McClain's Executors v. Babbitt

Supreme Court of New Jersey

McClain's Executors v. Babbitt

48 A. 543, 62 N.J. Eq. 753, 1900 N.J. LEXIS 228

DecidedMarch 4, 1901

StatusPublished

This text of 48 A. 543 (McClain's Executors v. Babbitt) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McClain's Executors v. Babbitt, 48 A. 543, 62 N.J. Eq. 753, 1900 N.J. LEXIS 228 (N.J. 1901).

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Opinion

The opinion of the court was delivered by

Garrison, J.

McClain and Duprat each had a mortgage upon the same chattels. In a suit to foreclose these mortgages it was stipulated by the respective solicitors, R. T. & W. B. Stout and Babbitt & Lawrence, that McClain was entitled to sixty-five per cent, and Duprat to thirty-five per cent, of the value of the security, and that the chattels should be sold at public sale, and that such of them as were not bid up to a fair price should be bought in and be sold at private sale, and that the proceeds (over and above [757]*757certain prior encumbrances) should be divided between McClain and Duprat in the above ratio. The public sale was had and some of the articles were bought in. The entire net proceeds of the public sale were paid to the appellants, Babbitt & Lawrence; the articles bought in went into the hands of K. T. & W. B. Stout, to be sold by them at private sale. The bill was filed by McClain, and prayed that Babbitt & Lawrence be required to account for the money that came into their hands and to pay over sixty-five per cent, of it to the complainant, and that R. T. & W. B. Stout be required to do likewise with respect to the fund in their hands. The bill was not objected to upon the ground of multifariousness, but the appellants 'contended that their client, Duprat, was a necessary party, and tHey also sought to file a cross-bill attacking the resale of the goods by R. T. & W. B. Stout .and calling upon them for an account.

The opinions delivered in the court of chancery dispose satisfactorily of the questions that are presented by this appeal. These are that the suit was against the appellants and R. T. & W. B. Stout severally and in their personal capacity, and that, in the sale of the goods, they had acted in that character, and not as representatives of their respective clients; that their legal attitude was that of trustees, with respect to the money or property each had taken into his possession; that the complainant was entitled to an aliquot part of each trust, and that the client of the appellants was not a necessary party.

The chancellor also properly decided that these appellants were not interested in the relation between the complainant and the other trustees as to the fund in their hands, and hence could not, by cross-bill, call upon them for an accounting.

The decree of the chancellor is affirmed, with costs.

For affirmance — The Chancellor, Chile-Justice, Van Syckel, Dixon, Garrison, Gummere, Fort, Garretson, Hendrickson, Bqgert, Krueger, Adams, Vredenburgh, Voorhees For reversal—None.

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The opinion of the court was delivered by

Garrison, J.

McClain and Duprat each had a mortgage upon the same chattels. In a suit to foreclose these mortgages it was stipulated by the respective solicitors, R. T. & W. B. Stout and Babbitt & Lawrence, that McClain was entitled to sixty-five per cent, and Duprat to thirty-five per cent, of the value of the security, and that the chattels should be sold at public sale, and that such of them as were not bid up to a fair price should be bought in and be sold at private sale, and that the proceeds (over and above [757]*757certain prior encumbrances) should be divided between McClain and Duprat in the above ratio. The public sale was had and some of the articles were bought in. The entire net proceeds of the public sale were paid to the appellants, Babbitt & Lawrence; the articles bought in went into the hands of K. T. & W. B. Stout, to be sold by them at private sale. The bill was filed by McClain, and prayed that Babbitt & Lawrence be required to account for the money that came into their hands and to pay over sixty-five per cent, of it to the complainant, and that R. T. & W. B. Stout be required to do likewise with respect to the fund in their hands. The bill was not objected to upon the ground of multifariousness, but the appellants 'contended that their client, Duprat, was a necessary party, and tHey also sought to file a cross-bill attacking the resale of the goods by R. T. & W. B. Stout .and calling upon them for an account.

The opinions delivered in the court of chancery dispose satisfactorily of the questions that are presented by this appeal. These are that the suit was against the appellants and R. T. & W. B. Stout severally and in their personal capacity, and that, in the sale of the goods, they had acted in that character, and not as representatives of their respective clients; that their legal attitude was that of trustees, with respect to the money or property each had taken into his possession; that the complainant was entitled to an aliquot part of each trust, and that the client of the appellants was not a necessary party.

The chancellor also properly decided that these appellants were not interested in the relation between the complainant and the other trustees as to the fund in their hands, and hence could not, by cross-bill, call upon them for an accounting.

The decree of the chancellor is affirmed, with costs.

For affirmance — The Chancellor, Chile-Justice, Van Syckel, Dixon, Garrison, Gummere, Fort, Garretson, Hendrickson, Bqgert, Krueger, Adams, Vredenburgh, Voorhees For reversal—None.

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Bluebook (online)

48 A. 543, 62 N.J. Eq. 753, 1900 N.J. LEXIS 228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcclains-executors-v-babbitt-nj-1901.