#### M. A. Moore *vs.*Joseph Caldwell, Ex’r, and others.

Bill by creditor of testator to enforce bis demand against exocutor, and legatees to whom the *assets*had been delivered upon their undertaking to pay all demands against the estate *:*— Held that the Court had jurisdiction.

Contract under seal to purchase one-half of a share in an incorporated company* and the usufruct of a lot belonging to the company *:*— Held, to be upon sufficient consideration, although the company failed, the lot was sold, and the share proved to be worthless.

Where there is a covenant between M. and B. that B. shall satisfy certain demands for which M. is liable, and M. is afterwards compelled to pay those demands^ the statute of limitations runs from the time of payment, and not from the date of the covenant.

BEFOBE JOHNSTON, OH., AT NEWBEEBY, AUGUST, 1855.

In September, 1837, a number of persons, with a view to form a watering place, entered into the following agreement:

“We, whose names are hereunto subscribed, promise to the sums annexed to our names; and, also agree to constitute and form a company to purchase from *John B. Gflenn,*his mineral spring, and all the lands thereto attached, at the sum of fifteen thousand dollars; to consist of fifteen shares, at one thousand dollars, each; one-fifth to be paid on the transfer of said springs and lands, — with interest until all is paid: and it is agreed and understood that any subscriber who fails to pay his instalments at the time they become due, that they forfeit their shares, and the amount they have paid to the company.

“D. Caldwell, $1,000 Wm. O. Pearson, $1,000

*M. A.*Moore, 1,000 Ann Sims, 1,000

Jno. K. E. Sims, 1,000 Geo. Ashford, 1,000

R. Moorman, 1,000 John B. Glenn, 1,000

H. D. Van Lew, .1,000 J. C. Wells, 1,000 S. W. Shelton for L. N. Shelton, 1,000

R. S. Brown, 1,000 Jno. W. Smith, 1,000”

R. A. Nott, 1,000

O. B. Irvine, 1,000

*23To this paper, ¥m. B. Thorne subsequently subscribed; it being agreed that Mrs. Sims should forfeit her share, and that it be transferred to him.

Cotemporaneously, the following instrument, intended as a note to Jno. B. Glenn, for the price of the premises was executed : Glenn himself subscribing it—

“We, either of us, promise to pay John B. Glenn, the just sum of fifteen thousand dollars, viz:

$3,000 on the 1st day of January next,

3,000 in January, 1839,

3,000 in January, 1840,

3,000 in January, 1841,

3,000 in January, 1842,

with interest annually, for value' received, as witness our hands and seals, September 15. 1837.

“ D. Caldwell [l. s.] John B. Glenn, [l. s.]

II. D. Van Lew, [l. s.] O. B. Irivine, [t. s.]

Geo. A. Ashford, [l. s.] Jno. K. B. Sims, [l. s.]

B. A. Nott, [l. s.] W. C. Pearson, [l. s.]

S. W. Shelton for ) f , L. N. Shelton, J L ' 'J *It. 8. Brown,*[l. s.] Ann Sims, [l. s.]

*M. A.*Moore, [l. s.] Jno. W. Smith, [l. s.J

J. C. Wells, [u. s.] B. Moorman, [l. s.]

Subsequently, this singular instrument was subscribed by B. Ligón and Wm. B. Thorne; the former having taken the share of J. C. Wells, and the latter that of Mrs. Ann Sims.

The company was incorporated in December, 1837.

On the 6th of February, 1838, Glenn executed a deed to the corporation for the land, which consisted of several hundred acres.

On the 3d of October, 1839, Dr. Irvine, President of the Company, by its authority, mortgaged the premises to Glenn, as additional security'for the four last instalments of the note.

*24The capital paid in having been expended in improvements, the President, under a resolution of the Company, made a loan from the Bank of the State, of ten thousand dollars for further necessary purposes ; for which he gave his note, as President, endorsed by Richard Samuel Brown, and by the plaintiff, Dr. Moore, two of the above named stockholders.

By resolution of the Company, a small lot was allowed to each of the stockholders, and Brown took possession of his lot and improved it; but Dr. Moore let his lie unoccupied and unimproved.

To this statement it may be added, that each stockholder was entitled to one vote, in meetings of the stockholders.

In this situation the following contract was entered into between Brown and Moore: »

“ A bargain was made this day, between M. A. Moore and ' Samuel Brown, viz: the said M. A. Moore sells the one-half of his share in the Glenn Springs stock, (together with his lot,) to the said Samuel Brown, for the sum of three hundred dollars. It is further agreed and understood between the parties, that the said Brown is to be bound for one-half of the liabilities to John B. Glenn and the bank debt of the said Moore’s share; and it is further agreed that the money is to be paid on the 1st day of January next, to the said Moore. And, further, the said Brown is to have two votes to the said Moore’s one. Given under oür hands and seals, February 4, 1840.

M. A. Mooee, [l. s.]

R. S. BkowN, [l. s.]

Shortly afterwards, Brown died, without having made the payments for which he had thus obligated himself: but leaving a will, of which the defendant, Joseph Caldwell, is executor, by which he devised his interests in the Glenn Springs.Company to his wife, and the residue of his estate (in the events which *25have taken place,) to his two children, James L., and Martha, defendants in this case.

The Bank obtained judgment against the Company on its debt; under which the Company’s possessions, including the lots were sold out, on the 4th of January, 1842, and the proceeds satisfied that debt, and a part of Glenn’s as secured by his mortgage, leaving a balance still due to Glenn.

Glenn having died, and it having been decided at law, *that no action*could he sustained on the note he had taken, — he being one of the obligors ; Patsy Glenn, his executrix, brought suit in this Court, in 1847, against such of the obligors as remained in this State, (including Moore, and Caldwell as executor of Brown,) and, in 1851, by final decree in appeal, Moore was obliged to pay over one thousand six hundred and nine dollars; which "iras collected from him the 7th of July, 1858.

Pending these proceedings, James L. Brown, son of E. S. Brown, came of age, and Caldwell, the executor, delivered to him, and to Dr. Eppes, guardian of the daughter, Martha, the whole residue of the estate in his hands, of which a schedule was made ; under which they executed the following:

“We acknowledge the receipt of the above specified property, and all of the real estate of R. S. Brown, deceased, at the same time: and consequently bind ourselves to pay all of the outstanding debts and lawful demands against the said estate,— thereby relieving the above named executor from all liability on his part, as to out-standing debts, or demands against said estate, — this the 2d day of November, 1840.

“ J. M.'Eppes.

“ In presence of J. L. BROWN.”

Thos. B. KenneRly.

The bill was filed the 24th of May, 1854, against Caldwell, the executor, James L. Brown, and Martha, with Thomas B. Kennerly, now her husband; and, upon the foregoing facts, *26claimed payment of the three hundred dollars, and also of half the sum -which Moore was obliged to pay on Glenn’s demand, with interest.

The defence was:—

1. That there was no consideration for the engagement, inasmuch as the share sold by Moore, as events proved, was worth nothing; and furthermore, he had no title to the lot.

2. The statute of limitations.

8. Want of jurisdiction.

Some evidence was taken. The case was heard August 2, 1855, when the following decree was pronounced.

Johnston, Ch. The want of jurisdiction is not, now, so frequently objected as formerly.

This Court has at length by the promptness of its procedure and the fullness of the remedies administered by it, so established the forum in the public confidence, that it is, now, very rare to hear such a plea interposed.

I do not perceive how the jurisdiction can be questioned in any case, where the decree renders full and complete justice between numerous parties, not all liable to be impleaded at law in the same action, in a matter where the legal remedy is not plain; or where, if plain, it is to be attained only by an expensive and dilatory circuit.

In this case it would be difficult to frame a declaration at law covering the complaint against the executor. But when to this is added the liability, accumulated upon him, by the transfer of assets to the legatees, and their engagement to answer in his place (to the benefit of which engagement the plaintiff is entitled,) it can scarcely be doubted that the plain*27tiff’s remedy at law, upon tlie whole case, is neither so plain nor so adequate as to exclude him from this tribunal, (a)

Then, as to the consideration of Brown’s agreement. The point seems to me to be misconceived.

It is true that the bank debt nearly consumed the whole property. There was little of its proceeds left to be applied to the purchase money due to Glenn. This does not prove that the Company had *no title,*but only that, having a title, the Company was in -debt. Brown knew this, as well as Moore. Nor does it show that Moore had not in the stock of the Company, so circumstanced, the share (be it worth more or less,) which he sold. Brown knew the cicumstances of the Company, and was as competent as Moore, to form a judgment of the value of the stock shares. He bought upon a speculation; and his engagement was to pay one-half the liabilities falling on the share he purchased, and an advance of three hundred dollars. The chance of profit was the consideration of his purchase. If a man purchase a share in a bank, and is not imposed on by fraud or concealment, can he be relieved because it turns out that it was a bad bargain ? . •

There was, again, a full legal consideration in this case, in the transfer of the share ; which is not impaired by the failure of the Company. This consideration consisted in letting in the purchaser to a share of the franchise.

As to the lot: let it be granted that Moore had no exclusive title. If he had sold the lot as his own private property, apart from his character of stockholder, still inasmuch as Brown knew the infirmity of the title, this could be no ground for a total recision, but only for an abatement. It is proved to have rated so low as to be unworthy of consideration in the latter light. But the circumstances show that the usufruct of the lot as allowed by the Company, and as appurtenant to the stock share, was all that was contemplated in the bargain. Brown, *28a co-stockholder, conversant with all the facts, understood all this very well, and is not to be excused from the contract, made by him with full knowledge.

Lastly, as to the Statuteof Limitations. It is very plain that the three hundred dollars promised to Moore under seal could he recovered only in debt, — and the specialty by which it is secured is no more liable to the bar of the statute than any other bond. This is not disputed.

But then, it is said that the engagement to pay one-half the purchase of the share to Glenn, -is a covenant; that the Statute instantly began to run; and this covenant was, by the terms of the Statute, barred in four years.

The point is misconceived. The suit is not brought on the instrument. The instrument is only used as evidence that one-half the sum paid by Dr. Moore to Glenn’s executrix was Brown’s debt; so acknowledged by him in this instrument. Moore has been obliged to pay that debt; and his suit is for the money thus paid for Brown. The statute runs only from the advance of the money to Brown’s use ; and the bill being filed within one year from that time, is not barred.

It is decreed that the defendants are liable to the plaintiff (the legatees primarily,) for the sum advanced, with interest from the advance; and for the three hundred dollars, with interest from the time it was due; and for the costs of this suit.

It is ordered that the commissioner take an account, and report the sum due.

The defendants appealed and moved this Court to reverse the decree on the grounds:

1. Because it is respectfully submitted, 'that if the plaintiff is entitled to any relief, he has plain and adequate remedy at law.

2. Because the consideration upon which the contract was founded, failed.

*293. Because tbe plaintiff’s claim was barred *by*tbe statute of limitations.

4. Because tbe decree is in other respects contrary to law and equity.

*Sullivan, Crarlington,*for appellants.

*Fair,*contra.

(a)

*Valk*vs. *Vernon,*2 Hill, Ch. 257.

PER CüRIAM.

This Court approves tbe decree of tbe Chancellor, and it is ordered that the same be affirmed and tbe appeal dismissed.

Johnston, Dunkin, Darsan and Wardlaw, CO., concurring.

*Appeal*dismissed.