(after stating the facts.) Two questions arise upon this case;
Points
Í. Whether the proofs taken in the cause could be regularly used as against the appellant, they having been taken before he was a party; and,
2. Whether those proofs, if admissible, prove the fact of payment.
It is contended on the part of the appellant, that those proofs cannot be used, because he had no opportunity to examine witnesses. To this, it is answered, that he having succeeded to the rights and liabilities of Carpenter, he is entitled to no other privileges than Carpenter. In 1 Haddock’s Ch. 141, it is said that if a defendant be added after publication passed, the cause, as to such defendant, must be heard on the bill and answer only; and Jacob’s Chancery Practice, 139, is cited to support that dictum; and it *674was urged at the bar, that at any rate, a defendant brought in on a supplemental bill, is to answer only the matters charged in that bill; and as to these, if they ase denied il the answer, proofs may be taken, and the cause brought to a hearing, as on original bills. In Shepherd v. Merril, (3 John. Ch. Rep. 423,) the Chancellor refused an amendment to the bill after publication passed ; but gave leave to add new charges by supplemental bill. And it is hardly supposable that such leave would have been granted, if the plaintiff could not support his charges by proof, should they be denied by the answer. The same practice was afterwards recognized in Thorn v. Germand, (4 John. Ch. Rep. 363,364.) In Mitford’s Pleadings, 58-9, it is said that, “ a supplemental bill' must state the original bill, and the proceedings upon it; and if the supplemental bill is occasioned by an event subsequent to the original bill, it must state that event, and the consequent alteration with respect to the parties; and, in general, the supplemental bill must pray that all. the defendants may appear and answer to the charges it contains; or if the supplemental bill is not for discovery merely, the cause must be heard upon the supplemental bill, at the same time it is heard upon the original bill, if it has not been heard; and if it has been heard upon the original, it must be further heard upon the supplemental bill.” Nothing is here said as to the cause being heard upon the pleadings merely, without proof. In Boyd v. Dunlap, (1 John. Ch. Rep. 483,) the Chancellor says, “ Liberty to re-examine witnesses, rests in discretion, and is to be governed by circumstances.”
*673Whether the proofs were admissible a* gainst the ap. pellant;
*674He having answered the original bill, and this not o'eing excepted to.
But whatever the rule maybe, as to a plaintiff’s right to examine witnesses upon the answer to a supplemental bill, in this case none were examined. The respondent filed a general replication, and went to a hearing without examining a single witness. Admitting that the appellant was, in strict practice, bound to answer only the charges in the supplemental bill, and not those in the original; yet he has answered the latter charges. He has denied them; and the question arises, is not that answer to be taken as true, the respondent having neither examined witnesses *675to disprove it, nor excepted to the answer as containing irrelevant or improper matter ?
A purchaser pendente _ Ute a°™arty “after p^Sg¿“ouId ha bound by proofs.
Had Hopkins simply answered the charges in the plemental bill, he would have been bound by the previous proofs taken in the cause, especially, if he is to be considered as a purchaser pendente lite. In Garth v. Ward, (2 Atk. 175,) Lord Hardwicke asks, “ So in the case of a mortgagor who comes here for redemption, if, during such suit he should assign the equity of redemption, and, in the final hearing of the cause, there should be a decree against the mortgagor, will not the assignee of the equity of redemption, be bound by this decree ?” In 2 Haddock’s Oh. 405, this rule is laid down : “ Where a supplemental bill is brought after publication, it is irregular to examine witnesses to a matter that was in issue, and not proved in the original cause; nor can such proofs be read; and if there be no proof as to the new matter in the supplemental bill, it will be dismissed.” This must be understood, probably, of a case where the facts in the original bill are not answered in the supplemental.
From the best examination I have been able to give the subject, admitting, in a case like the present, the answer is to be confined to the supplemental bill, and that the proofs taken on the original bill are to stand ; yet the respondent having gone on to a hearing, leaving the answer to the supplemental bill not disproved, nor stricken out for impertinence, I am satisfied that she lias been irregular. The Chancellor,’ and of course this Court on appeal, is bound to consider the facts in the answer to the supplemental bill admitted by the complainant.
. The answei cepted*tof tho’ it ^extend to, origiudTm, it ^ proof, must bo
On the second point, I will barely remark, without going into detail, that the evidence is far from being satisfactory on the question of payment. The appellant shows a valid instrument under seal, on which there appears to be due to him $125, and interest; and a liability to indemnify to at least $400 more; and the only evidence to counteract this claim, rests on loose circumstances and declarations rather equivocal.
Evidence of Satisfactory.
To show payment, by which a party is to lose his hen *676for such a démand, the proof, if not positive,- should at leas be satisfact017-
nió verdict tode'wcight"6 Savage,- Ch. for reversal.
Undet the circumstances of this case, the verdict in ejéctmenf should have little weight; as the appellant avers, and this is ntit contradicted by the proofs, that the evidence offered to disprove the payment, was rejected by the Court before which the ejectment was tried.
I am therefore of opinion that the decree of his Honor, (jpan¿gpor. should be reversed.
Woodworth and Sutherland, Justices, concurred;
What was decided by the chanchellor.
Colden, Senator; Iii this Case, the Chancellor has detided that the mortgage giveh by Enos Cook to the appellant, was satisfied. He draws this conclusion from 'proofs taken before the appellant was a party in the cause ; and from a verdict in an ejectment suit between the respondent and Carpenter.
He has also decided, that the appellant having become repossessed of the mortgage pending the suit below,- between the respondent and Carpenter, the suit might proceed as if the mortgage had remained in the hands of Carpenter, and áS if the appellant had no interest- in the controversy.
, Answer delues payment.
The ahsWer of the appellant, to which there was a gene-x u tal replication, denies that the mortgage Was satisfied, and avers that he holds the same as security for a considerable amount yet due upon it. If the appellant ought not to be concluded by the testimony taken before he became a party, and if, after he was made a defehdant, he had a right to produce witnesses to support his answer, then it is unnecessary to examine how far the testimony, as between the respondent'and Carpenter, is sufficient to establish the páyméút of the mortgage;
The only questions, therefore, which I think it necessary to decide, are, .
Points.
1. Whether the appellant should not, after he was made a defendant, have had.an. opportunity of examining witnesses, as . if he had been an original parry to the suit.
*6772. Whether his re-possession of the mortgage, pending the suit below, was such an acquisition of it as subjected his title to the mortgage to the rules which govern, where property in controversy is taken while the right to it is in litigation.
3. And lastly, whether the appellant was concluded, by the verdict and judgment in the ejectment suit.
It is important to notice that the appellant is not a volunteer in the cause. He was examined as a witness, by the defendant, Carpenter, and testified that the mortgage was an outstanding unsatisfied security in his hands. His testimony was suppressed, by an order of the Chancellor, on a petition of the respondent, stating that the appellant appeared to he deeply interested in the event of the cause; and that lie claimed to be the owner of the mortgage by reason Of failure in performing the conditions of the assignment of the mortgage by the appellant to the defendant, Carpenter ; and that the appellant, cither jointly with the defendant, Carpenter, or solely, was interested in the subject matter of the suit.
Appellant not. a volunteer.
After this, when all the. testimony, on which the cause was finally decided, was before the Court, and when the cause was on hearing, upon the suggestion of the defendant Carpenter, the Chancellor ordered that the cause should stand over, without prejudice, to the end that the respondent might bring in Hopkins as a party defendant.
Order that cause stand over
If Hopkins’ denial of payment, when he was brought in, gave him no right to controvert the fact and to prove his allegations, there does not seem to be any satisfactory reason Avhy he should have been made a party. His denial could not help the respondent; and the cause seems to have stood before the Chancellor on precisely the same ground, when he directed Hopkins to be made a party, that it did subsequently. But Avhen it appeared to the Chancellor, by the showing of the respondent, that Hopkins claimed to be OAvner of the mortgage, and that he was jointly or solely interested in the suit, I think the Chancellor could not have done otherwise than compel the respondent to make him a party. When ho ansAvered, it appeared that the allegations of the respondent, as to his claim of interest, Avere true. It *678would seem that a party, so circumstanced, should be entitled to produce his testimony; and should not be com eluded by examinations which had been taken in a procee¿jng 0f which he was not, by legal intendment, connusant<
*677Appellant xvU entitled to adduce testimony.
*678But it is said the decree against the appellant, without giving him an opportunity to examine witnesses or to question those which had been examined, was correct, because the rights of the respondent, as against the mortgage in the hands of the defendant Carpenter, were not affected by a re-assignment or redelivery of the mortgage by the defendant, Carpenter, to Hopkins, pending the suit.
Otherwise had been^emdilional.
Certainly, if there had been an unconditional assignment of the mortgage to Carpenter, and Hopkins had taken "a voluntary assignment of it, while it was in litigation in the Court below, he must have been content to have been represented by Carpenter; and must have abided by the proceeding, and any decree that might have been made against him. But this was not the case. The mortgage was assigned to Carpenter, lorig before the commencement of the suit, upon the express condition, that in case of failure in any of the payments, which Carpenter had agreed upon as the consideration for the assignment, then the assignment was to be absolutely null and void, and the mortgage was to be redelivered to the assignor. The appellant, then, never ceased to have an interest in the mortgage. If Carpenter did not pay, as the appellant avers in his answer, and as he possibly might have proved if he had been allowed the opportunity to examine witnesses, the appellant would have been entitled to a re-assignment and redelivery of the mortgage. Can it be, because a suit to which the appellant was a stranger was depending be ■ tween the respondent and Carpenter, that the appellant was not at liberty to avail himself of the terms and conditions of his assignment?
Appellant aiinterest hi mortgago.
doct!'ino of us pendens applies only person & thattempts to in-controversy by acquiring an interest during ito pendency,
The doctrine of lis pendens applies only where a third person attempts to intrude into a controversy, by acquiring an interest in the matter in litigation pending the suit.
The rule as given by Chancellor Kent, in the case of Murray v. Lilburn (2 John. Ch. Rep. 445,) is, that “any inter*679est acquired in the subject matter of a suit, pending the suit, is so far considered as a nullity, that it cannot avail against the plaintiff’s title.”
The reason of the rule is, that if a transfer of interest, pending a suit, were to be allowed to affect the proceedings, there would be no end to litigation; for as soon as a new party was brought in, he might transfer to another, and render it necessary to bring that other before the Court, so that a suit might be interminable. But this reason has no application to a third person, whose interest subsisted before the suit was commenced, and who might have been made an original party.
The reason of the rule.
So that neither the rule, nor the reason of the rule applies to the case under consideration. The interest of the appellant, in the mortgage, was not a voluntary acquisition by him pending the suit. His interest subsisted long before the suit was commenced, and ought not, in my opinion, to have been considered as a nullity.
Neither the rule nor reason of it apply here.
In the cases of Walker v. Smalwood, (Ambl. 676,) and Sorrel v. Carpenter, (2 P. Wms. 483,) cited by the respondent’s counsel, the conveyances were made after the commencement of the suit. In Heatley v. Finster, (2 John. Ch. Rep. 158,) Murray v. The same, (id. 155,) and Murray v. Lilburn, (id. 444,) the defendants claimed under a trastee, in virtue of certain transactions between them and the trustee, after bills were filed charging the trustee with fraud in relation to these transactions ; the defendants having notice that a charge of fraud was the ground of the suits. The Court decided that these transactions, pendente lite, were invalid.
The bill in this case, as against the appellant, is an original bill in the nature of a supplemental bill. To such a bill it is said in Mitford’s Pleadings, 68, (2 Engl, ed.) a new defence may be made. The pleadings and depositions can not be used in the same manner as if filed or taken in the same cause.
The bill against the appellant was an original bill in nature of a supplemental bill, entitling the party added to a new defence.
¡Where a supplemental bill is in the nature of a bill of revivor, and seeks merely to bring in parties who claim trader the original party to the suit, and claim the same interest by the same title, that the original party did, then *680there may be equity in binding and concluding the next Party hy testimony taken previously to his having been "made a defendant.
*679Otherwise, semh. whera the supplemental bill is in nature of 8 bill of revivor.
*680Hcre is no twetm original and new party"
But where, as in the case under consideration, there is no privity or connection between the new party and the original defendant, where he may not know, and has no interest to support "the title of the new party, it seems to me that it would he a very unjust rule which would oblige the new party to abide by the testimony taken while he was a stranger to the suit, and would prevent his producing witnesses to support the title he sets up.
I forbear to examine this point farther ; because, putting the redelivery of the mortgage to the appellant out of question, alid supposing that th e mortgage had always remained in possession of'Carpenter, I think it appeared in the Court of Chancery, as well by the showing of the respondent as by the answer of the appellant, that he was so far interested that he ought to have been made an original party: and that , , , , when he was subsequently brought m, he had the same to produce witnesses, and to prove his case, that he Would have had, if he had been made a defendant at the commencement of the suit.
Appellant had same right to prove his case, beenfan°ori‘ad nal defendant.
Of the verdict, &c. in ejectment.
The third reason assigned for concluding the appellant by the. testimony taken before he was a party, is that the fact that the mortgage was paid and satisfied in February, 1816, by Enos Cook, was put in issue and established by the verdict of a jury upon a trial in an ejectment, founded upon the mortgage.
We understand from the respondent’s hill, that she having recovered a judgment against Cook, sold the mortgaged premises, under an execution issued on that judgment, and became the purchaser, at the sheriff’s sale, for $126 38. That she thereupon brought her ejectment, to which a defence was made by Carpenter as the assignee of the mortgage. That it appeared to the Court, that the mortgage was satisfied, and the respondent recovered judgment.
Appellant bad no notice of the ejectinent suit,
j do not find that the appellant had any notice of this suit, ,, , ... ,,,, But if the appellant ought not to he concluded by the proceeedings, in the Court of Chancery, to which he Weis not a party, as I think he should not be, he ought not to be bound by the event of the suit at common law.
*681I do not understand that a verdict in ejectment is con-elusive as to any point, even between the same parties, unless it he in the action for mesne profits. And so far as have been able to examine the cases, cited by the respondent’s counsel from Phillips and other authors, they are to this effect.
Suppose, after the verdict in the ejectment suit, Hopkins, or even Carpenter himself," had discovered testimony that would, beyond all doubt, have shown that the mortgage was ’ ; . , ’ „ , , , f lín satisfied : might not either oí them have brought a new ejectment, or have resorted to a Court of Equity ? I can not think they would have been precluded from doing so because the fact of payment was put in issue in the suitbetween the respondent and Carpenter; the more particularly, when (he common law Court excluded evidence of a settlement between the mortgagor and mortgagee which showed how much was due on the mortgage. This evidence could only have been excluded on the ground that, as Hopkins was not a party to the record, the memorandum between him and Cook, of the 2d January, 1817, was res inter alios acta.
A _ verdict ^ejetimonUs concIusive, oven botween the ¡m™es^oxcepHn an action for meS110 Profits-
Now it would be very unjust, as it appears to me, that this testimony should be excluded in the Court of common law, on the ground of the appellant’s not being a party to the record, and yet that he should be concluded, in the Court of Chancery, by the event of that suit, on the ground that though he was not in the record he was a party in interest.
My opinion is, that the decree be reversed, and that the record he remitted to the Court of Chancery under such an order as shall admit the appellant to prove his answer, as if he had been an original party to the suit.
Golden, Senator for reversal.
I have come to this conclusion, without any other want of confidence in its correctness, than its being in opposition to the high authority to which it is opposed. But we are placed in a situation where we must take care that our habitual respect for that authority has not an undue influence ; and where we are bound to decide according to our own und erstanding sand intelligence, however we may estimate the talents, learning and experience by which the judgments brought to our review are declared.
*682The Court (except Morgan, Senator) being for a reversal, it was thereupon ordered, adjudged and decreed, that the decree of his Honor the Chancellor be reversed; and the record remitted, &c.