Farrar & a. v. Crosby & a., 27 N.H. 9

Gilchrist, C. J. The bill alleges that E. B. Walker and Company being in failing circumstances, and being indebted both to the plaintiffs and to the defendants, proposed to' mortgage their personal property, for the security of these debts, provided it could be done so that all the creditors should stand upon equal grounds.

A part of the property was situated in Troy and a' part of it in Fitzwilliam, and for the purpose of accomplishing their object, it was agreed that there should be two mortgages, ope to the orators, and the other to Crosby, Farrar and Kimball, three of the defendants,' that each mortgage should include all the property, and should be recorded in each town, that the mortgage to the orators should be first recorded in Fitzwilliam and the other mortgage should be first recorded in Troy, and it was alleged that the mortgagees agreed to hold the property in trust for the common benefit of all.

These allegations are all denied by the answers. Kim-ball, in his answer, states that he thinks it was the understanding of all concerned, that the effect of the mortgages^ recorded as above, would be to put all the mortgagees on equal ground. The question is not so much whether the parties supposed they had accomplished this object, as whether there was, in fact, such an agreement as is alleged in the bill. There is no evidence in the case, tending to prove the allegation in the bill, that the mortgagees should hold the property in trust for the benefit of all. Two witnesses for the defendants, Daniel W.

Farrar and Edward Farrar, testify that they heard nothing said amon'g the parties on that subject. It is not only necessary that the substance of the case made by each party should be proved, but it must be substantially the same case as that which he has stated upon the record. In the case of Hobart v. Andrews, 21 Pick. 526, an assignment was stated in a bill in equity to be absolute; and it was held by the court that if it should appear at the hearing that there was a condition, the performance of which the plaintiff would be bound to show, the variance might then be taken advantage of. In Colson v.

Thompson, 2 Wheat. 336, it was held that where the complainant failed to prove the contract stated in the bill, it must be dismissed. .In Mortimer v. Orchard, 2 Ves. 243, the plaintiff prayed specific performance of a given agreement, set out in his bill, of which he gave evidence in writing which made it no more than a parol agreement, but the parol agreement proved was quite different. It was held that it was impossible to decree upon the prayer of the bill, for then the court must decree contrary to the evidence of the plaintiff. In Legh v.

Haverfield, it was held that where an agreement appeared to be different from that set up by the bill, the bill must be dismissed. 5 Ves. 452. In Daniels v. Davison, 16 Ves. 249, a bill stated an agreement to sell certain real estate “ provided the said premises are copyhold.” Lord Eldon said, “ There is by no means sufficient evidence that all the premises are copyhold,” and that in order to decree a specific performance, the subject must be proved as it is described.

The specific performance of an agreement to grant a lease for three lives cannot be decreed upon what amounts to evidence of an agreement to grant a lease for one life only. Lindsay v. Lynch, 2 Sch. & Lef. 1. In Denniston v. Little, 2 Sch. & Lef. 11, the general practice of the court is said to be to compel parties who come for the execution of agreements, to state them as they ought to be stated, and not to set up titles which, vPhen the cause comes to a hearing, they cannot support; Story Eq.

PI. § 394-note. ' The consequences of holding the respondents as trustees are very different from those which follow if they are regarded as tenants in common. If they are trustees, they hold their mortgage for the benefit of all parties, and if they have been diligent and have realized the full value of the property, by attending closely to it, the orators must share in the profits of it. The defendants could not cause the property to be sold, and become the purchasers of it themselves and reap the exclusive benefit of the sale, for the gain on the transaction would be shared by the orators. Sparhawk v.

Allen, 1 Foster’s Rep. 9. It appears from some part of the evidence, that one of the orators was present and forbade the sale. They might have purchased the property themselves, but they did not see fit so to do. If the defendants are to be regarded as trustees, they must account for the profits derived from that sale, and the orators will reap the benefit of the act they have forbidden the defendants to perform.

It would seem, also, that the defendants cannot be regarded as acting in the capacity of bailiffs, - expressly by the authority of the orators, or by implication, as managers of the property without any dissent on the part of the plaintiffs. 1 Story Eq. Jur. § 466. At appears that -the defendants assigned their interest in the mortgage. The orators did not assert their rights under their mortgage, although they might have done so, had they chosen.

It is evident that the transaction relating to the sale of the property in Massachusetts, would be materially affected by regarding the defendants as trustees, and not as tenants in common. These considerations furnish a sufficient reason why, upon the facts in this case, the bill cannot be ’maintained, but it may be asked whether, as tenants in common, -the respondents are not answerSble to the orators in an action at law. Hev. Stat. 358 § 4.

It may also be questionable whether, as the defendants'merely assigned their interest in their mortgage, they could be called upon to account to the orators in equity for any part of what they received. Bill dismissed.