#### William R. Jernee, appellant, *v.*Emma Bentley, executrix of Peter Bentley, deceased, respondent.

Complainant was the owner of a bottling plant and establishment subject to a chattel mortgage for §2,500, given by himself to one Donovan, upon which less than that amount was due. In this situation he sold the plant to a third party, who assumed the payment of the mortgage at §2,500 upon the understanding that its payment should be extended for a year, in order to effect which understanding complainant paid the amount due on the mortgage to the mortgagee, and procured the mortgage to be assigned to defendant’s testator to hold in trust to carry out the intention of the parties. Before the expiration of the year the assignee died, and his executrix having no notice of the trust or facts above stated, and supposing the mortgage belonged to her testator, foreclosed it, and realized therefrom a sum much less than §2,500 ; some of the chattels having been eloined without the fault of the trustee.— *Held,*that defendant was liable to pay complainant the amount actually realized from the foreclosure, and no more.

On appeal from a decree advised by Vice-Chancellor Pitney as follows:

*585This cause coming on to be heard upon bill, answer, replica'tion, and the testimony of witnesses, taken before the court in the presence of Silas D. Grimstead, solicitor, and R. T. Stout, of counsel with the complainant, and of Earle Insley, solicitor, and Washington B. Williams, of counsel with the defendant, and the pleadings having been read and' the evidence produced, and the arguments of counsel heard and considered; and it appearing to the satisfaction of the court that the mortgage in question in this cause, upon certain goods and chattels ;and property on the premises No. 250 York street, Jersey City, New Jersey, bearing date the 30th day of September, in the year 1887, recorded in the office of the register of Hudson county, in Book 33 of Chattel Mortgages, page 106, made and executed by >ihe complainant, William R. Jernee, to Cornelius J. Donovan, for the sum of $2,500, was assigned, by the said Cornelius J. Donovan to Peter Bentley, in his lifetime, by assignment endorsed thereon, dated the 29th day of November, in the year 1887, without consideration, and that a trust resulted in the said Peter Bentley in favor of the said William R. Jernee, complainant, the equitable owner of said mortgage. And it further appearing that said Peter Bentley has since died, and that the defendant, Emma Bentley, has been appointed and has qualified as executrix under his will, and that by the terms of the agreement under which said mortgage was assigned the said William R. Jernee is entitled to an assignment thereof from said Emma Bentley, executrix; and the court having ascertained by the defendant’s 'answer filed in this cause, which has not been disputed or contradicted by evidence, that she has received from a sale of a portion of the goods and chattels covered by the mortgage, after the payment of constable’s charges and expenses, the sum of $148.83, and being of opinion that said sum should be paid to the complainant and said mortgage assigned to him, as prayed in said bill:

It is, on this 5th day of January, 1891, ordered, adjudged and decreed that in accordance with the terms of the trust above recited, the defendant, Emma Bentley, executrix of the will of Peter Bentley, deceased, do, within ten days from the date of *586service of a copy of this order and decree, make, execute and acknowledge, in due form of law, and deliver to the said complainant, 'William R. Jernee, a deed of assignment, assigning and transferring the said mortgage to him, the said William R., Jernee, complainant as aforesaid, and that she deliver therewith the said mortgage itself to the said William R. Jernee, complainant as aforesaid. And it is further ordered and decreed that the-defendant do also pay to said complainant the sum of $148.83,-. with interest from the date of its receipt by her, which is hereby decreed to be the amount due from her, as executrix, to the said complainant, in -full satisfaction of any claim or demand of the-complainant against the defendant on account of said mortgage and assignment. And it is further ordered that the complainant’s costs of this suit be paid out of the estate of said Peter Bentley, deceased.

*Mr. Charles L. Corbin,*for the appellant.

*Mr. Abraham V. Schenck,*for the respondent.

Decree affirmed.

*For affirmance*— The Chief-Justice, Dixon, Garrison, Magie, Reed, Scudder, Van Syckel, Werts, Bogert, Brown, Clement, Smith, Whitaker — 13.

*For reversal*— None.