Opinion
(December Term, 1847.)
1. An equitable lien is neither a jus in re nor jus ad rem, but simply a right to possess and retain property until some charge attaching to it is paid or discharged.
2. A father made an advancement to one of his sons and took from him a covenant, by which he stipulated "that he would pay to his brothers and sisters, on a final settlement of his father's estate, without interest, whatever sum or sums of money he had received, if above his ratable part of said estate." Afterwards, the father borrowed a sum of money from his son (not equal to the amount advanced) and gave his bond for it: Held, that the brothers and sisters, not advanced, had no right to restrain the collection of this bond.
CASE transmitted from the Court of Equity of PERSON, at Fall Term, 1847, by consent of parties.
Norwood for plaintiffs.
E. G. Reade for defendants.
The plaintiffs are, together with the intestate, Thomas Webb, the children of the defendant Thomas Webb, Sr. The latter made advancement to his son Thomas to the amount of $2,552, and on 6 January, 1835, the deceased executed to his father a covenant, which is as (68) follows: "I do acknowledge the receipt of the above $2,552, from my father, Thomas Webb. I do promise to pay to my brothers and sisters, on a final settlement of said estate, without interest, whatever sum or sums of money I may have received, if any, above my ratable part of said estate. Given under my hand and seal," etc. On 18 December, 1843, Thomas Webb, the father, borrowed of his son Thomas the sum of $1,384.15, and to secure the payment of it executed his bond of that date, and payable one day thereafter. Thomas Webb, Jr., is dead, and the defendant Lyon is his administrator, and, finding the above bond among the papers of his intestate, has commenced a suit upon it against the obligor, Thomas Webb, Sr. The bill alleges that at the time the money was borrowed by the father from the son, and when he gave the bond for its repayment, it was expressly understood between them "that said bond was not to be collected, but was to stand, to make good any sum which might be necessary, upon the death of the father, to equalize the advancements aforesaid; and that in pursuance of such agreement and understanding the said Thomas Webb, Jr., did indorse on the said bond that the same was not to be collected during the life of his father, for reasons which would then appear; the legal effect and operation of which is to give them (the plaintiffs) an equitable lien upon the said bond for the security and fulfillment of said covenant."
The bill states that the defendant Lyon, the administrator of Thomas Webb, Jr., has brought suit on the bond against the obligor, and that the father has but little property, and that it will be ruinous to him to be compelled to pay the money, and that the plaintiffs are quite willing and desirous that he should not be compelled to do so during his life; and the prayer is that the creditor may be restrained from raising the money until after the death of the father, and that the debt shall remain as a security for what may be coming to the plaintiffs (69) for their distributive shares upon the death of their father.
The bond given by the father has upon it an indorsement such as is set forth in the bill. The defendant Lyon denies, as far as he has any knowledge on the subject, that there was any agreement between the obligor and the obligee at the time of its execution, or before, to the effect as stated in the bill; and he alleges that the indorsement was made by his intestate, after the bond was given, of his own voluntary motion.
If it be admitted that there was such an agreement between the parties as alleged by the plaintiffs, we cannot perceive how it gave to them any equitable lien upon the bond for the security and fulfillment of the covenant. An equitable lien is neither a jus in re nor a jus ad rem, but simply a right to possess and retain property until some charge attaching to it is paid or discharged. 1 Story Eq., 483, sec. 506. Now, it cannot be pretended that the plaintiffs have a right to the possession of the bond. They have, in fact, no interest in the estate of Thomas Webb, Sr., until his death, and it depends upon his will and pleasure whether they will have any then. There is nothing, then, to graft a lien upon; it was a personal contract, if it existed at all, between the father and the son, that the former during his life should not be called on for the money. He alone has a right to complain if the contract is violated. But he does not complain — he does not seek to enforce it, but is made a defendant in the cause because he will not complain. This is, of itself, a fatal objection to the plaintiff's bill. They are no parties to the suit, and have no interest in it. All they can be entitled to, upon the death of Thomas Webb, Sr., will be an equal portion of his estate, after the payment of his debts. It is not denied, but admitted, that the money was borrowed by Thomas (70) Webb, for which the bond was given; it is therefore a just debt, and must be paid before there will be anything to divide. It cannot, therefore, be a matter of any moment to them, if they can enforce the covenant given by Thomas Webb, Jr., on which we give no opinion, whether this bond is paid by Thomas Webb, Sr., or by his estate after his death. The case is before us upon the bill and answers and exhibits. There is no evidence of any agreement between the parties, such as is stated in the bill as having taken place when T. Webb gave his bond, apart from the indorsement on the bond, and that was merely a memorandum personal to the father, and directory to his personal representative after his death, creating no obligation, in law or equity, so far as the plaintiffs are concerned, and conferring upon them no legal interest that can be enforced.
PER CURIAM. Bill dismissed with costs.
(71)