The opinion of the court was delivered by
Redfield, J.The questions in this case are mainly matters of
fact, and were, we think, correctly decided by the court of chancery. In regard to the law involved in the decision, we have no doubt. The matter fairly and bona fide in controversy, and not the amount of the balance ultimately struck by the master, is to determine the jurisdiction. If it were not so, an account involving ever so many items upon either side might be taken out of the court of chancery altogether by the apprehension, that the master’s final balance would fall below fifty dollars. And in regard to the very matter of the timber cut by the defendant, upon the average mode of estimating *580its net value, the orator might fairly have calculated upon a balance due to him of something more than fifty dollars. So that we do not see, how any good ground of denying to the court of chancery jurisdiction in this case is made out.
Chapter 24, sec. 24, of the Revised Statutes provides, that “ the court of chancery shall dismiss every suit concerning property, except to foreclose a mortgage, where the matter in dispute, exclusive of costs, does not exceed fifty dollars, with costs to the defendant.” This section refers, doubtless, to the difference between the claim of the plaintiff and that of the defendant, as “ the matter in dispute.” It can, of course, be nothing else. This claim, to give jurisdiction, must doubtless be bona fide; but we do not think the jurisdiction is lapsed, because the master estimates it lower than the party, or because a portion of it is disallowed altogether.
In regard to the general merits of the claim, it may be somewhat questionable, how far Fairchild, as between himself and the defendant, after having taken pay for all the timber, could have insisted upon the mere matter of time. I should somewhat question that. It would be a mere penalty, depending upon time only, against which courts of equity will ordinarily grant relief.
But Fairchild not having insisted upon any such forfeiture, but conveyed the land for the mere price of the land, exclusive of the timber, it seems to us, it must be considered, that the timber is the joint property of the plaintiff and the defendant. The contract was originally made for their joint benefit, but in the name of the defendant, and the price was paid from the joint funds. It seems to us, then, that it must be regarded as joint property, and that the defendant was justly held liable for it as such.
The claim for a conveyance of the land is altogether abandoned. The effect of the decree is doubtless to secure to the orator all he can justly claim, — an interest in the timber growing on the land. If there is any old balance due to the defendant, very likely it should have been deducted, and it probably was, from the balance found due the plaintiff upon the new sale, and a final decree passed only for the ultimate balance due. We see no ground to question the regularity of the proceedings in the court of chancery, and the decree is affirmed, with costs, and the case remanded to the court of chancery, that the decree may be .carried into .effect.