author: Beaming, V. C.

text:
    The Board of Chosen Freeholders of the County of Cumberland v. Caroline Buck et al.
    [Submitted January 23d, 1912.
    Determined January 26th, 1912.]
    1. A deed to the board of chosen freeholders of a county recited that the grantors “do give, grant, bargain, sell and convey unto the board * * * and to their successors, to and for the use and purpose of building and erecting thereon public offices for the clerk and surrogate of the county * * * to have and to hold the said lot of land, and the right to use the alley aforesaid, unto the board, * * * and their successors, and to their only proper use, * * * so long as the same shall be used for the purposes hereinbefore mentioned and no longer,” and the covenant for quiet enjoyment warranted peaceable possession, “so long as the same shall be used for the purposes aforesaid.”—Held, that the deed gave the board a determinable fee, terminable upon ceasing to use the lot for a building for county purposes.
    2. A determinable estate may be dependent upon a condition or may arise upon a limitation; in case of a condition, the happening of the event, upon which the estate may be defeated, not ipso facto defeating it without some act by the grantor, such as entry, while in the case of a conditional limitation the estate terminates at once upon the happening of the event, and reverts to the grantor, or the person to whom it is limited over.

      3. The operative words in case of a conditional limitation are words of time, such as “while,” “so long aswhile in case of conditons or covenants they are words of condition, such as “on condition that,” “provided,” &c.
    4. Words in a deed which limit the continuance of the estate and mark the time at which it terminates are words of limitation; but, if they make the estate liable to be defeated in case the event expressed should arise before the termination of the estate, they are words of condition, and pass a conditional estate.
    6. Under act February 13th, 1798 (Rev. 18T< p. 1&7 § 2), providing that the county boards of chosen freeholders may acquire, purchase, have, and hold any lands, &c., in trust for the use of their said counties, and suck other uses as may be designated by law, a county board would have power to purchase a lot for county buildings, to be held by the county only so long as it was used as a site for buildings used by .the county, if the board deem that the best interests of the county demanded that it purchase such estate.
    6. A deed described the land conveyed by metes and bounds, which included a lot theretofore conveyed to the county, but after such description it provided, “containing t after excepting out what was heretofore sold to the county) twenty-four square rods of land, be the same more or less,” and the habendum clause was, “to have and to hold, * * ;|: except that part before mentioned sold to the county.”—Held, that the deed clearly did not convey the lot theretofore conveyed by the grantor to the county.
    7. A description by metes and bounds in a deed covered a lot theretofore conveyed to the county,- but provided after the description, “excepting thereout and therefrom a certain lot theretofore sold and conveyed * * * to the board of chosen freeholders of the county,” referring to the place of record, “after which said exception there is supposed to contain about twenty perches of land.”—Held, that the deed excepted grantor’s reversionary right in the lot theretofore conveyed to the county.
    On bilb &c., to qniet title.

      The hill is a statutory bill to quiet title to real estate, and is filed by the board of chosen freeholders of the county of Cumberland to quiet title to certain land in the city of Bridgeton, now in the 'possession of that board, on which land the old clerk’s and surrogate’s offices of that county stand.
    Defendants, as heirs-at-law of John Buck, deceased, make claim that the recent removal of the county records from the buildings on the lot in question to the new county buildings has been operative to defeat the title of the county and vest an absolute title, as to the undivided one-half thereof, in them.
    The lot in controversy was conveyed to the board of chosen freeholders of the county of Cumberland by John Buck and Daniel P. Stratton, who were equal owners as tenants in common, by deed o£ conveyance dated September 1st, 1815. The deed expresses a consideration of $5 as paid to the grantors.
    The words of grant are—
    “Do give, grant, bargain, sell and convey unto the board of chosen freeholders of the county of Cumberland aforesaid, and to their successors, to and for the use and' purpose of building and erecting thereon public offices for the clerk and surrogate of the county of Cumberland, that lot,” &c. '
    The words of the habendum clause are—
    “To have and to hold the said lot of land, and the right to use the alley aforesaid, unto the board of chosen freeholders of the countj' of Cumberland aforesaid, and their successors, and to their only proper use, benefit and behoof, so long as the same shall be used for the purposes herein-before mentioned and no longer.”
    The covenant of quiet enjoyment is as follows: "And that in the quiet and peaceful possession of the same so long as the same shall be used for the purposes aforesaid,” the grantors will warrant and defend.
    In the year 1815 the clerk’s and surrogate’s offices were erected by the county on the lot and have been used as such, continuously, until recently. The use of the property for the purpose named has now been permanently abandoned.
    The rights o£ the heirs-at-law of Daniel P. Stratton, the other grantor, have been conveyed to complainant.
    Pinal hearing has been had on a written stipulation of facts.

      Mr. Boscoe C. Ward and Mr. Walter II. Bacon, for the complainant.

      Messrs. Hampton & Fithian, for the answering defendants.
   Beaming, V. C.

It is contended in behalf of the county that the language of the deed in question which relates to the use of the premises conveyed must be construed as a mere covenant; but I think it is entirely clear that the deed vests in the grantees a determinable fee. State v. Brown, 27 N. J. Law (3 Dutcher) 13, 20; 4 Kent Com. 10. A determinable estate may arise from and be dependent upon a condition, or it may be an essentially different estate arising from a limitation, the latter estate being sometimes called a conditional limitation. These two well-recognized determinable estates differ materially in their formation and quality, and their essential difference is material in the consideration of the deed in question. In a conditional estate the happening of the event upon which the estate may be defeated does not, in itself, operate to defeat the estate; some act must yet be done (such as, at common law, making an entry) to defeat the estate: the grantor may never elect to defeat the estate; in such an estate there is no reverter arising wholly from the happening of the event upon which the estate may be defeated. In a limitation the estate determines, ipso facto, upon the happening of the event which marks its boundary as to time, and the estate thereupon goes over at once to the grantor by reverter, or to the person to whom it is limited upon the happening of such contingency, if it be limited over. The ordinary technical words by which a limitation is expressed relate to time, the technical words given in 2 Bac. Abr., tit. “Conditions” (H), 117, being “dam, dummodo, quandiu, donee, quosque, ubicunque, usque ad, iamdiu.the words by which conditions are created arc “sub conditions, ita quod, si contingat, proviso.” The general rule in determining whether words are of condition or of limitation is stated by Washburn in his work on Beal Properly, as follows:

“Where they circumscribe the continuance of the estate, and mark the period which is to determine it, they are words of limitation; when they render the estate liable to be defeated, in case the event expressed should arise before the determination of the estate, they are words of condition.”

'Tbe distinction between the two classes of determinable estates here under discussion is elaborately considered in 1 Washb. Real Prop. *457 to *461. This distinction between a condition and a limitation is stated in 2 Blacks. Com. 155, as follows:

“A distinction is, however, made between a condition in deed and a limitation, which Littleton denominates also a condition in law. For when an estate is so expressly confined and limited by the words of its creation, that it cannot endure for any longer time than till the contingency happens upon which the estate is to fail, this is denominated a limitation; as when land is granted to a man so long as he is parson of Dale, or while he continue unmarried, or until out of the rents and profits he shall have made 500£ and the like. In such case the estate determines as soon as the contingency happens (when he ceases to be a parson, marries a wife, or has received the 500£), and the next subsequent estate, which depends upon such determination, becomes immediately vested, without any act to be done by him who is next in expectancy. But when an estate is, strictly speaking, upon condition in deed (as if granted expressly upon condition to be void upon the paymenr of 4fl£ by the grantor, or so that the grantee continues unmarried, or provided he goes to York, &e.), the law permits it to endure beyond the time when such contingency happens, unless the grantor or his heirs or assigns take advantage of the breach of the condition and make either an entry or a claim in order to avoid the estate.”

See, also, 4 Kent Com. *126. It will thus be observed that while it may at times become difficult to determine whether a given provision in a deed or devise is to be recognized as a condition or a mere covenant or trust, the essential qualities and characteristics of a limitation are too clearly defined to be easily confused. The words “provided” or “on condition,” though appropriate to the creation of a condition, may also be appropriately used to introduce a covenant or trust (MacKenzie v. Trustees of Presbytery of Jersey City, 67 N. J. Eq. (1 Robb.) 652; Mills v. Davison, 54 K. J. Eq. (9 Dick.) 659); but the words “so long as,” followed by the words “and no longer,” can have but one significance in the absence of some element clearly disclosing that they were not designed to defeat the estate granted at the expiration of the period of time named.

The provisions of the deed here in question so clearly and adequately create a limitation that no field for construction appears to exist. The habendum of the deed, which is wholly consistent with all its other parts, and therefore determines what estate is granted, is: “To have and to hold * * * so long as the same shall be used for the purposes hereinbefore mentioned and no longer.” The period named marks the limitation of the estate as to time; at the end of that period the determinable estate ceases and the fee vests in the grantor, or his heirs, by reverter. The words “so long as the same shall be used for the purposes hereinbefore mentioned” are sufficient for the creation of a limitation, the added words “and no longer” remove all possibility of doubt touching the quality of the estate granted. It is clearly impossible to regard this language as not having been intended to defeat the estate granted or as in the nature of a covenant or trust.

It is also urged in behalf of the county that the board of chosen freeholders of that county had no power to accept a deed containing a limitation of the nature of the one here in question, and ‘that the limitation must therefore be declared void. The statute to which my attention is directed defining the powers of the board oil chosen freeholders is section S’ of the act of February 13th, 1798. Rev. p. 317. It is there provided:

“That tile said boards of chosen freeholders, in and for their respective counties, and their successors, shall be able and capable to acquire, purchase, receive, have and hold any lands, tenements, hereditaments, goods and chattels in trust to and for the use of their said counties, respectively, and for such other uses as are or may be designated by law.”

I am impressed that the power to “acquire, purchase, receive, have and hold” real estate for the use of the county includes the power to acquire any tenure which the best interests of the county may demand. It may be conceded that a contract upon the part of the board of freeholders wherein they agreed not to remove the location of county buildings would be contrary to public policy and void; but the deed in question has not, at any time, been operative to deny to the board or its successors the right or privilege to locate county buildings where the best interests of the county might demand. The stipulated facts disclose that the lot in question was conveyed to the board for almost a nominal price and that a considerable sum of money was at the same time contributed to the county to defray the cost of the buildings; it is impossible to say now that the benefits flowing to the county through the acquisition of the determinable fee in question were not greater than could have been secured by the purchase of an absolute estate. The situation here presented is not analogous to an attempt to enforce a contract of a county wherein the county has agreed not to remove its public buildings, or to enforce a covenant against the free exercise of municipal functions.

It is also urged that as John Buck, one of the grantors in the deed in question, was a member of the board of freeholders at the date of the conveyance in question and sought by the limitation contained in the conveyance to benefit other property then owned by him in the vicinity, his heirs must now be denied the benefits of the limitation. The stipulation of facts does not state that John Buck was a member of the board. It states that he was on the building committee appointed by the board to superintend the erection of the buildings. It also states that he was the owner of a valuable property in the immediate vicinity, and carries the inference that he was interested in having the county buildings located and maintained on tire lot by him conveyed to the board of freeholders. But unless it can be said to have been unlawful for the board to accept the determinable fee in question, I think it is clear that the transaction cannot be successfully impeached at this time.

It is also claimed in behalf of the county that whatever right John Buck had under the deed in question has been lost to him and his heirs by reason of a conveyance made by John Buck to Smith Bowen on November 3d, 1826. It is assumed by counsel of complainant that prior to our act of March 14th, 1851 (P. L. 1851 p. 282), the right of re-entry for condition broken could not be assigned (Southard v. Central Railway Co., 26 N. J. Law (2 Dutcher) 13; Bouvier v. Baltimore and New York Railway Co., 67 N. J. Law (38 Vr.) 281) ; and it is urged that the effect of an attempted assignment is to deny to the assignor his right of re-entry and to confer no rights upon the assignee. Hooper v. Cummings, 45 Me. 359. To what extent the principles thus urged by complainant may be applicable to a limitation, it is unnecessary to here consider, for an examination of the conveyance from John Buck, above referred to, discloses that the conveyance did not include or attempt to include the county lot here in question or any rights of John Buck therein. As heretofore stated the conveyance to the board of freeholders, here in question, was from John Buck and Daniel P. Stratton, who were owners, as tenants in common, of a larger tract of land, ¿ portion of which was conveyed by them to the county in the manner already fully set forth. Subsequently (March 10th, 1818), Buck and Stratton divided by quitclaim deeds the portion of the tract which was not included in the deed which they had made to the county. In the quitclaim deed from Stratton to Buck the land conveyed was adjacent to the tract theretofore conveyed to the county on three sides of the county tract. The description in the deed was by metes and bounds which included the county tract; at the end of that description, however, the following clause was added: “Containing (after excepting out what was heretofore sold to the county) twentv-lour square rods of land, be the same more or less.” The habendum clause was, “To have and to hold, &e., except that part as before mentioned sold to the county.” It is manifest that this deed does not attempt to convey to Buck any reversionary rights of Stratton in the county tract. While the land therein described includes within its boundaries the county tract, the concluding words of the description clearly withdraw from the operation of the preceding part of the description the territory covered by the county’s deed; the habendum makes a like exclusion. The exceptions are not of the estate conveyed to the county, but are of the territory conveyed to the county; the exception at the end of the description is peculiarly clear in this respect.

Subsequently (November 3d, 1826), John Buck conveyed nearly all of the land covered by the foregoing deed from Stratton to Smith Bowen. The description in this deed was by metes and bounds, and, like the preceding deed, included the tract theretofore conveyed to the county. At the end of the description the following language is added:

“(Excepting thereout and therefrom a certain lot heretofore sold and conveyed by the said John Buck and Daniel E. Stratton to the board of chosen freeholders of the county of Cumberland by deed dated September 1st, 1815, and is recorded in clerk’s office of said county in Book EE of Deeds, page 10, &c., reference thereunto will more fully appear) after which said exception there is supposed to contain about twenty perches of land be the same more or less.”

It seems equally clear that this deed, in turn, does not convey or attempt to convey the reversionary right of John Buck in the county tract. The exception, at the end of and forming a part of the description, manifestly excepts from the territory covered by the first part of the description the territory covered by the deed to the county.

I reach the conclusion that when the county of Cumberland permanently abandoned the use of the lot in question for county offices an absolute title, as to the undivided one-half thereof, vested in the heirs of John Buck, deceased, by reverter. The title to the alley described in the deed to the board of freeholders was appurtenant to the principal estate granted and necessarily fails with it. The exception from the territorial description contained in the deed from Buck to Bowen includes the alley as clearly as it includes the lot; it follows that the present title of the heirs of John Buck, deceased, extends to the exterior boundary of that alley.


source: Caselaw Access Project

author: Leaking, Y. C.

license: Public Domain

text:
    Stephen Keulper et al. v. Esterbrook Reeve et al.
    [Submitted May 16th, 1911.
    Determined May 22d, 1911.]
    1. The failure of the complainants in an interpleader suit to state in their bill that they, as owners, gave notices to the contractor of the several stop-notices of the claimants upon the fund arising in their hands out of a building contract, does not render the bill demurrable.

      2. Neither is such bill demurrable because it does not disclose that specifications were filed with the building contract. If the contract as filed does not include the specifications, that fact is available by answer.
    On demurrer of Eisele & Manning to bill of interpleader.

      Mr. Charles B. Stevenson and Messrs. French .& Richards, for the demurrants.

      Mr. George J. Bergen, contra.

   Leaking, Y. C.

The objections to the bill, as urged by demurrant at the argument, are as follows:

First. That it does not appear that complainants are indifferent and disinterested, but on the contrary they have guaranteed or made payment of some of the claims and deducted them, and now ask defendants to interplead as to the balance.

A motion was heretofore made against this bill in behalf of other defendants. This same objection was then urged and passed upon by me. A copy of my memorandum opinion then filed will be hereto annexed as embodying my present views on that question. Post, p. JfSS.

Second. That the bill does not disclose sufficient doubt touching the rights of the respective claimants to justify a bill of interpleader.

That question was also considered by me under the former motions.

Third. That the bill fails to show that complainants, as owners, gave notice of the several claims to the contractor.

This objection to the bill has not been heretofore considered by me.

I do not think it material to complainants’ right to pay the money in their hands into court for distribution among the parties who have filed legal stop-notices that the bill disclose whether lie gave written notices to the contractor of the stop-notices so served. Any failure of complainant to give such notices cannot deny to the materialmen who maj^ have served proper stop-notices their statutory lien on the fund. As pointed out in the annexed memorandum opinion, all payments which have been made by the owner are clearly proper credits to him as of the date of the completion of the building, except as to prior stop-notices, and the funds paid into court are more than ample to satisfy all persons claiming under stop-notices served prior to that date, and stop-notices served subsequent to that time are operative only against the unappropriated balance. If complainants have, perchance, incurred personal liability to demurring defendant by reason of failure to give notice to the ■contractor of stop-notices, such personal liability to demurring defendant will neither enlarge nor diminish the rights of the persons who have served stop-notices to enforce their liens against and thereby appropriate the balance of the contract price now in the hands of complainant, nor will any final decree in this case be operative to bar any personal claim demurring defendant may have against complainant. I am convinced that the failure of complainant to state in his bill that he gave notices to the contractor of the several stop-notices served will not render the bill demurrable as to demurring defendant. So far as the present bill discloses, complainant appears to have no interest whatever in the fund in his hands, and I see no reason emanating from the objection now under consideration, why he should not be privileged to require all defendants who have asserted a claim against that fund to settle among themselves their several rights against the fund.

Fourth. That the bill does not disclose that specifications wore filed with the contract.

This objection to the bill has not been heretofore considered.

The statute contemplates that specifications accompanying a contract shall be filed. A contract may be so drawn that all necessary specifications touching material and dimensions are embodied in the contract itself. I apprehend that it is only where the contract is made with reference to independent specifications that the statute contemplates that the separate specifications shall be filed; such specifications necessarily became an important part of the contract and should be accessible to materialmen and laborers. The present bill asserts that the “contract was duly filed on the 12th day of November, 1909, in the clerk’s office of Camden county, in accordance with the statute in such cases made and provided.” In the present aspect of this case I think this averment sufficient as against the demurrer. As already suggested, the contract, in its broad sense, includes all matters agreed upon by the parties; furthermore, the present bill seeks only that the several defendants who assert a claim against the fund in complainant’s hands shall interplead. In the absence of attachments or garnishments, claims against the fund exist only upon the supposition that the statute has been complied with so far as the requirements touch* ing filing are concerned. If the contract as filed does not include the specifications, the force of that fact is available by answer. Under such conditions I think the bill should be sustained. See 1 Dan. Ch. Pl. & Pr. 542, 543. But in view of doubt suggested by the bill whether sufficient specifications have been filed, and the possible necessity of an answer to raise that issue, I think no costs should be taxed.

I will advise an order overruling the demurrer, but without costs.


text:
    Stephen Keupler et al. v. Esterbrook Reeve et al.
    [Heard March 13th, 1911.
    Determined March 16th, 1911.]
    1. Complainants in an interpleader suit, as owners, are entitled to deduct from moneys due under a building contract orders given by the contractor and guaranteed by them, and to compel the defendant claimants to interplead, as to the balance, defendants’ stop-notices having been given after the last installment fell due.-
    2. Where a bill of interpleader alleges that the several claimants to a fund growing out of a building contract have made claims on the complainants to the exclusion of other claimants, and sets forth the substance of the stop-notices manifesting such claims in a manner which may be said to create substantial doubts as to the sufficiency of some of the notices, it is suiBcient to sustain the bill on a motion to dismiss.
    On motion to dismiss bill of interpleader.

      Messrs. Wilson & Carr and Mr. Francis G. Weaver, for the-motion.

      Mr. George J. Bergen, opposed.
   Leaking, Y. C.

As the present motion is, in effect, a demurrer to the bill, the-single question here presented is whether the bill on its face discloses facts sufficient to sustain a bill of interpleader.

On August 12th, 1910, the day the building was completed,, complainants were, by the terms of the contract, required to be 'in possession of the final installment of the contract price, the amount of which was $1,616. Complainants were, on that day entitled to pay that money to the contractor, except as against such rights in that fund as had at that time arisen in behalf of' others. An advance payment made by complainants, as owners, to the contractor or to his order prior to that date is necessarily treated as made on that date and will discharge the owners to the-amount of such advance payment, except as against rights off others.which prior to that date have arisen in the fund. A stop-notice served subsequent to the time the last installment became due is operative only against such part of the last installment as-remains unpaid or unappropriated at the time such subsequent stop-notice is served. Taylor v. Reed, 68 N. J. Law (39 Vr.) 178. There can be no doubt, therefore, touching the right of complainants to interplead, so far as the objection is concerned, that they should pay into court the full amount of the last installment without first deducting the sum of $496, which was paid on contractor’s order May 25th, 1910, for the stop-notices served have no rights as against that payment.

Complainants also deduct from the amount of the last contract installment $53, which was paid by complainants December 23d,. 1910, to the Haney-White Company by virtue of a guarantee made by complainants to that company May 21st, 1910, wherein complainants guaranteed the payment of an order issued to that company by the contractor on that date against complainants for money due that company under that contract. With such an accepted or guaranteed order outstanding at the time the last installment fell due, the order clearly at this time became fully operative in favor of the person holding the order as an equitable assignment of the fund to the amount of the order, as against all persons who at that time had no prior rights. It therefore becomes immaterial as to such subsequent claims whether that order was paid by complainant on the day the installment fell due or at a subsequent day, for the holder of the order was entitled to the money on that day.

I am also satisfied'that the bill discloses sufficient uncertainty as to the rights of the several claimants to entitle complainants' to file the bill. The bill alleges that the several claimants to the fund have made claims on complainants to the exclusion of other claimants, and sets forth the substance of the stop-notices in a manner which may be said to create substantial doubts as to the sufficiency of some of the notices. These averments I think sufficient to sustain the bill.


author: Teaming, V. C.

text:
    William M. Clevenger v. James A. Quinn.
    [Submitted January 26th, 1911.
    Decided March 8th, 1911.]
    On bill for an injunction—Held, upon the evidence that an injunction cannot properly be issued.
    Final hearing on pleadings and proofs.

      Mr. William M. Clevenger, for the complainant, pro se.

      Mr. George A. Bourgeois, for the defendant.
   Teaming, V. C.

I am convinced that an injunction cannot he properly issued in this case.

First. As to the twelve feet building line restriction. The original covenants printed in the deeds contained no restriction against building out to the property lines on the four corners of Stenton place and Atlantic avenue, and it is entirely clear that the building restrictions contained in the agreement of March 12th, 1905, cannot be enforced against defendant. The interlineation in defendant’s deed which refers to “a deed or agreement” is wholly meaningless, standing alone; when considered in connection with the circumstances which surrounded and entered into the transaction, it is ascertained that no agreement in fact existed at that time, and that at that time an agreement was, at most, contemplated, and that defendant was informed by Mr. Wootton that these words which were interlined in his deed were to give defendant the privilege to have his lots face on either street, and that the agreement as it was afterwards made embodied, in connection with the privilege referred to, a restriction that a building should not be erected nearer than twelve feet to Stenton place. The evidence discloses that defendant had do knowledge or intimation of any plan or contemplated plan which included the building restriction and has never consented to it; under these circumstances, he manifestly cannot be bound by it. It seems entirely clear that the twelve feet building restriction on Stenton place cannot be enforced against defendant.

Second. As to the dividing lines. • I aui also satisfied that this court cannot properly enjoin the erection of the building'in such manner that it may extend across the dividing line between the two lots as they were originally delineated on the map. Assuming that the fifth covenant of the printed deed means that the dividing lines of the lots on Atlantic avenue should never be changed under any conditions—that is, that these lots should always remain as lots fronting on Atlantic avenue of the width shown on the map and extend in depth one hundred feet therefrom, the evidence discloses that this covenant has been disregarded as to three of the corners of Stenton place and Atlantic avenue. It is now sought to enforce that covenant as to the remaining corner. The disregard of that covenant on the three corners referred to and the- erection of the buildings contrary thereto was pursuant to an agreement signed by almost every person in interest, except defendant. Defendant refused to sign the agreement because it also contained a provision requiring that the buildings which should be erected contrary to the terms of the original covenant should be erected twelve feet from the property line of Stenton place. The fact that complainant and the other persons who signed the agreement determined to abandon the old dividing line covenant on condition that a new restrictive covenant accompany the abandonment of the old one cannot be operative to defeat the effect of the abandonment. Defendant at no time consented to the new restriction or to a conditional abandonment of the old one. The result of the action of complainant and his associates has been to destroy the dividing line covenant on the three corners nearest tc defendant’s property, and it seems clear that complainant is not now in a position to say to defendant that defendant must observe the covenant which complainant and his associates have disregarded merely because defendant is unwilling in disregarding it to adopt a new restriction to which he is in no way bound and which complainant regards as beneficial.

It is also urged in behalf of defendant that the dividing lines of lots are not “changed” by merely erecting a building across the dividing lines; that the dividing line can only be changed by a sale, and not bj7 the use to which the land is devoted, and that a covenant against use cannot be created by implication. Fortescue v. Carroll (New Jersey Court of Errors and Appeals), 75 Atl. Rep. 923, is referred to in support of this contention. I think it unnecessary to give consideration to this contention by reason of the views already expressed.


author: Howell, V. C.

text:
    Elsie H. de Festetics v. Gyula de Festetics et al.
    [Submitted November 24th, 1911.
    Decided November 29th, 1911.]
    A child of parents who had separated, died in New Jersey. The mother, a non-resident, had been awarded the custody of the child by the court of a sister state and the father had surreptitiously taken the child into New Jersey. 'The parents had assumed a position of intense hostility to each other.—Held, that equity had jurisdiction to control the burial of the child within the state in a plot to be provided by the father approved by a master of the court, appointed to supervise the burial, at the ex-pepse of the father, subject to the rights of the parents of equal access to the grave.
    Final hearing on bill, answer, replication and proofs.

      Mr. Frank W. Hastings, Jr., for the complainant.

      Mr. Charles C. Hommann and Mr. Robert N. Crane, for the defendants.
   Howell, V. C.

This is a controversy between husband and wife over the dead body of their son who died on June 14th, 1910, aged about twelve years. At the time of Ms death he was with his father, the defendant, who was residing at Plainfield, in Union county; the mother, the complainant, was then a resident of the State of New York; they had separated many years before. After their separation the child was awarded to the mother by the New York courts; he was surreptitiously taken by the father and brought from the State of New York into the State of New Jersey several years ago. The pleadings disclose irreconcilable differences between the parents, which exist to the present time. At the time of the death of the child its body was placed in a receiving vault in a cemetery at Plainfield, where it has remained ever since; no arrangements for its burial or other final disposition have ever been made by the parties.

The mother now brings this suit for the purpose of obtaining the custody of the body and committing it to sepulture in a family burial plot in which she has an interest in a cemetery either at Eye, New York, or at Mt. Auburn, Massachusetts. She states, however, in her bill that she would be willing to have the child interred in the Plainfield cemetery, in whose receiving vault it now lies.

The questions raised were these—first, whether this court had any jurisdiction in the premises; second, whether this court could, or if it could, whether it would direct the burial of this child to be had in a foreign state, and third, whether it was not the right and duty of the father, without supervision or advice, to bury ilie child wheresoever he might choose.

These questions all relate to the original burial of the dead body and not to its exhumation or removal to another place of sepulture. We get little light on the subject from the cases in our own state, which seem to settle three propositions—first, that there is no property right in a dead body; second, that after, the body shall have been buried it is in the custody of the law; third, that the removal of a body once buried is subject to the jurisdiction of this court. Peters v. Peters, 43 N. J. Eq. (16 Stew.) 140; Smith v. Shepherd, 64 N. J. Eq. (19 Dick.) 401; Toppin v. Moriarity, 59 N. J. Eq. (14 Dick.) 115.

An examination of the adjudged cases generally leads to the conclusion that there is a substantial agreement of judicial thought on the following propositions, touching the original burial of a dead body.; namely, first, the duty is cast in the first instance upon the person in whose house a man dies to carry the body to the grave, covered, and to bury it decently at his own expense, unless some one having a more urgent duty or a greater right shall intervene. Patterson v. Patterson, 59 N. Y. 583; Rex v. Stewart, 12 Ad. & E. 773; second, the person upon whom this right and duty next falls is prima facie the personal representative ; a duty is cast by law upon the executor or administrator to see to it that the body shall have a decent burial, and for the purpose of performing his duty he is entitled to its custody. By our statute he is.allowed his reasonable expenses in that behalf as a preferred claim against the estate. Toppin v. Moriarity, 59 N. J. Eq. (14 Dick.) 115; 2 Wms. Ex. 165; Williams v. Williams, 20 C. D. 659; 51 L. J. Ch. 385. In Indiana and South Carolina, however, the next of kin are given the paramount right; third, in ease there shall be no personal representative, or he should see fit not to employ himself in the matter, the duty and right then devolves upon the next of kin to the deceased in the order of their kinship ; that is to say, of the whole body comprising the next of kin those nearest of kin shall have the strongest right. Pettigrew v. Pettigrew, 207 Pa. 313; 64 L. R. A. 179; 56 Atl. Rep. 878; fourth, this, however, is not an invariable rule, because a more distant relative or even a friend not connected by ties of blood may have a superior righl under exceptional circumstances to one nearer of kin, as was held in Scott v. Riley, 16 Phil. (Pa.) 106. And, generally speaking, the surviving husband or wife has the right to control the burial of the deceased spouse, as against the next of kin. Larson v. Chase, 47 Minn. 307; 28 Am. St. Rep. 370; fifth, all the foregoing rules must, however, be subject in their application to the jurisdiction of this court whenever the same shall be properly invoked by the parties in interest. Perhaps it is stating their effect too broadly to call them rules; but they are guides to be considered and applied as the case may require when the occasion arises. It would be embarrassing in many cases to find that they were hard and fast rules and binding strictly on the conscience of the court because the court might find its duty to lie entirely beyond their scope. Each case must be dealt with separately, and in accordance with its own circumstances. The whole situation is admirably -summed up in the opinion in Pierce v. Swan Point Cemetery, 10 R. I. 227; 14 Am. Rep. 667. It is there said: “Although, as we have said, the body is not property in the usual recognized sense of the word, yet we may consider it as a sort of quasi property, to which certain persons may have rights, as they have duties to perform towards it, arising out of our common humanity. But the person having charge of it cannot be considered as the owner of it in any sense whatever; he holds it only as a sacred trust for the benefit of all who may from family or friendship have an interest in it, and we think that a court of equity may well regulate it as such, and change the custody if improperly managed. So, in the case of custody of children, certain persons are prima facie entitled to their custody, yet the court will interfere and regulate it. We think these analogies furnish a rule for such a case, and one which will probably do most complete justice, as the court could always interfere in the case if improper conduct, e. g., preventing other relatives from visiting the place for the purpose of indulgence of feeling or testifying their respect or affection for the deceased.” One other consideration needs to be mentioned, and that is the interest of the public. It is to the interest of the public that dead bodies should be interred decently and in order and as soon as the circumstances of the case will permit; the public morals, the public health, the instincts of our common humanity, the customs of our people all demand that burials shall be so conducted.

Under ordinary circumstances it would be the duty of the father, as next of kin and as the natural guardian of a deceased infant, to bury it and to meet all the expenses appertaining thereto, and he would have the corresponding right of possession for that purpose. It was so held in Burney v. Children’s Hospital, 169 Mass. 57. It is quite likely that such a disposition of the matter would generally be practicable and- satisfactory. But the circumstances here are of such a character as to preclude any such disposition. The parents have assumed a position of intense hostility to each other; and there is little or no prospect of any agreement between them which will observe the proprieties or be considered more than temporarily binding on them.

These considerations lead me to the conclusion that the burial of this child should be accomplished under the direction of .this court with a view to compliance with the customs with which we are familiar, and the observance of the decencies and proprieties of civilized life. The burial must be in the cemetery at Plain-field, in the receiving vault of which the body now lies. I am constrained to deny the application of the mother to permit the burial to take place in a foreign state for two reasons. The first is that she has by her bill signified her consent that the burial shall take place in New Jersey; the other is that this-court would have no means of enforcing its decree touching the matters in dispute after the body was once beyond the boundary line of the state. It might be taken to New York or Massachusetts, or it might be concealed and so placed beyond the jurisdiction of this court. The burial must be in a plot of land to be provided by the father, but subject as to location and suitableness to the approval of a master of this court, who will be appointed for the purpose by the decree. His duty will be to see. that the provisions of this decree touching the interment shall be carried out, .and that no indecorous proceeding shall be had at the burial. In case a religious service should be desired at the grave, the same must be conducted under the supervision of the master, who will see to it that no unseemly or unbecoming acts are committed by the parties. The expense of opening and closing the grave, and such other expenses as are incident to the occasion, must be borne by the father, and if he shall fail to make provision therefor within fifteen days after the service of a copy of the decree on him, further application may be made on behalf of the mother for such relief as she may be thereupon entitled to. The decree will provide that after the burial shall have taken place the body Of no other person shall be interred in the plot, without the allowance of this court, and that no monument, mausoleum or other erection shall be made upon the plot without the like allowance. These matters, and any other matters that pertain to the burial plot, will have to be made the subject of an independent application to the court.

The decree will provide that the parents shall have equal rights of access to the grave; disputes concerning the same will be settled upon application to the court.


author: Howell, Y. C.

text:
    Fred M. Henry v. Lena K. Henry.
    [Submitted January 4th, 1912.
    Decided January 11th, 1912.]
    1. The Divorce act, 1907 (P. L. 1901 p. 1/16 % 6), provides that jurisdiction in divorce may be acquired over a resident by personal service. Section 7 provides that, when the defendant cannot be personally served, jurisdiction may be obtained by publication, followed where practicable-by service on or notice to the defendant without the state. In a suit for divorce against a non-resident, a citation was issued and sent to plaintiff’s solicitor, and was returned into court with service acknowledged by defendant’s solicitor, and appearance was also entered by defendant’s solicitor and an answer to the action filed.—Held, while in ordinary causes •the entry of an appearance and the filing of an answer would give jurisdiction, in divorce suits the proceedings must be strictly adverse and in accordance with the statute, so that no jurisdiction was acquired over the defendant.
    2. Section 9 of the Divorce act of 1907 (P. L. 1901 p. 1/18), which provides that the process and procedure in divorce causes shall be the same as other chancery causes, except so far as other process and procedure is prescribed, is necessarily qualified by sections 6 and 7, which prescribe the process necessary to obtain jurisdiction over a. defendant, and cannot, therefore, be held to authorize service as in ordinary equity proceedings.
    On petition for divorce.

      Mr. Frank E. Bradner, for the petitioner.

      Mr. Paul G. Poder, for the defendant.
   Howell, Y. C.

The petition in this cause was filed on May 26th, 1911. On the same day a citation was issued and sent to the petitioner’s solicitor; it was returned into court on November 27th, 1911, as appears by the clerk’s endorsement thereon, with an acknowledgment of service signed by the defendant’s solicitor in the following words: “Due and legal service of the within citation and certified copy of petition is hereby acknowledged this 20th day of June, 1911, for the defendant.” On August 4th, 1911, an appearance was entered with the clerk by the defendant’s solicitor, and on the same day an answer was filed setting up matters in defence which raised a contentious issue, and the cause was duly brought on for final hearing. At the time of the filing of the petition and from thence hitherto the petitioner was and has been a resident of New Jersey and the defendant a resident of New York, so that personal service could not be had on her.

The sixth section of the Divorce act of 1907 provides as follows:

“For purposes of divorce, either absolute or from bed and board, jurisdiction may be acquired by personal service of process upon the defendant within this state under the following conditions,-’ &c.

Section seven provides:

“When the defendant cannot be served personally with process within this state, and when at the time of the commencement of the action the plaintiff is a bona fide resident of this state, jurisdiction for the purpose of divorce, whether absolute or from bed and board, may be acquired by publication, to be followed where practicable by service upon or notice to the defendant without this state, or by additional substituted service upon the defendant within this state as prescribed by law or rules of court under the following conditions,” &e.

Neither of these methods of acquiriug jurisdiction over the defendant was adopted. On the contrary, the defendant’s solicitor, on June 20th, 1911, acknowledged service of the citation by an endorsement thereon made on that day, and on August 4th, 1911, entered a formal appearance with the clerk and filed an answer. This is manifestly so wide a departure from the statutory method of acquiring jurisdiction as to be wholly inoperative and void. In almost any kind of proceeding other than a divorce proceeding the entry of an appearance and the filing of an answer is sufficient to give the court jurisdiction, but in divorce cases another rule prevails. There the statute must be strictly followed, for the reason that the issue does not alone concern the parties to the cause; it concerns organized society, which is based upon the settled and orderly customs and obligations attendant upon the marriage status; it will not permit that status to be changed or modified except in the manner pointed out by the laws which it has sanctioned. Parties cannot be permitted to become divorced by any sort of consent. The proceeding in all its parts must be strictly adverse and in accordance with the statute. The public interest does not permit a decree upon consent. No admission binds the court, and the analogy of ordinary actions cannot be applied. Griffiths v. Griffiths, 69 N. J. Eq. (3 Robb.) 689.

The authorities cited on behalf of the petitioner do not apply, for the reason, that they arose under statutes which were in force prior to the Divorce act of 1907 and are now repealed. The difference lies in this. In the former acts it was provided that the like process and course of practice and procedure should be had and pursued in all divorce cases as were usually had and pursued in other cases on the equity side of the court of chancery, except that the answer of the defendants should not be under oath. The ninth section of the act now in force contains a very different provision.

Under the present act the like process and procedure shall be had and pursued in divorce cases as are usually had and pursued in other cases in the court of chancery, except so far as other process and procedure is prescribed by or under the authority of that act. The legislature having by the sixth and seventh sections of the act of 1907 prescribed a method of obtaining jurisdiction over parties to divorce suits, the method so prescribed comes within the exception of the ninth section, so that the sense of it is that in divorce eases the same process and procedure must be pursued as is had and pursued in other chancery suits, except that the defendant must be brought in by the personal service of process within this state or by the substituted service prescribed by section 7. It is true, as was urged by the petitioner, that it has been held that where a defendant is properly brought into court by the methods now prescribed, such defendant may file a cross-petition and compel an answer by the petitioner without the issue of a citation on the cross-petition for that purpose, but this proceeds upon the ground that the parties having once been brought into court by the proper issue and service of process are in court for all purposes. The proceeding is regulated by rule 206a, which was promulgated in 1904.

The result is that the petition must be dismissed.


text:
    Floyd Palmer v. Edna S. Palmer.
    [Submitted December 27th, 1911.
    Decided January 11th, 1912.]
    1. A putative father is incompetent to testify that a child born to the mother after marriage, though conceived before, was not his child.
    2. The chancery court has no authority to provide for the support and maintenance of children upon annulling a marriage, unless authorized by a statute.
    3. P. L. 1902 p. 263 § 8 provides that when the parents of minor children live separately the court of chancery, upon petition of either parent, shall have the same power to make decrees or orders concerning- their care and custody and maintenance as concerning children whose parents are divorced. A husband and wife were married while the husband was under the age of consent, and. a child was bom, and afterwards the husband sued for annulment.—Held that, upon granting an annulment of the marriage, an allowance would bo made to the wife for the support of the child, even though the husband has not yet reached his majority.

      Mr. Chester W. Fairlie, for the petitioner.

      Mr. William J. Kearns, for the defendant.
   Howell, V. C.

The parties to this controversy were married when the petitioner was under the age of eighteen and the defendant under the age of sixteen. Previous to the marriage they had had sexual intercourse, in consequence of which the defendant became pregnant. Bastardy proceedings were instituted against the petitioner, and upon being brought before the magistrate he consented to be married to the defendant, and they were married about February 5th, 1911. The petitioner took the defendant to his father’s house on that day. On the following day a child was born to them. The wife remained there for about two weeks, when she left and went to her father’s house. Shortly after that, and before the petitioner reached the age of eighteen years, he brought a suit in this court to annul the marriage on the ground that he was under the age of consent when it was contracted.

To this petition a demurrer was interposed, which was upheld on the ground that the petitioner could not lawfully disannul the marriage until he had arrived at the age of eighteen years; whereupon he dismissed his suit, and on June 20th, 1911, after he had reached the age of eighteen, filed the present petition, praying that the marriage be annulled upon the ground that he was under age at the time he contracted it. A cross-petition was filed setting up the fact of the birth of the child and praying that the petitioner might be decreed to support it. To this the petitioner replied, admitting all the facts charged, but alleging that he was not the father of the child and therefore was not obligated for its support. At the hearing there was no defence to the original petition. The facts therein alleged, which are necessary to the annulment of the marriage, urere fully proved. The controversy arises out of the allegations of the cross-petition. It consists of two branches—first, whether the petitioner is the father of the child, and, if so, whether he is bound to support it by a decree made in this proceeding. The defendant offered himself as a witness to prove that he was not the father of the child. His evidence on this point was excluded upon the ground that under the circumstances • disclosed in the case it must be conclusively presumed that he was the father of the child and that he could not be allowed to disprove it. This doctrine appears in the English law as early as 1777. In that year Lord Mansfield decided the case of Goodright v. Moss, 2 Cowp. 591, in which he held that it was a rule founded in decency, morality and policy that the parents of a child shall not be permitted to say after marriage that they have had no connection, and that therefore their offspring is spurious, more especially the mother, who is the offending partjr. This authority has been cited in the English courts many times, and has been, followed, with, however, some dissent. The house of lords, in the Aylesford Peerage Case, 11 A. C. 1, held that the declarations of a mother as to the illegitimacy of her child were admissible as evidence of her conduct, although she could not be allowed to make any such statements in the witness box. And in the ease of the Poulelt Peerage Claim (1903), A. C. 395, the question was put upon a level with other questions of fact in an opinion delivered by Lord Halsbury, in which he expressly overruled the opinion of Lord Eomilly in Anon v. Anon, 22 Beav. 481, and 23 Beav. 273. In England, therefore, the question of illegitimacy is now open to proof by the testimony of the father and mother as well as that of other witnesses.

In the United States, however, the old rule seems to prevail. In Dennison v. Page, 29 Pa. St. 420, it was held that the husband and wife were incompetent witnesses to prove non-access in order to establish the illegitimacy of a child born in wedlock but begotten before; this ease appears to have been followed in that state until the present time. In Abington v. Duxbury, 105 Mass. 287, there was a controversy between two towns concerning the settlement of an infant pauper. In the court below the testimony of the mother was admitted to prove that her child Eliza, born in wedlock, was nevertheless illegitimate. It was held that this testimony was improperly admitted. In Mink v. State, 60 Wis. 584, the court said: “The law is well settled that the wife on the question of illegitimacy of her children is incompetent to give evidence of the non-access of her husband during the time in which they must have been begotten. This rule is founded on the very highest grounds of public policy, decency and morality. * * * Testimony of the wife even tending to show such fact, or of amr fact from which non-access could be inferred, or of any collateral fact connected with this main fact, is to be most scrupulously kept out of the case.” In Egbert v. Greenwalt, 44 Mich. 245, it was held that the husband and wife were- incompetent to disprove sexual intercourse between themselves in order to raise a presumption against the legitimacy of the wife’s child. In Boykin v. Boykin, 70 N. C. 262, it was held that at common law neither the husband nor the wife was allowed to prove the fact of access or non-access, and that this rule is founded on decency, morality and public policy and is not changed by a statute allowing parties to testify in their own behalf. Quoting from the opinion: “It is admitted on all sides that the wife cannoi bastardize her issue born in wedlock by proving non-access, but it is contended that she may establish their legitimacy by previous access. Apart from tire authorities before recited directly opposed to this position a slight examination of the principles of evidence will expose its fallacy, for if the wife can give evidence of access she can, by cross-examination, be made to prove non-access, as it is a universal principle without a single exception that where a witness is introduced to prove a fact in issue she may be cross-examined as to that fact so as to disprove it and establish directly the reverse. If, therefore, the wife becomes a witness to prove access she at the same time became a witness to prove non-access, thus exposing the absurdity of the proposition that she may be examined to prove access but cannot be examined to prove non-access.” In Chamberlain v. People, 23 N. Y. 85, the court says arguendo: “It is well settled that neither husband nor wife are competent to prove non-access during wedlock, whatever may be the form of legal proceedings or whoever may be the parties thereto. This rule was established independently of any possible motives of interest in the particidar case upon the principles of public policy and decency.” In our own court of errors and appeals the point was once mentioned, but was not decided. Wallace v. Wallace, 73 N. J. Eq. (3 Buch.) 403. Many other cases could be cited, but these are sufficient to show the trend of American opinion. In my judgment, the American rule, as I shall call it, seems to be a more reasonable one. It does not prevent the admission of evidence on the subject from other sources, but it does prevent the parties from stultifying themselves and committing a fraud upon each other and upon their children. I therefore hold that it was not competent for the husband to testify as a witness to prove the illegitimacy of the child in question.

We now come to the question relating to the support of the child as prayed by the cross-petition. It is urged that this court has no authority to make an order touching the support and maintenance of children unless it is authorized thereto by some statute, that it has no inherent power in the premises. This contention is undoubtedly sound, and unless some statute can be appealed to the court is without authority in the premises. In my opinion, such a statute is to be found in chapter 92 of the laws of 1902. P. L. 1902 p. 259 § 8. The act is entitled “An act concerning minors, their adoption, custody and maintenance.” In the section referred to it is declared that when the parents of minor children live separately, the court of chancery, upon petition of either parent, shall have the same power to make decrees or orders concerning their care, custody, education and maintenance as concerning children whose parents are divorced. While it may be true that that statute was not drawn in contemplation of the casein hand, it seems to be broad enough to authorize the action of' the court in the premises. The annulment of the marriage between these people did not make their child illegitimate, and does not take from them the quality of parents. They continue to be-the parents of this child and they are living separately; they will' hereafter continue to live separately, not by virtue of any agreement between themselves, but by virtue of the decree of this court. The case is one which comes within the exact and strict words of the statute. It may be a technical construction, but if there ever was a case in which technical construction would work equity it is this case. The whole transaction seems to me to be-the most outrageous attempt to escape responsibility that has ever come under my notice. After having seduced the young woman the petitioner married her in order to escape the results of his-unlawful conduct. Having escaped imprisonment, he now brings this suit for the purpose of getting rid of the woman whom he-married, and having escaped the burden of supporting his wife,, he now seeks to escape the burden of supporting the child whom-he acknowledged to be his child by marrying its mother. Such-conduct cannot appeal in the least degree to a court of conscience. There will be a decree dissolving the marriage for the cause aforesaid and making provision for the support of the child. The fact; that the petitioner has not reached his majority can exert no influence on this portion of the case. The amount will be fixed at the time of the settlement of the decree.


text:
    The Knickerbocker Trust Company v. The Carteret Steel Company et al.
    [Submitted October 13th, 1911.
    Decided January 13th, 1912.]
    1. A surety for a purchaser, who pays the purchaser’s debt to the vendor, is subrogated to the rights of the vendor, and to any lien or claim which the vendor might have asserted.
    2. A vendor’s lien is not a right which necessarily arises out of contract, but it is rather an equity raised out of the circumstances, on the ground of a constructive trust, giving the vendor a lien on the property conveyed to secure the payment of the purchase-money; and the force of the lien is not increased by an agreement that a vendor’s lien should be reserved.
    3. A vendor’s lien may be lost by a distinct waiver of it.
    4. A vendor’s lien may be lost by a transfer of the title by the purchaser to a purchaser for value and without notice; but a grantee of the purchaser who has notice, or is put upon inquiry, takes title subject to the lien.
    5. A mortgage intended to cover after-acquired property attaches only to such property in the condition in which it comes to the mortgagors, so that, if already subject to other liens, the general mortgage would not displace them, although they might be junior in point of time.
    6. A provision in a mortgage that it shall cover after-acquired property is a provision which can be given effect only in equity.
    7. A vendor having a right to assert a vendor’s lien may waive it by parol, or even orally, or by acts manifesting an intention to discharge it.
    8. The mere taking of a note or bond of the vendee is not a waiver of a vendor’s lien, since, if a vendor looks to the purchaser alone for his money, without taking any other or further security, the lien continues.
    9. Where a vendor of an interest in land at the time of his conveyance took, as security for payment, a bond of the purchaser, guaranteed by. a third person to a certain amount, and the bonds of the purchaser, secured by the purchasei-’s trust mortgage of the land conveyed, and the vendor afterwards stated to persons about to purchase such bonds that he had conveyed an undivided interest in the lands in question to the purchaser-, free of all liens and encumbrances, the vendor either waived his lien, or was estopped by conduct from asserting it.
    10. The fact that a vendor remains silent as to any vendor’s lien, and fails to assert it when questioned by intending investors as to the property conveyed on which they were expecting a lien, estops the vendor and a party subrogated to his rights from asserting any lien as against the holders of the purchaser's bonds secured by a deed of trust of the land conveyed.
    On exceptions to master’s report in a foreclosure suit.
    On January 10th, 1898, the Carteret Steel Company owned an undivided interest in property in Morris county known as the Copperas Mine Tract, which, it mortgaged to the complainant as trustee to secure an issue of bonds aggregating $100,000. The mortgage contained a provision that it should cover after-acquired property, and a note of this provision was inserted in the bonds secured thereby. Some, if not all, the bonds secured by this mortgage were negotiated on behalf of the Carteret company. On January 1st, 1899, the Carteret company made another mortgage to the complainant as trustee which described the same lands to secure an issue of bonds aggregating $500,000. This mortgage also contained a provision covering after-acquired property, and a note thereof is contained in the bonds secured thereby. There was a reservation of $125,000 of the second bond issue with which to take up and pay off the bonds of the first issue; some, if not all, of the second issue, excepting the above-named reservation, were negotiated on behalf of the Carteret company. There was at that time an undivided one-half interest in the mortgaged premises which was held by one Condit as trustee of the Cobb estate, and also an outstanding life éstate during the life of Sarah J. Bell. On November 29th, 1898, an agreement was entered into by the Carteret company foi’ the purchase of these two outstanding interests for $30,000, of which sum $10,000 is said to have been the purchase price of the life estate. While these outstanding interests were .controlled by different persons, it is quite certain that their purchase was considered by all parties to be a single transaction. Tbe agreement for the sale of these outstanding interests was performed on January 29th, 1899, by the conveyance thereof to the Carteret company. At the time the contract was performed, $10,000 was paid in cash to Mrs. Bell for her life estate, but the purchase price of the undivided half interest in the land was not paid or satisfied to Condit, trustee, the vendor. He took as security for its payment the bond of the company guaranteed by the defendant John P. Jones for $31,000, and bonds of 'the second issue of the Carteret company aggregating $62,000. Subsequently, Condit sued Jones on his guarantee of the bond of the Carteret company and recovered judgment for the amount thereof, which judgment Jones subsequently paid. By virtue of this transaction he claims to be subrogated to any right which Condit, trustee, may have had in the premises. The defendant Jones did not answer the original bill, but allowed a decree pro confesso to be taken against him. Three or four years later he filed an answer to a supplemental bill in the cause setting up—first, that by virtue of the conveyance from Condit, trustee, to the Carteret company on January 29th, 1899, without payment of the purchase-money a vendor’s lien arose in Condit’s favor which, notwithstanding the provision in the trust mortgages to the complainant by which the lien thereof was attempted to be attached to after-acquired property, took precedence over the said mortgages and was a first lien upon the land conveyed, and that not only did the lien arise by operation of the principles of equity jurisprudence, but that there wras a positive oral agreement between the vendor and the Carteret company that such lien should be created and established; second, that inasmuch as he was obliged to pay to Condit the purchase-money evidenced by the company’s bond on which he was surety, he became subrogated to all the rights of the vendor to a vendor’s lien, and he therefore insists that he is entitled to a first and prior lien on the half interest in the said tract of land which was conveyed to the company by Condit, and also upon the life estate to which the company derived title from Mrs. Bell.
    It may be said that there was a further outstanding interest in the title to the lands in question which was got in about the same time.

      The issues in the case were submitted by consent of parties to the master to whom the cause was referred. To his report exceptions were hied; subsequently, the Jones claim appeared, and it was referred to the master with the other issues. The master reported upon the rights of the parties and against the claim of Jones. To his original and'supplemental report exceptions are filed. The only point that was argued was the validity of the J ones claim.

      Mr. John B. Humphreys, for the complainant.

      Mr. John IF. Harding, for the defendant John P. Jones.

      Mr. Frederick IF. Hope and Mr. William J. Leonard, for the certain bondholders.
   Howell, V. C.

The question was raised in limine that the defendant Jones was not in a position to assert any right whatever, for the reason that he could not be subrogated to Condit’s rights.' I think, however, that it is quite clear that Jones by virtue of the doctrine of subrogation is entitled to stand in the shoes of Condit and to assert any claim which Condit might have asserted, and to litigate the same. He was a surety for the vendee, and having paid the vendee’s debt, he is entitled to the place which the vendee had. This is justice, and it is supported by the cases. Meux v. Smith, 11 Sim. 410; Nottingham Building Society v. Thurstan (1903), A. C. 6; Sheld. Subr. § 97.

The doctrines concerning vendors’ liens are firmly established in our jurisprudence. They give to the grantor or vendor who has parted with the title to his property an equitable lien on the property conveyed to secure the payment of the purchase-money. It is not a right which necessarily arises out of contract; it-is rather an equity raised out of the circumstances on the ground of a constructive trust to protect the vendor, to such extent as may be necessary; and it is difficult to see how as between the parties the force or effect of the lien could be enhanced by a mere agreement that a vendor’s lien should be reserved. Graves v. Coutant. 31 N. J. Eq. (4 Stew.) 763; Stickle v. High Standard Steel Co., 78 N. J. Eq. (8 Buch.) 549. This lien, however, may be lost by a distinct waiver of it or by a transfer of the title by the grantee to a purchaser for value and without notice. A grantee or mortgagee from the vendee who has notice or is in such circumstances as that he is put.upon inquiry would take title to or a lien upon the premises subject to the lien of the vendor. These principles are very clear and plain. Van Doren v. Todd, 3 N. J. Eq. (2 Gr. Ch.) 397; Butterfield v. Okie, 36 N. J. Eq. (9 Stew.) 482.

The situation, however, in this case is complicated by the fact that the vendor’s lien and the lien of the mortgage, hostile to each other as they are, arise simultaneously and out of the same transaction. It is the deed from the Cobb estate to the Carteret company which gives rise to the vendor’s lien and which also places the property within the purview of the mortgages. There thus appears to be at the outset a conflict of liens each of which is struggling for priority. The situation, however, is not singular. Similar circumstances have been dealt with by our courts in important cases. The first case that I have been able to find in this state which concerns conflicting liens of the character of those in this suit is Williamson v. New Jersey Southern Railway Co. (1877), 28 N. J. Eq. (1 Stew.) 277. The proceeding in that case was for the foreclosure of a mortgage on the New Jersey Southern railway, which mortgage contained a provision that it should cover future-acquired property. One of the controversies related to the priority between the mortgage and certain mechanics’ lien claims. The mortgage was made and recorded long before the work and materials were done and provided; the property liable for the mechanics’ liens was conveyed to the company before the mechanics’ Jiens were actually filed and so came within reach of the mortgage provision, a situation very similar to the one at bar. Chancellor Runyon held that a mortgage which was intended to cover after-acquired property only attached to such property in the condition in which it came to the mortgagor’s hands; that if it was already subject to mortgages or other liens the general mortgage would not displace them, although they might be junior in point of time. The authority cited for this proposition is New Orleans, &c., Railroad v. Mellen, 12 Wall. 362. The chancellor, by liis decree, gave priority to the mechanics’ liens. The report of the 'case on appeal is found in 29 N. J. Eq. (2 Stew.) 311 (1878). It was there stated in the opinion of Mr. Justice Depue to be a principle of law that where after-acquired property comes into the hands of the mortgagor, subject to encumbrances or liable to liens, the mortgage attaches to the property in the condition in which it comes to the mortgagor’s possession, subject to such liens and encumbrances as are then on it. The decree below was reversed, but not on this point.

Chancellor Runyon held the same rule in United New Jersey Railroad and Canal Companies v. Long Dock Co. (1887), 42 N. J. Eq. (15 Stew.) 547; and it was dealt with again by the court of errors and appeals in Campbell v. Roddy (1888), 44 N. J. Eq. (17 Stew.) 244, and there applied to the case Avhere an engine and boiler were made subject to a chattel mortgage which was never registered. The chattels were annexed to the real estate upon which the mortgagor had previously given a mortgage. It was held that the lien of the chattel mortgage should be protected so far as it would not diminish the security which the real estate mortgage would have had if the annexation had not been made. The same subject was dealt with by Vice-Chancellor Pitney in Daly v. New York and Greenwood Lake Railroad Co. (1897), 55 N. J. Eq. (10 Dick.) 595; affirmed, 57 N. J. Eq. (12 Dick.) 347. There the controversy was between an unrecorded purchase-money mortgage and a previously executed railroad mortgage which purported to cover after-acquired property. The vice-chancellor says: “'The general rule seems to be that the holder of a mortgage who claims by its terms that it is a lien upon after-acquired property takes such property subject to liens upon it between the parties. This was distinctly decided by the supreme court of the United States in the case of United States v. New Orleans Railroad. Co. (New Orleans, &c., Railroad Co. v. Mellen), 12 Wall. 362,” from Judge Bradley’s opinion, in which he quotes extensively; and he further says: “It is familiar learning found in all the cases that a mortgage upon after-acquired property cannot rise higher than a contract to convey the title to that property when acquired, and a suit for its enforcement is in effect a suit for the specific performance of a contract.” Citing Holroyd v. Marshall, 10 H. L. C. 191; Pennoch v. Coe, 23 How. 117, and the leading case in New Jersey, Smithurst v. Edmunds, 14 N. J. Eq. (1 McCart.) 408.

The court of chancery had the same question up in General Electric Co. v. Transit Equipment Co. (1898), 57 N. J. Eq. (12 Dick.) 460. There the controversy was between a mortgage covering after-acquired property and chattels which had been delivered to the mortgagor under a conditional contract of sale. It was held upon the principles above stated and upon the authority of the cases that the right of the conditional vendor must prevail upon the principle laid down by Mr. Justice Bradley in the New Orleans Railroad Case, that a mortgage intended to cover after-acquired property can only attach itself to such property in the condition in which it comes into the mortgagor’s hands, and that if that property is already subject to mortgages or other liens the general mortgage does not displace them, though they may be junior to it in point of time; it only attaches to such interest as the mortgagor acquires.

While in this case the transfer of the property by deed from Oondit to the Carteret company may create simultaneous liens, it must yet be considered that however instantaneously the liens may arise there must be in our contemplation of the transaction a time when the title leaves the vendor and vests in the vendee; as it leaves the vendor the vendor’s lien attaches; as it reaches the vendee the lien of the mortgage attaches. It may be better described perhaps as a sequence of events rather than a sequence of time.

The doctrine is thoroughly established by these cases in New Jersey and by the decisions in the federal jurisdiction. Fosdick v. Schall, 99 U. S. 235; Irrigation Company v. Garland, 164 U. S. 16. The leading case in England is Mackreth v. Symmons (1808), 15 Ves. 329; 1 W. & T. L. C. 447. In that case Lord Elden held that where there was a contest between a vendor’s lien for unpaid purchase-money and the right of a person who had subsequently obtained from the purchasers a mere contract for a mortgage and nothing more that the vendor’s lien had priority.

It was argued on behalf of the complainant that inasmuch as the vendor’s lien was a lien only in contemplation of equity, and that the lien of the mortgage was a legal lien, ihe latter took precedence of the former upon well-known principles and maxims of equity. In my opinion, counsel takes a wrong view of the situation at this point. A provision in a mortgage that it shall cover after-acquired property is a provision which can be only contemplated in equity. I know of no way of effectuating such a provision according to the rules of the common law. Smithurst v. Edmunds, 14 N. J. Eq. (1 McCart.) 408; Lister v. Simpson; 38 N. J. Eq. (11 Stew.) 438. The conflict, therefore, from this point of view is not between a legal title and an equitable title, but between two equities, and the equity of the vendor being prior in the order of events, must take precedence over the lien of the mortgage. The defendant Jones further claims that in addition to the right which was acquired by Condit by operation of law, Condit must be held to have had a vendor’s lien for the reason that he specially reserved it. I do not think he did make any such reservation, but I shall deal with the question later on.

It was argued on behalf of the complainant that if the court found that the vendor had ever by any method acquired a vendor’s lien, he is not now entitled to the benefit of it because he has either waived his right or has bound himself by an estoppel not to assert it. It will be remembered that when the conveyance was made by Condit to the Carteret company he took from the company its bond for the purchase-money guaranteed by the defendant J ones, and also sixty-two of the bonds which were secured by the second mortgage upon the Copperas mine tract, a one-half interest in which passed at the same instant to the company; and it was insisted that this fact showed that Condit did not rely upon his vendor’s lien, but relied rather upon the personal responsibility of Jones as guarantor of the company’s bond, and further upon such lien as he might acquire upon the property which he had conveyed, by reason of his holding sixty-two of the bonds issued under- the second mortgage. There can be no doubt but that a vendor having a right to assert a vendor’s lien may waive or avoid the same by parol, or even orally, or by acts manifesting an intention to discharge the same.

In Brinckerhoff v. Van Sciven (1842), 4 N. J. Eq. (3 Gr. Ch.) 251, Chancellor Pennington says: “If the vendor take any other than the personal security of the vendee for his money, as the note-of a third person, a transfer of stock or a mortgage for a part-only of the consideration money, these or any other circumstances going to show that he does not look to the land as his security,, will be taken to be an implied waiver of the lien and will discharge the land from further liability.

“Although somewhat disputed, yet upon examining the cases it is now settled, and upon good authority, I think, that the taking-of a mere note or bond of the vendee will not avoid the lien. If the party looks to the vendee alone for his money, without taking-any other or further security, the land is liable.” This seems to be the earliest case in New Jersey on the subject. It is based upon Meckreth v. Symmons, 15 Ves. 328; Fish v. Howland, 1 Paige 20, and Bayley v. Greenleaf, 7 Wheat. 46.

In Dudley v. Dickson (1862), 14 N. J. Eq. (1 McCart.) 252, Chancellor Green held that the taking of a distinct security either in the shape of real or personal property from the vendee, or taking the responsibility of a third person, is an implied waiver of the lien, and that any act which indicated that it was not the-intention of the parties that the purchase-money should continue a lien upon the land conveyed, is a waiver of such lien, citing Gillman v. Brown, 1 Mas. 191; S. C. on appeal, 4 Wheat. 255; Nairn v. Prowse, 6 Ves. 752, and Capper v. Spottiswoode, Taml. 21. In that case the vendee gave his note to the vendor payable-at thirty days. This was subsequently renewed for ten days by the vendee by a note endorsed by Gray. Later, the grantee executed a declaration of trust whereby she stated that she held one-third of the said land or the proceeds of the sale thereof for the indemnification of Gray against the payment of the note which he-had endorsed, and that whenever the note should be paid to Dudley, the complainant, the obligation should cease. It was held that the complainant was not entitled to an equitable lien by way of vendor’s lien upon the whole of the premises conveyed, but that he must be restricted to the security afforded by the declaration of trust.

In Armstrong v. Ross (1869), 20 N. J. Eq. (5 C. E. Gr.) 121, the controversy was over a void mortgage which had been given to secure the purchase-money. The mortgage was given the position of a vendor’s lien because given for the purchase-money, the chancellor stating that the taking of a note or bond will not be held evidence of the waiver of the lien, and1 taking the mortgage which they have shows an intention to preserve the lien surely will not be held to be a waiver of it.

In Corlies v. Howland (1875), 26 N. J. Eq. (11 C. E. Gr.) 311, it was again declared by Vice-Chancellor Van Fleet, on the authority of Chancellor Nent, that the taking of a note, bill or bond, with distinct security, or taking distinct security exclusively by itself, either in the shape of real or personal property from tire vendee, or taking the responsibility of a third person, is evidence that the seller did not repose upon the lien, but upon independent security, and it discharges the lien. 4 Kent Com. 151. In that case Henry Howland purchased land from the complainant which, at his request, was conveyed by the complainant to Henry W. Howland. The vendor gave his promissory note for the whole purchase-money, and it was held that the vendor’s lien attached, notwithstanding the acceptance of the father’s note, for the reason that the son had notice on the delivery of the deed that the purchase-money was unsecured and unpaid.

In Acton v. Waddington (1889), 46 N. J. Eq. (1 Dick.) 16, Chancellor McGill cited Vice-Chancellor Van Fleet’s opinion in Corlies v. Howland, supra, on the point of waiver, although the question of waiver does not appear to have been litigated before him. The subject is discussed by Vice-Chancellor Reed in Harter v. Capital City Brewing Co., 64 N. J. Eq. (19 Dick.) 155, where the vendor had agreed to take stock of the defendant corporation in payment of the purchase-money. He says that it is not to be conceded that the law is settled that if the contract was such as to permit the corporation to pay in shares of stock the vendor’s lien for such portion of the consideration was thereby lost. He further says that the court of appeals of New York in Fisk v. Potter, 2 Keyes 34, held apparently without much consideration that if the price for 1'and is payable in some commodity other than money, the vendor’s lien is lost, that the rule, as settled by the great weight of authority, was that where the consideration for land sold is other land or personal property, with no mandatory price fixed for which the iand or personal property shall be delivered, there can be no lien, but that where the amount of the purchase price was fixed by the agreement between the parties the lien would lie. Citing Harris v. Hanie, 37 Ark. 348; Young v. Harris, 36 Ark. 168; Plowman v. Riddle, 14 Ala. 169; Deason v. Taylor, 53 Miss. 697; Beal v. Harrington, 116 Ill. 113; Mackreth v. Symmons, 1 White & T. Lead. Cas. 289, in each of which cases the vendor’s lien was allowed.

The law so clearly declared in New Jersey is in accord with the current of decisions in the other American jurisdictions. Hare & Wallace, in their American notes to the case of Mackreth v. Symmons, 1 White & T. Lead. Cas. 447, after indicating the conditions under which a vendor’s lien is created, says:

“On the other hand the lien will be considered as waived whenever any distinct and independent security is taken, whether by mortgage on other land or pledges of goods or responsibility of a third person, and also when a security is taken upon the land either for the whole or a part of the unpaid purchase money, unless there is an express agreement that the implied lien shall be retained. The taking of the vendee’s obligation does not affect the lien, but the taking of a mortgage on other property, or a bond or note of the vendee with surety, or a negotiable note drawn by the vendee and endorsed by a third person, or drawn by a third person and endorsed by the vendee, or a draft on a third person and accepted by the drawee, will repel the lien presumptively.”

See extended note to Royal Con. Mining Co. v. Royal Con. Mines, 157 Cal. 737; 110 Pac. Rep. 123, re-reported in 137 Am. St. Rep. 165, where all the cases are collected.

I think that the American rule may be considered as so established. The English rule, however, appears to be more liberal toward the vendor and to incline toward the idea that it is a question of the vendor’s intention to be gathered from all the circumstances.

Hnder the authority of these cases it must be quite clear that the vendor’s lien which Mr. Condit might have insisted upon was either waived by him or was so acted upon by him as to create an estoppel against its assertion at the present time. I do not think it at all probable that Mr. Condit ever bargained for a vendor’s lien upon the premises in question. His evidence on the subject is so uncertain, so indicative of loss of memory about the details of the transaction, and expressed so vaguely and in such uncertain tones, that any tribunal would hesitate to found any right upon it. It seems to me that his notion of a a vendor’s lien must have been an afterthought; that it is not likely that an ordinary business man would be sufficiently acquainted with the character, the incidents and the qualifications of a vendor’s lien to know how far it would be a protection to him. The subject is abstruse, complicated and open to many limitations and exceptions. Even well-informed lawyers might doubt their own judgment as to the effect of a vendor’s lien without the most careful examination of the authorities. How the ordinary business man, a class to which Mr. Condit evidently belongs, could expect to rely upon a vendor’s lien, a security of which he could know so little, and never suggest the making of a mortgage, which was a security with which he must have been perfectly familiar on account of his official position as county clerk of the county of Morris, is a situation that I cannot appreciate. Besides, I think it is fully established by the preponderance of the evidence that Mr. Condit stated to persons about to become purchasers of the bonds of the company which were secured by the mortgage of this future-acquired property that the Cobb estate had conveyed the title to the undivided half interest of the lands in question to the Carteret company free of all liens and encumbrances. The intention that if he made such statement it referred only to the outstanding fee-simple title and not to the encumbrances is to my mind a mere quibble, because he must have known, as a business man, that purchasers of bonds of the company would be expecting a first lien upon the property, and that they as investors would not be liable to place their money subject to the unpaid purchase-money to the extent of one-half the land in question. The fact that he remained silent as to his 'vendor’s lien and failed to assert the same when he was being interrogated by intending investors as to the property on which they were expecting a lien is sufficient in my judgment to estop him and his successor, the defendant Jones, from asserting any right as against the holders of the bonds secured by the consolidated mortgage. The evidence of Senator Kline, Mr. Davis and Mr. Hope on this subject is pointed and clear, and is to my mind a complete refutation of the position taken by Mr. Condit.

1, therefore, hold that while the situation is one in which Mr. Condit might at one time have insisted, upon a vendor’s lien, the evidence shows either that he waived his right or that he is es-topped from now asserting it, and that upon this point the master’s report should be confirmed. The other exceptions, relating principally to the standing of individual bondholders, were not argued, and I suppose were waived.

I will advise an order overruling all the exceptions and confirming the report of the master.


text:
    John H. Letts v. May E. Newbrand Letts.
    [Decided April 9th, 1909.]
    The rule requiring corroboration of the evidence of a party to a suit for divorce on the ground of adultery—Held, to be satisfied by the testimony in this suit.

      Mr. Warren B. Schench, for the petitioner.

      Mr. Freeman Woodbridge, for the defendant.
   Howell, Y. C.

(orally).

I think the question on the original petition is a question of fact wholly, and that there is no question of law in it which has not been pretty thoroughly settled by the decisions in our own state. Of course, it is well settled that a divorce cannot be granted upon the uncorroborated evidence of a party. It is likewise very well settled that a divorce will not be granted upon the confession or unsupported testimony of the co-respondent; but it is likewise settled, as I understand it, in the Delaney Case, 69 N. J. Eq. (3 Robb.) 602, in the opinion of Vice-Chancellor Emery, that the testimony of the co-respondent may be used for the purpose of corroborating the testimony of a party, and of course it must be vice versaj where a party gives the original testimony it may be supported by that of the co-respondent. Now, in this case, we have the testimony of the co-respondent which is exactly to the point. I do not know that I need go into the details of it very much. He says that on March 17th, 1908, he called at Mrs. Letts’ house; that that appointment was made the day before, as I. recall the testimony; that in pursuance of the appointment he went to her house about half-past eight or quarter to nine o’clock on the evening of March 17th, he knowing at that time that the husband was to be away, having been told so by her, so his statement is. He went to the front door, and at his knock or call she opened the door and let him in and took him into the kitchen. She likewise says that the door was locked, the key was in the door, and I suppose at that time that she meant the kitchen door was locked and that the key to the kitchen door was in the door inside. Then Connett details the circumstances under which he committed the act of adultery complained of, and tells how he heard the knocking on the door and the attempt of someone to get into the house and how she pointed the way to him to go to the cellar. He likewise tells how the' husband eventually came down into the cellar >and hauled him out by his coat collar and brought him upstairs and took him out of the front dóor and took him over to one of the neighbors. If that testimony is true there cannot be any doubt but what the crime of adultery was committed by this woman and that her husband would be entitled to a divorce against her. As I said before, in its uncorroborated condition, the decree cannot be made upon it. Now, the husband comes with his statement, and that is put in as a corroboration of the statement of the corespondent. He says that he came home about nine o’clock and he went in his usual manner to the kitchen door. He found a low light burning in the kitchen. The kitchen door was locked; the key was not in its accustomed place on the outside. He attempted to get in, but could not. He went to the front door and attempted to get in there; then again to the back door; then again to a position where he could watch the front door and the back door; and shortly after his wife let him in. He tells further about the finding of this man Connett in the cellar, and what he did with him. Now those two stories are so nearly alike that I must say that the story told by the husband is wholly corroborative of the story told by Connett, •although the husband is unable to say that he saw the act of adultery committed, or that he did very much more than merely suspect that it had been done that night. I have hesitated, and feel a hesitation, now about advising a decree for a divorce on the testimony of those two people; but there is a matter of corroboration in the case that I think is quite important—two matters: One is the letter which is addressed “Dear Danny.” Now, that was found by the husband several months before the alleged adultery; it was found by him on December 12th, 19071. Mrs. Letts denies writing the letter. There is, however, produced before the court a specimen of her handwriting in a copy book which she admits to be her handwriting, and I have in the course of the hearing compared the writing of the “Dear Danny” letter with the writing in the copy book, and to my mind there is no doubt whatever but that the letter and the writing in the copy book were from the same hand. That letter was found by tire husband in the bedroom in an envelope unaddressed, and apparently never having been delivered. He thinks it is addressed to a man Daniel Keegan, with whom he has on one or more occasions seen his wife in conversation. Now, that letter could never have been written by a woman whose mind was not to some extent alienated from her husband and probably corrupted by evil communications with the man to whom it was addressed. I do not think.that any virtuous, chaste woman writes that- kind of a letter without having behind it as a motive or an incentive either the guilt of adultery or the desire to commit adultery, or the willingness to do it in case the man addressed should propose it.

And another matter which is of great importance in this case to my mind is the finding of the ten or dozen postal cards which were put in evidence. These were found by the petitioner in his own house, and he says that he did not bring them there. Mrs. Letts says that they were brought there by her sister Mrs. Fox and left there. They are, to my mind, very indecent. I cannot imagine a pure-minded, chaste woman leaving those cards in her house where they were liable to get into the possession of the children, unless that woman was a woman of very easy virtue. Those seem to me to be all corroborative of the statement made by Con-nett, because I think they show a condition of mind which is favorable to the commission of the crime that has been charged.

Now, it is said by way of defence, that the circumstances from the wife’s standpoint seem to indicate that there was some sort of trap laid by the husband for the wife to fall into; that there was collusion between him and Conñett by which the wife was placed in a situation in which she might be charged with the matrimonial offence. That makes no impression upon my mind, and that for a reason which is very evident and which was adverted to by counsel for the petitioner in the argument. If it had been a case of collusion put up by a detective and the husband, or put up by any of the husband’s advisers, there certainly would have been present at the time of the discovery a sufficient number of .witnesses to have made the thing certain and sure. I do not think even the dullest detective would have omitted to provide witnesses—and it seems to me that the charge of collusion falls right at that point. The charge of collusion includes assent, acquiescence and willingness on the part of the husband that the wife should commit the offence for the furtherance of his own purposes.

Now to meet the main case of the husband the wife makes denials, but I do not think that they go to the full extent of meeting the proof adduced on the part of the petitioner. She not only makes these denials, but she files a cross-petition for a limited divorce on the ground of cruelty. I am unable to see the situation in the same light as does the counsel for the defendant. There are no acts of cruelty charged, as far as I remember the evidence, within three or four years of the time when the wife finally left the husband’s house on March 30th, 1908. She did not testify that the acts of cruelty continued right down to the time of their separation, and that she finally separated from him on account of the continuance and repeated and horrible acts of cruelty. She appeal’s to me to have exaggerated the situation. 1 think it is probably true that he called her names and that he may have beaten her; I think he may have done things that a more considerate man would not have done, but they seem to me to be isolated instances not to be so connected as to be called a continuous gross abuse or cruelty; and I therefore think that not only is the cruelty not a bar to the petitioner’s case, but it is not a ground for a limited divorce.

Now, I have not gone over this testimony as fully as counsel have; I am giving only my notion of the result of it. If an appeal should be taken I might consider it advisable to go over the testimony carefully, and I might have to have the testimony written out.