At the hearing of the exceptions in this case, a motion to introduce further evidence in their support was made by the complainants, and overruled. But if that disposition of it had, on maturer consideration, been found to be improper, we would still admit the evidence before deciding on the exceptions. But we think the ruling was right under all the circumstances. Because the further evidence was offered without any previous notice to the opposite party of a wish to offer more proof, or of a willingness that more might be adduced by them. The court, therefore, decided that the evidence could not be admitted without granting a like privilege to the other side, and allowing time to improve the privilege thus granted, and that, on such terms of mutuality and time allowed, it might be admitted. The plaintiffs objected to this indulgence to the other side, and hence we still think they were rightfully precluded from doing what they did not consent their antagonists should be allowed time to do.
In respect to the exceptions themselves, most of them seem chiefly to rest on an impression that the court, when a master’s report is returned, should retry and reexamine and decide on all the questions of fact, as well as law, raised before the master. But we regard the office of a master in chancery somewhat like that of a jury in the courts of common law. Originally there were twelve masters in number, and their duties were not only limited, in the progress of time, to matters of fact, but chiefly to those of mere debt and credit, and computation of interest. 1 Spence, Eq. Jur. When they have once decided on these facts, and no legal question is involved in them, their report should stand probably without amendment here, or without recom-mitment, unless reasons exist for either, as strong as will justify setting aside a verdict. If there has been a clear mistake, or a palpable abuse of power, either of them ought to be corrected. But if the court should en-quire or act beyond that, as to matters of fact, the office of master would prove but little aid in the administration of justice— the court being compelled to go over all the facts again, and thus their labors be greatly and unnecessarily increased. When a party has enjoyed one full hearing as to the facts involved in his claims of debt, credit, interest and kindred topics, there seems little justification for going into another, unless the master has clearly fallen into a mistake, or clear
Proceeding to the examination of the different exceptions, with these views, our conclusions are, that judgment must be rendered in conformity to the report.
The first exception is, in substance, that the 4'hole sum received by the defendants of the plaintiffs in money, was larger than that found by the master. But this was a fact involving no principle of law, and concerning which the testimony on the points in doub.t was contradictory. The evidence, in one view of the subject, showed more, and in another view, near the amount found by the master. The probability seems to be, that if the plaintiffs jiaid more than $0,275, the sum allowed by the master, it was in the course of the business paid to Fifield, and not retained by the respondents; and that the notes to Fifield, and endorsed by him, were substituted for any money beyond that sum. After the lapse of eleven or twelve years, the truth is not likely to be attainable with much exactness, and this delay is so much more the fault of the plaintiffs in this case, than of the respondents, as to have formerly caused a decree, in some respects less favorable to them than it otherwise would have been. Kot taking a receipt or some written evidences of the amount of money paid by them at the time of the sale, whether to the respondents or Fifield, (which is the chief cause of the difficulty on this point,) is another neglect on their part, the consequences of which must fall, rather on them than the defendants. It is the business of the former, rather than the latter, to remove doubts and uncertainties as to the larger amount claimed.' Not doing this, and there being evidence to justify either view, the master has allowed the smaller sum; and we do not see enough in the case to warrant a belief that it has been done through any clear mistake, or abuse of power.
The second exception is merely a branch of the first, being that the interest allowed is not sufficient for the whole principal paid. It falls with the first exception, as the interest is enough in amount; if the principal allowed was probably enough, and we have already decided that it was, in respect to this item.
The third exception raises a question of law, rather than fact, since it contends that the defendant Crosby is not charged with enough in other respects, as he is allowed payments made before the bill was filed to other persons claiming to possess an interest in the land at the time of the sale in 1835 to the plaintiffs, when, in truth, the plaintiffs argued that those other persons then possessed neither an equitable nor legal interest in the premises, sufficient, in law, to justify such payments. But the fact is undoubted that they claimed some interest there; that the claim was then admitted by the respondents; that even the complainants alleged in their bill the existence of such interests, but without knowing the names of the parties; that the respondents gave their names and proportions of interests in their answers, and that the only question made in this matter at the hearing, was whether an interest like theirs, not by deed, but by bond in most of the cases, made it imperative on the plaintiffs to join them all as defendants in the bill.
Now, although several of the matters in the answers as to this may be not precisely responsive to the bill, — 8 Cow. 387; 1 Johns. Ch. 580; 2 Johns. Ch. 88; 3 Blackf. 18; 8 Pick. 113; 4 Paige, 22; 15 Me. 125; Randall v. Phillips [Case No. 11,555], — and a bill with no formal interrogatories renders It more difficult to decide, with exactness, what is and what is not responsive, yet there is other evidence than these answers that these persons were interested. That was the, first step to be proved, before considering its effect. That was amply shown, without the answer, by the bond from the respondents to Smith, which had been assigned to most of those persons claiming an interest; next, by the bond of most of them given to pay their proportions of the original consideration for the land to Munroe; next, by the active part some of them took in getting certificates and an agent to make this new sale; next, by the testimony of most of them, on the stand, in support of their interest; and finally, by the allegations in the bill, and the grounds taken at the hearing and in the decree. It cannot be set up by any persons, that such a bond did not, in law, give an equitable interest, for want of consideration, when it is a sealed instrument. Or, in the case of Boynton, (one of them not. included in the assignment of the bond,) that his interest was by parol, and without consideration, or was not mutual, when he procured one of the defendants to make the advances for him, and when the contract has already been executed, and this objection comes afterwards from a third person, and not a party to the agreement. See Tufts v. Tufts [Case No. 14,233], Mass. Dist., Oct. term, 1847.
An executed contract, though without consideration, mutuality or writing, to take it out of the statute of frauds, cannot afterwards be objected to by third persons, if it can be by the parties, however the latter may object while it is executing. And where one has stipulated to allow another an interest in certain premises, and admits, in his answer, that the interest was a just one, and this interest has since been recognized and executed, it is too late for other persons to object to the legal or equitable propriety of it, and on that account to attempt to avoid it. See cases in Tufts v. Tufts [supra]. It will not do in chancery to consider it unconscientious or unjust to treat such an interest as valid, when the parties to it have not chosen to make any objection, either on technical or substantial grounds. Nor would this decision, exonerat
Considering the interests of all these other .persons beside the defendants, to whom parts of the consideration were paid at the time .as proved by testimony and circumstances, even without the aid of the answers of the defendants, it becomes of little importance what in them is or is not responsive on .this point, and the only remaining objection under this exception is to the want of proper -evidence to show actual payments made to these subclaimants to'the extent of their interests. The evidence, as to that, consists, .also, in part, of matter in the answers. Those .are very clear to prove the payment and were not contested at the hearing of the original cause, but are now objected to as incom.petent to prove them. Even now, they can separately be proceeded against, and made liable, unless the neglect of the plaintiffs has been rsuch as to exonerate them, or they have some -other valid defence. So if the defendants had been sued earlier, and the contract rescinded earlier, less harm or injustice would have happened in making them chargeable for all which went into their hands at first, as their resort over to others receiving it from them, .might have thus been more early and successful, while by such delay their remedy over would probably now, in most instances, be worthless. It is probable that some of the answers in respect to this last fact, also, may not be exactly responsive to the bill, and might not alone suffice. Looking, however, to the other testimony, there seems little doubt from that. The oaths of Boynton, himself, Thurs-ton, Porter and others, before the master, and the bond given by most of them to pay their portions of the original consideration, and the fact already and otherwise established, that they were interested in the land in certain proportions, are strong to show that they have be.en paid all to which they were entitled. The very lapse of time which was before referred to, being so long, and no existing claim being made of a failure to pay any of them, coupled with the continued ability of, .at least, one of the defendants, to comply with their obligations, is quite decisive that the payments have been adjusted in conformity with the promises and right which really existed.
There is a further exception taken by the .plaintiffs, that the defendants are not charged with the whole of $3,910, which the plaintiffs paid for them to Munroe. They were charged with only such portions of it as their interests required them in the end to pay. This, we think, was sufficient. They held the whole legal title to the land by deed, and gave their notes for the whole consideration. When they sold it for all interested, and paid over to others the proportions of the money received, it was proper, as the original consideration was not yet due, to take from the others’ obligations to pay their ratio of it. They thus stood in the capacity of trustees, both for buying and selling, and all they did, in these respects, was not for themselves alone, owning but portions, or for themselves as joint obligors. It was rather for all possessing an interest in the premises! And when they received the $3,910, and paid it over to Munroe, as that was the substance of the transaction, it being paid by the plaintiffs for them, they received as well as paid it for all in their due proportions, and are liable individually for only the shares they themselves owned, or were bound to pay. Only that was to go to their real and final benefit, and that they are required to restore. As to the residue, when they collected money of the others to help pay for that, (which was owing to Munroe, and which they alone were bound to him to advance,) they collected only the portions which remained due from the others after applying their share of the $3,910. They hence cannot be considered as recovering back anything of this $3,-910, but receiving the balance due from the others interested, after allowing to them their share in that sum paid by the plaintiffs.
The fourth exception is founded on the idea, that the master took for granted, as if already settled by the decree, what he ought to have decided on evidence offered before him, i. e. the interest of these particular claimants under the defendants. Now, although the fact of an interest in third persons had been alleged in the bill itself, and admitted in the answer, and proved by various testimony, yet I am not aware that the names of those possessing such an interest, or their .exact proportions, were shown with precision, except in answers. And as those answers may not, in these respects, have been responsive to the bill, it would have been proper for the master to have resorted to other evidence for these particulars. The decree did not decide who in fact were the particular claimants, and their proportions, as it was not necessary, in .order to decide on the merits. Again, it did not seem to be controverted, that these persons named by the master were the persons, and had the proportions in the sub-claim under the defendants, which both sides conceded to exist.
Has this view of the master, then, if to some extent erroneous, led to any error or mistake in the results? That is not pretended. All the evidence and circumstances concurred in support of that interest, and it is well settled, as to errors in ruling on evidence
The fifth and last objection is, that the master does not distinguish between rights and obligations of the defendants or transactions of theirs with others after the sale of the land, and those before. But this, I apprehend, is misunderstood. The master does not appear to have taken the interests or duties of the parties for a guide, as they stood at any other time than the sale, though he may, and properly has, looked to their transactions after-wards, as in pursuance and in affirmance of those previous interests and duties. And at times they may be some evidence of what the prior contracts and interests had been, and therefore deserve attention in that view. But we see no instance of the master’s making any new arrangement after the sale, a test or standard of any old obligations. The new bond, given by the sub-claimants after the sale, to pay their proportion of the original consideration to Munroe, if not paid by the plaintiffs, is the new contract or transaction which is probably meant to -be referred to. But that was only a new form of securing what was their duty before to accomplish, i. e. the payment of that portion of the consideration to be paid for the land, which their share in the land rendered proper. The duty to pay that existed from the time their interest existed, and the new bond was only a new evidence or new security concerning it.
Judgment according to the report on the de•cree.