upon the trustees paying such proportion of the money due by Talbot and Allum's judgment as is fairly chargeable on their land, and for general relief.

This cause was argued at great length in February, 1810, by Pendleton and Lewis for the Complainants, and by Edwards and for the Defendants; and again at this term by Joseph R. Ingersoll, E. Tilghman, P. B. Key and Lewis for the Complainants, and by D. B. Ogden and Stockton for the Defendants.

For the Complainants, it was contended

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That Thomas L. Ogden, who purchased the land at MONS & the sheriff's sale under Talbot and Allum's judgment, OTHERS was, under all the circumstances of the case, to be con

v. sidered in equity, as a trustee for the Complainants, to OGDEN & the extent of their legal title before that sale....or in OTHERS. other words, that the sale was void as to the Complai

nants, and ought to be set aside upon the complainants, paying their proportion of the amount due upon the judgment, which was a lien upon two smaller tracts, as well as upon that which was claimed by the Complainants.

Thomas L. Ogden was the agent of the Holland company to whom Gouverneur Morris had assigned the judgment. This assignment having passed, not a legal, but an equitable right to a chose in action, was subject to the same equity in the hands of the Holland company, as it was in the hands of Gouverneur Morris, whether the Holland company had actual notice of that equity or not; because nothing but the equitable right of Gouverneur Morris passed by the assignment. The Holland company had no right to use it in any other way than he could have used it. They could make no use of it which he could not have made with a good conscience. They were bound by the same conscientious principles towards Robert Morris the elder and the Complainants, which ought to have guided Gouverneur Morris. Their agent, T. L. Ogden, could not give a better estate under the sale than G. Morris himself could, if he had continued to hold the judgment and had become the purchaser. The only equity which he had was to the extent of the security necessary to reimburse the money which he had advanced, at the request and for the use and benefit of Robert Morris. He merely became a creditor of Robert Morris with a lien upon the lands to the extent of the debt; which lien he held under a trust, a confidence, a plighted faith, that it should not be enforced to the injury of Robert Morris, or his assignees; and even that it should be used for the benefit of R. Morris or his assignees, as far as it could be used consistent with G. Morris's security as to the amount paid for the judgment. Indeed, as the only interest or equity which G. Morris had in the judgment was merely as a security sub modo for the amount due upon the judgment, the judgment as to every other use which could be made of it, consistent with the security of G. Morris, belonged

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to R. Morris; and G. Morris was bound in conscience FITZSIMand good faith to use it in such manner as R. Morris MONS & should direct. If therefore Gouverneur Morris, instead oTHERS of T. L. Ogden, had purchased the land under the judgment, he would have holden it merely as an indemnity, OGDEN & and as to every other purpose would have been a trustee OTHERS. for R. Morris or his assigns.

The facts, so far as the conscience of G. Morris was concerned in the case, are simply these. Robert Morris, the elder, knowing that the judgment threatened the validity of the deed of trust which he had made to the Complainants, who represented a class of creditors to whom he felt himself under peculiar obligations, entered into an engagement, through the agency of his son R. Morris, jun. to purchase the judgment for the purpose of holding it as a shield for the protection of the conveyance to the Complainants. Being unable to comply with the terms of the parchase, he requested Gouverneur Morris to advance the money due on the judgment, saying that he would thereby render him an essential service, and would be safe as the judgment was a lien upon a very large tract of land. To this, G. Morris assented, from motives of friendship, and to render his friend an essential service. How it was to have that effect, was not perhaps, at that time explained; but the natural inference was that the judgment, was to be subject to the control of R. Morris, as to every disposition of it consistant with the security and indemnity of G. Morris; who was bound in conscience, in honor, and in friendship, to have submitted it to his control. The disposition which be did make of it, was in violation of all these obligations, and therefore ought in equity to be set aside.

The Complainants had a right to tender the amount due, upon the judgment to G. Morris at any time. They knew that the judgment was a lien upon their lands, but they knew that there was a stay of execution until the 8th of June, 1800. Until that period they were safe....and Mr. R. Morris himself could not in equity release that stay so as to affect those lands without giving notice to the Complainants. It would have been a fraud if he had. They knew that the judgment had been assigned to G. Morris. They knew the circumstances under which that assignment was made. They knew the understandVOL. VII.

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FITZSIM- ing, the friendship, the confidence which subsisted be MONS & tween Gouverneur Morris and Robert Morris, the elder. OTHERS They had a right to rely upon it and to consider themselves as safe. They had a right to believe that no use OGDEN & would be made of the judgment without their knowledge. OTHERS. They knew of the release of the stay of execution, and that the release was made for their benefit. They were parties to the agreement under which it was made, they knew that this agreement had been made known to G. Morris and that he had acquiesced, if not assented. But neither his acquiesence nor assent was necessary, except as to the provision made for his indemnity :....for so far only was he interested. They knew that a sale for their benefit had been attempted under the judgment, but was postponed to a future day. They knew that the failure of this attempt and the postponement of the sale, were known to G. Morris, and that he had even paid the poundage demanded by the sheriff upon the postponement. He knew that all these things were so understood by the Complainants, and that they had this confidence in him, and were lulled into security. At this moment, without any notice, or intimation to the Complainants, he assigned over the judgment to the Holland company, for purposes which he knew to be repugnant to the interests of the Complainants. It is this of which the Plaintiff's complain as unconcientious and injurious; and the consequences of which they seek to avoid.

It is true that G. Morris himself cannot properly be charged as a trustee, because an equity cannot, with propriety, be said to be the subject of a trust, or to be holden in trust; for the equity will always be in the cestue que trust, and not in the trustee. But if G. Morris, under all these circumstances, had himself acquired the legal estate to the lands conveyed to the Complainants, he would have been a trustee for them, upon their paying or tendering him the money due by the judgment. He had no other equity to protect, and could not have protected his legal title under the equity of others. Nor had the Holland company any equity to protect. There were no interfering lines, nor any other cause of dispute between them and the Complainants. Their agent, Thomas L. Ogden, even after the sheriffs sale, was in no better situation than G. Morris would have been in, if he had been the purchaser. He had no right to claim