author: Pitney, Y. C.

text:
    Abraham J. Goldstein and Davis Fineberg v. Jeremiah Curtis and Kate, his wife.
    [Submitted April 23d, 1902.
    Decided May 24th, 1902.
    Piled October 11th, 1902.]
    The owner of land entered into a written contract to convey it for a sum of money, and was unable to perform his contract by reason of his wife’s refusal to join in the conveyance, and thereupon was sued at law for damages for breach of it. The instrument provided for $350 of liquidated damages in case of failure by either party, and $200 had been paid on account of the purchase-money. Negotiations pending suit for a settlement resulted in a new contract executed by the husband and the wife, on the one side, and duly acknowledged by the latter in the same manner that a deed of conveyance is required by statute to be acknowledged, and the vendee on the other, to convey at a future day the same land and an additional lot, for a consideration named. On the day named the wife refused to acknowledge that she executed the deed freely, without any fear, threats or compulsion from her husband, and the deed was not delivered. Thereupon suit for specific performance was brought against the husband and wife, to which the wife set up two defences—first, that she had received no part of the money paid at the time of the signing of the contract, and hence that it was without consideration as to her; and, second, that a married woman cannot be compelled to specifically perform a contract, even when the execution of that contract has been duly acknowledged by her.—Held, (1) that the injury which the wife would presumably suffer by the damages recoverable against her husband for the breach of the first contract, and the presumption that she stipulated with her husband for a part of the consideration to be paid upon the delivery of the deed, and her ability to share in those proceeds, furnished a sufficient consideration; (2) that the acknowledgment of a contract for sale by a married woman is authorized by the act of 1898 (P. L. of 1898 p. 670), and that by force of that act a contract so acknowledged by a wife is binding upon her in equity; (3) that the decree for specific performance will be self-executing and pass the title free and clear of the dower of the wife, without the acknowledgment of any conveyance by her; (4) at the date fixed for executing the second contract the wife stated to the officer who proposed to take her acknowledgment that she had not executed the deed under fear, threats or compulsion of her husband, but that she did not do it freely, whereupon the officer declined to sign the ordinary certificate.—• Bold, that the officer would be justified in certifying that she had acknowledged it .freely, without any fear, threats or compulsion from her husband.
    On bill, answer and proofs in open court.
    This is a suit by vendees against vendors for tbe specific performance of a contract, under seal, to convey land, and for an accounting of the rents of the same from its date according to the terms thereof.
    The contract was entered into on the 10th of July, 1901, between the two complainants, Goldstein and Eineberg, as vendees, and the two defendants, Curtis and his wife, as vendors; and it covers three lots of land, with the improvements thereon, situate on the northerly side of Essex street, in Jersey City, and known as Nos. 144, 146 and 148 Essex street, together with the right, title and interest of the defendants in certain lands and buildings adjoining No. 148 on the west. The consideration named is $8,026, of which $200 was paid down and $7,826 was to be paid on the 1st day of August next ensuing. There was a provision that the vendees should be entitled to receive the rents of the property from the date, of the agreement, and that the vendors would account for the rents, at the delivery of the deed, up to that time, and also turn over the policies of insurance covering the buildings.
    The instrument is under seal, and was acknowledged by all the parties before Mr. Eisk, as master in chancery, who certified that the wife, being privately examined, separate and apart from her husband, thereupon acknowledged that she signed, sealed and delivered the same as her voluntary act and deed, freely, without any fear, threats or compulsion of her husband.
    The complainants were ready and willing and tendered themselves ready to perform the contract on their part, to wit, the payment of $7,826 on the day named, and the defendant Curtis, who holds the fee, proffered himself willing to execute the conveyance, but his wife declined to join therein in such manner as to bar her dower. She stated to Mr. Fisk, who acted as counsel for the defendants, that while she had no objection to acknowledging that she executed the deed without any fear, threats or compulsion of her husband—in fact, repudiated any fear or compulsion on his part—she was not willing to acknowledge that she executed it freely. Hence Mr. Fisk declined to certify the acknowledgment, and the sale fell through.
    The facts leading up to the execution of the contract, as shown by the evidence, are as follows: On the previous 22d of October the defendant Curtis alone had entered into a contract with the complainants to convey to them, for the sum of $6,000, Nos. 144 and 146 Essex street, by deed to be delivered on the 15th of January next ensuing.
    The covenant in that contract was “to well and sufficiently convey to the said- party of the second part, their heirs and assigns, by deed of full covenant warranty, free from all encumbrance.” It also contained a provision that in case of the failure to fulfil the same, the party failing should pay the sum of $350 as liquidated damages.
    On the day named for the performance of that contract the complainants were ready to pay the purchase-price, and Mr. Curtis was ready to convey, but declared that he could not—and he did not, in fact—procure his wife to join in the conveyance. Whereupon the complainants declined to accept the deed; and thereafter, to wit, on the 4th of April, 1901, commenced an action against Mr. Curtis to recover the liquidated damages mentioned in that contract.
    Mr. Curtis employed Mr. Fisk to defend that action. No plea, however, was put in, but further time to plead was obtained from the attorney of the complainants, and negotiations for a settlement were entered into. In those negotiations the wife of Curtis took part, and they resulted in an offer, on the part of Curtis, of which his. wife was cognizant, to settle that suit by conveying all three of the lots, Nos. 144, 146 and 148, with an uncertain interest in some premises adjoining No. 148, for the sum of $8,000. Those negotiations resulted in the execution of the contract upon which this suit is based; and coincident with its execution the suit based on the prior contract was discontinued.
    In preparation for the fulfilment of their contract to pay the purchase-money the complainants incurred the expense of examining the title to the property and negotiating and paying a premium for a loan sufficient for that purpose from a building loan association.
    The covenant sought to be enforced is in these words:
    “The said parties of the first part [Curtis and his wife], in consideration of the sum of $200 to them duly paid, hereby agree to sell unto the said parties of the second part [the complainants]
    then follows a description of the premises; then comes a covenant, on the part of complainants, the vendees, to pay the said sum, and then this covenant:
    “And the said parties of the first part [Curtis and-wife], on receiving such payment at the time and in the manner above mentioned, shall at their own proper cost and expense, execute, acknowledge and deliver to the said parties of the second part, or to their assigns, a proper deed for the conveying and assuring to them the fee-simple of the said premises, free from all encumbrance, which deed shall contain a general warranty and the usual full covenants.”

      Mr. James B. Bowen, for the complainants.

      Mr. Willard G. Fish, for the defendant Jeremiah Curtis.

      Mr. William B. Barrichlo, for the defendant Kate Curtis.
   Pitney, Y. C.

Four defences are set up:

First, that the wife was not aware that the contract covered both pieces of property, but that she supposed that it covered only the first piece, the subject of the first contract of sale, and for that reason she ought not to be compelled to specifically perform it.

I think this defence entirely fails. Her husband was sued on the previous contract, which provided for liquidated damages, and was liable to have a judgment entered against him. He obtained the aid of competent and faithful counsel, and through that counsel sought a settlement of that suit. It appears that the wife visited that counsel with her husband; that she took part in the preliminary negotiations; that the contract here sought to be enforced was prepared by that counsel, and that the contents were fully made known to her by him, and that she signed and acknowledged it, according to-the statute, before that counsel as master. It is quite impossible, under these circumstances, to believe that she was unaware that the additional lot was included in the present contract.

The next defence set up is want of any consideration paid to her. The consideration for entering into the contract was the $200 paid on the previous contract and the discontinuance of the suit pending on the previous contract, which called for liquidated damages to the extent of $350, besides the costs.

No consideration was paid directly to the wife, but she had a perfect right to stipulate with the husband, if she chose so to do, that a certain part of the final consideration-money of several thousand dollars to be received by him should be given to her; and the inference from all the circumstances would be that she had stipulated for some such consideration if she required it. Moreover, as a wife, she was interested in the welfare-of her husband. Presumably she would suffer by his being condemned in damages and costs for the non-performance of the first contract. Further, no pecuniary consideration is necessary 'in order to support such a contract. This defence fails.

The third defence is that the consideration agreed to be paid is inadequate. The property subject to the contract is what is knowp as tenement-house property, and some testimony was given as to its rental value. But no satisfactory evidence was given as to the cost of repairs, maintenance, taxes and the like. The defendants, in making the contract, acted advisedly, and not hastily. No advantage was taken of them in any respect. The offer to settle the previous suit by this new contract was made by them, and was accepted by the complainants reluctantly. If, as alleged, the first contract was unconscionable, they had only to pay the $350 to escape the effect of their folly. Thisdefence fails.

, The fourth defence, and the one mainly relied upon, and which raises the only serious question in the case, is whether a married woman can be compelled by the court of chancery to specifically perform a contract, entered into with her husband and duly acknowledged by her as a married woman, to-convey lands in which she has a dower interest.

The question, so far as I know, has never been squarely presented and decided in New Jersey. The subject was dealt with elaborately by Vice-Chancellor Stevens, in the case of Corby v. Drew, 10 Dick. Ch. Rep. 387. The law, as left by him, may be stated in this wise: The three statutes then in force relating to the rights and obligations of married women as to their interest in land, taken together, provided that a married woman had the right to contract concerning her property, including land, the same as if she were feme sole, subject, however, to-the statutory exception that she could not convey land without her husband joining with her therein, except in certain cases-stated; and further, that she could not convey land without .acknowledging the conveyance before a proper officer in the-mode prescribed in the statute.

The result was that Vice-Chancellor Stevens held that where a married woman had entered into such a contract with her husband, which contract, however, was not acknowledged by her before a proper officer separate and apart from her husband,, she could not be compelled to specifically perform that contract.

The precise question here presented was not before Vice-Chancellor Stevens, because, as I have said, the married woman in-that case had not acknowledged the contract separate and apart from her husband before a proper acknowledging officer.

Since the decision in Corby v. Drew the “Act concerning conveyances” has been revised, as found in P. L. of 1898 p. 670.

Section 21 of that act (at p. 677) enumerates the different ■classes of contracts relating to land which may be acknowledged •or proven and recorded.

Section 39 (at p. 685) relates to the rights of a feme covert in land, and is in the following language:

“No estate or interest of a feme covert in any lands, tenements or hereditaments, lying and being in this state, shall hereafter pass by her •deed or conveyance, without a previous acknowledgment made by her on .a private examination, apart from her husband, before one of the officers mentioned in the twenty-second, twenty-third and twenty-fourth sections of this act, as the case may be, that she signed, sealed and delivered the same as her voluntary act and deed, freely, without any fear, threats, or •compulsion of her husband, and a certificate thereof written on, or under, ■or annexed to the said deed or conveyance, and signed by the officer before whom it was made; and further, every deed or conveyance, heretofore or hereafter so executed and acknowledged, by a feme covert, ■ and certified as aforesaid, shall release and bar her right of dower, and every deed or instrument of the nature or description set forth in the twenty-first section of this act, heretofore or hereafter executed hy her and so aelmowl■edged and certified as aforesaid, shall he good and effectual to convey or ■affect the lands, tenements or hereditaments, or other property, or her interest therein, thereby intended to be conveyed or affected; provided, that this clause shall not be construed to enable any feme covert under the age of twenty-one years to convey or affect her lands, tenements or hereditaments, or other property, or any right of dower, interest or estate ■therein.” /

Tbe language of this statute, it is seen, is broader than that previously regulating that subject, which is section 9 of the “Act ■concerning conveyances.” Gen. Stat. 1895 p. 854. The additional words are these:

“And every deed or instrument of the nature or description set forth in the twenty-first section of this act, heretofore or hereafter executed by her and so acknowledged and certified as aforesaid, shall be good and effectual to convey or affect the lands, tenements or hereditaments or other property, or her interest therein, thereby intended to be conveyed or affected.”

Among the instruments mentioned in the twenty-first section, ■so referred to, is “agreements for sale.”

If any doubt existed under the law as it stood at the time Corby v. Drew was decided as to the effect of a contract to convey lands entered into by a married woman with her husband' and duly acknowledged by her, that doubt seems to me to be clearly removed by the thirty-ninth section of the act of 1898,. which, as we have seen, expressly provides that agreements for sale duly acknowledged by the wife

“shall be good and effectual to convey or affect the lands, tenements or hereditaments, or other property, or her interest therein, thereby intended to be conveyed or affected.”

Now, a familiar way to “afEect” the interest of a person in land is to contract to convey it, and the only mode in which such a contract can be made “good and effectual” is to compel its specific performance by a decree of this court.

But it is argued that this court is asked to compel a married woman to execute and acknowledge a deed, and declare before' the acknowledging officer that she signed, sealed and delivered the 'same as her voluntary act and deed, freely, without any fear, threats or compulsion of her husband. There is nothing, in this objection. As pointed out in Fee v. Sharkey, 14. Dick. Ch. Rep. 284 (at p. 292); S. C. on appeal, 15 Dick. Ch. Rep.. 446, the decree of this court executes itself.

By her contract, under the statute of 1898, the defendant Mrs. Curtis came under an obligation, enforceable in a court of equity,, to join her husband in a conveyance of this land. Her obligation does not differ in character, though it does in origin, from; that of the married women defendants in the ease of Fee v. Sharkey; and if she executes the deed without acknowledging' it, I am of the opinion that the title will be perfectly good, because made in obedience to a decree of this court.

And here I feel constrained to remark that I think much doubt may be suggested as to the accuracy of the interpretation of the statutory requisition applicable to the execution of conveyances by married women which Mr. Eisk seems to have adopted in refusing to certify Mrs. Curtis’ acknowledgment to-the deed prepared by him to be given under the contract now sought to be enforced, because she would not acknowledge that she executed it “freely ” though disavowing any fear, compulsion or other influence on the part of her husband. My understanding of the force of the word “freely” in that connection is that it relates entirely -to the relation between the husband and wife, and indicates a condition of freedom, on her part, from the influence of her husband, and not of freedom from the obligation of a contract or other duty. If I am right in this, Mr. Fisk would have been quite justified in certifying to her acknowledgment.

I also call attention to the former condition of the law in England on this subject, by reference to a collection of the authorities in a learned note to an article on the subject of “Specific Performance of Contracts” in 1^1 Am. Law Beg. {N. S.) 259 {May, 1902).

The simple common sense of the thing is that the wife has once acknowledged, in the manner required by law, an instrument in writing releasing her dower in equity in the land involved in this suit, and there is no necessity, in order to validate the title, for her making that acknowledgment a second time.

The contract under consideration is fair in all its parts. It bound both parties to it, and I see no reason why it should not be enforced.

I will advise a decree for complainants, with costs to be paid by the defendants and deducted from the purchase-price.

The decree may contain a provision that the conveyance shall be delivered and the purchase-money paid and other matters liable to lead to dispute be adjusted by the parties in the presence and under the supervision of one of the masters of this court, if the parties cannot carry it out privately.


source: Caselaw Access Project

author: Pitney, V. C.

license: Public Domain

text:
    Frederick Menzenhauer v. Oscar Schmidt.
    [Submitted May 20th, 1902.
    Decided May 24th, 1902.
    Filed October 11th, 1902.]
    A retired partner, suing to set aside an amicable settlement of the partnership affairs on the ground of fraud in the continuing partner whereby he (the retired partner) did not receive his full share in the partnership assets, and for a dissolution and accounting, is not required, as a condition precedent to relief, to offer in his bill to pay back to the continuing partner the amount which he received in the amicable settlement.
    On demurrer.
    The facts admitted by the demurrer are that, in April, 1899, the complainant and defendant entered into a partnership for the manufacture and sale of certain musical-instruments known as guitar-zithers. The manufacture of those instruments was carried on in Jersey City, under the supervision of the complainant, and the sale of them was conducted by the defendant in different parts of the United States and Europe—principally in Europe; that to assist in the sale it was important to use a sort of patent music sheet, which promoted a mechanical operation of the instruments, and the furnishing of these music sheets involved the payment of large fees, to the patentee; that during the first year of the business, and while the defendant was conducting it in Europe, large sales were made and statements thereof sent to complainant up to the month of January, 1900. After that date the defendant wrote to the complainant that the business was very poor and had been ruined by strikes, and that the cost of the license fee paid to the patentees of the music sheets had, in connection with the strikes, substantially ruined it; that, in May, 1900, complainant was about to leave for Europe to investigate the condition of affairs, when the defendant came from Europe to New Jersey to see complainant, and there informed him that the business was no longer profitable, and that there was not enough in it to support both partners, and that one or the other must withdraw, and then furnished a statement of the business, in which was stated the amount of money in banks in Europe and the amount of indebtedness there standing against the firm, showing the debits to be equal to the credits, and stating to the complainant that there were no assets in Europe, and that the only valuable asset was the factory property in Jersey City, which was estimated to be worth $60,000. Complainant relied upon the statements of the defendant, and then and there agreed to dissolve the partnership and sell his one-half of the business to the defendant for $30,000, which he did, and received the said sum of $30,000. Afterwards he learned that the statements of the defendant as to the condition of the business in Europe, and the amount paid and necessary to be paid as license fees to the patentees of the music sheets were grossly inaccurate and false, and that there was a large surplus of assets in Europe, and that the license fees had been commuted and reduced to a comparatively small sum, and that the business, instead of being, as alleged by the defendant, unprofitable, was in a highly prosperous condition; that the complainant spent a year or two in investigating the affairs of the partnership, and as soon as he ascertained the true facts called on the defendant to come to an accounting with him. The books, papers and all the assets of the firm are in the possession and under the control of the defendant.
    The prayer is—first, that the assignment of complainant’s interest in the zither business to the defendant be declared null and void; second, that the partnership may be decreed to be dissolved and a receiver appointed of the property, rights and good will of the partnership, and third, that a complete account may be taken, under the order of the court, between the complainant and defendant of the partnership accounts, and the defendant decreed to pay complainant the amount which may be found due him.

      The demurrer is based solely on the ground that the complainant, in his bill, does not offer to pay back to the defendant ■the $30,000 which he has received.

      Mr. Walter L. McDermott, for the demurrant.

      Mr. James A. Gordon, contra (not called on).
   Pitney, V. C.

I think the demurrer is based upon a wrong conception of the situation. The transaction sought to be annulled was not, strictly speaking, a sale of a chattel by the complainant to the defendant, for which the complainant obtained a sum of money, and which chattel he seeks to recover back without returning the money which he received. The transaction was, in substance and effect, a dissolution of a partnership, in which the partnership assets and good will were turned over to one partner and the other was paid a consideration for his interest in the assets and business. It was a payment by the instaying partner to the outgoing partner of a sum of money as the value of his interest in the partnership. It ivas, in effect, an amicable dissolution of the partnership.

Now, the scope of the prayer of the bill is not that the partnership relation should be reinstated, but that the dissolution should be judically declared, and an account taken of the partnership affairs, and the interest of the complainant therein ascertained, according to the practice of this court, and the complainant paid that amount. The allegation, which, for present purposes, must be taken to be true, is that the amount of that interest is, and, when judicially aseerained, will prove to be, much greater than the sum of $30,000 received by the complainant. In tailing the account the complainant, of course, will be charged with so much money received by him from the defendant, and the.defendant will be credited with that amount, unless he paid it out of partnership funds. >

This view of the case shows its marked distinction from a case in which a fraud-doer conveys to the defrauded one an article of merchandise of little value and, by fraud and chicanery, induces him to pay for it a sum greater than its value. In such a case the defrauded party cannot recover back his money from-the fraud-doer without, at the same time, handing him back the article of merchandise which he received. He cannot receive the money and keep the object for which it was originally paid. But the principle applicable to such a case does not apply here.

If we seek for a parallel to the present case in the sale of a chattel, we will more nearly find it in a case where the vendor of the chattel, by fraud, is induced to part with it for a much less sum than its value, and seeks to recover, not the chattel, but the remainder of its value over and above the amount he has already received.

A short statement of the case is that the complainant is seeking the aid of this court to ascertain the real value of his interest in the partnership at the time of the dissolution, and to compel the defendant to pay him the excess over and above what he has already received.

I will advise that the demurrer be overruled, upon the usual terms.


author: Pitney, Y. 0.

text:
    Andrew J. Van Blarcom, trustee in bankruptcy, &c., v. Steward H. Hopkins.
    [Submitted April 30th, 1902.
    Decided June 7th, 1902.
    Filed October 11th, 1902.]
    Where a town lot is sold at a judicial sale under an advertisement which describes'it as being one hundred feet front and two hundred .and fifty-five feet deep, while it is only ninety-three feet front and two hundred and fifty-five feet deep by including the sidewalk, but the misrepresentation was innocent and the purchaser was well acquainted with the lot, though he did not know that it was not as large as represented in the advertisement, and he was not buying it for a purpose requiring such an exact area, and there is nothing in the ease to lead to the conclusion that he would not have bought if he had known the exact dimensions, he will be required to specifically perform his contract, with a deduction in price for the deficiency in quantity.
    On bill for specific performance. On final hearing on bill, .answer and proofs in open court.

      Mr. Charles D. Thompson, for the complainant.

      Mr. Charles M. Woodruf, for the defendant.
   Pitney, Y. 0.

This is a suit to compel the specific performance of a contract, brought by the complainant, Yan Blareom, as vendor, against the defendant, Hopkins, as vendee. The making of the contract is admitted. The specific and only defence set up is that the quantity of land contained in the proposed conveyance is not as great as that provided for in the contract.

The circumstances of the case are somewhat peculiar, and are as follows:

The premises in question comprise the house and lot which constituted the residence of the late Thomas Kays, situate on Main street, in the town of Newton, and a few hundred feet from its business centre. They were owned and occupied by Mr. Kays for many years, and came under the dominion of the complainant by virtue of voluntary proceedings in bankruptcy, in which he was appointed trustee. An order for their sale was made, and they were duly advertised for sale at auction, and purchased thereat by the defendant. He is, and has been for many years, a resident of Newton, living on the same street, but a little farther away from the town than the premises in question, and passed them habitually two or three times a- day. He was looking for a lot affording more ground and room' for building, and when he saw the premises advertised called on Mr. Kays, looked through the house and over the grounds, and learned from Mr. Kays that he contemplated bidding upon the premises himself; that he would bid openly, and that when he stopped bidding would so announce to the 'public, so that all persons would know whether they were bidding against him or not.

The advertisement was prepared by Mr. Kays and handed to' his trustee. The description of the premises contained therein is as follows:

• “The residence of Thomas Kays, situate on Mjain street, Newton, New Jersey, is one of the most desirable locations in Newton. The lot is a large one. It is one hundred feet front and two hundred and fifty-five feet deep. The house is three stories; all in good repair.”

Then followed a. description of the different stories, heating apparatus and other matters.

Mr. Kays did bid at the sale openly, and his last bid was followed by others, and the property was knocked off to the defendant for the sum of $7,020, which is a fair price for the property,. and he signed the usual undertaking to accept a conveyance and pay the purchase-money after the confirmation.

After the sale, and before it was confirmed, Mr. Kays died.

The property had been sold expressly subject to the inchoate right of dower of Mr. Kays’ wife, as she was at the time of' the sale, and by the death of Mr. Kays that right became vested in possession before the conveyance could be delivered.

The deed was prepared and shown to the counsel of the defendant, who examined it and found that the front of the lot as described in the deed was one chain and thirty-six links, or' a trifle less than ninety feet. That description was taken from the conveyance under which Mr. Kays had held and occupied the premises for many years. Mr. Hopkins' at oiice declined to take the title on account of the deficiency of eleven feet in the-frontage of the lot. It was also found, upon measurement, that the distance from the front fence to the rear fence was only about two hundred and forty-seven feet, instead of two hundred' and fifty-five feet; but measuring to the edge of the sidewalk' it was fully two hundred and fifty-five feet, and still more to1 the centre of the street. In looking up the matter the trustee-found that a small piece of land adjoining the original lot on the west, and included within its present enclosure, had been- ■ omitted in his deed. This small piece was part of the lot adjoining Mr. Kays’ original lot on the west, . which later lot he had purchased after the purchase of the original lot and had reconveyed, reserving the small piece in question. The complainant immediately proposed to include that small piece in the conveyance, but the defendant declined to accept it..

With that small piece included the front is ninety-two and eight-tenths feet by actual measurement, and a measurement on a line drawn immediately through the rear part of the dwelling-house, sixty feet from the street, makes the width of the lot at that point just ninety feet, and at the rear of the lot it is about ninety-three feet, besides a small parallelogram, seven by forty-two feet, which is annexed on one side in the rear, which makes the whole width there a trifle over one hundred feet.

The lot is enclosed in fence in the rear, sides and front, ex- ■ cept that part of the east side between the dwelling and the street. The dwelling touches, in part, the easterly side of the lot, and from the point of such contact the easterly line runs directly past the house and strikes the street about twenty feet in front of the house, and the street end of the line between Kays’ lot and the next lot on the east of it'is clearly marked by a post, and by a difference which clearly appears in the eharr .acter of the front fence of the Kajrs lot and that of the lot on the east. Besides, while there is no fence for a distance of a few feet at that point, the location of the division line between the lots is marked by a small terrace. On the west side the boundary, for about one hundred feet from the street, is the building on the adjoining property.

The result is that a person looking at the premises, either passing along in front or walking over them, would have no ■difficulty whatever in seeing precisely where the lines were, so that the thing sold was visible on the ground, and no intending purchaser could make a mistake in what he was buying.

Evidence was given, on the part of the defendant, to the effect that he had in mind before making this purchase a lot of about -one hundred feet front and of proportionate depth. The house lot which he occupied was seventy 'feet front and one hundred .and sixty feet deep, and was not large enough for his wants. He gave evidence tending to show that he had consulted a builder' or architect as to what disposition could be made of the house already on the premises; whether he should use that house and move it into a central position on the lot, or .whether he should move it oif and build a new house. But there is no evidence-tending to show that he had in mind any improvements which would require a lot just one hundred feet in width, or that the lot he purchased was not large enough to satisfy the design for the residence which he had in his mind. In other words, nothing in the evidence tends to show that there was a particular charm in just the .width of one hundred feet, or that he would not have bid upon and become a purchaser of the lot if its actual dimensions had been made known to him.

It was further shown by Mr. Van Blarcom that he knew nothing about the dimensions of the lot; had never had the muniments of title in his possession; that the description for the advertisement was prepared for him by Mr. Kays, and that he supposed it was quite accurate. It was further admitted that Mr. Kays was entirely innocent in regard to the description that he prepared; that he must have -supposed that the lot was one hundred feet wide, although if he had made a calculation from the calls-—one chain and thirty-six links—in the deed he would have discovered that it was only about ninety feet.

The defendant relied entirely upon the statement in the advertisement, and also, as he swears, upon Mr. Kays’ personal statement to him that the lot was one hundred feet wide, and' made no examination either of the title or of the description of the lot in Mr. Kays’ muniments of title; and, as he swears, never suspected that there was any deficiency until he, with his 'counsel, read the description.

It was shown that the bare land was worth about $50 a front foot, with the result that the lot was worth about $500 less than it would have been if it had contained the full width of one hundred feet.

Mrs. Kays is about sixty-seven years old, and her right of dower is a serious burden on the premises, and if the trustee must again expose them for sale he will be at a disadvantage, because what was at the previous sale a mere inchoate and uncertain right, depending upon Mrs. ICays surviving her husband, has since become a fixed and present right.

Under these circumstances the questions are, Is the complainant entitled to specific performance at all; and, if so, shall it be upon terms of making compensation, or without making compensation? The vendor contends the latter. He argues that the defendant acquires the very thing which he saw and expected to acquire. It was an object which he could take in, as it were, with his eye, with which he was perfectly familiar, and that he could not have been misled by the representation set out in the advertisement.

On the other hand, the defendant argues, with great force, that he is not getting the thing that was promised to him, which was a lot one hundred feet Avide and two hundred and fifty-five feet deep, and thqj;, unless he has precisely that thing, he cannot be compelled to perform the contract upon any terms; that he could not distinguish between ninety-three feet and one hundred feet by the eye, and was entitled to rely upon the statement in the advertisement.

I am inclined to the opinion that neither of these positions is tenable; that the true solution of the problem is that the' defendant should be compelled to specifically perform, with compensation made for the deficiency in quantity.

Specific performance with compensation for deficiency is a common remedy, and, I think, a valuable one. It is applied freely in cases where the vendee asks specific performance against the vendor with a deduction in the contract-price on account of the deficiency. On the other hand, it is given rarely in cases like the present, where the vendor is seeking to enforce the contract.

It is sometimes stated by judges that there is a general rule that specific performance Avith compensation will be decreed in favor of vendee and against vendor, but will not be decreed in favor of the vendor against the vendee. I do not find this position sustained by actual decisions. There is, in my judgment, but one rule of universal application in such cases, and that is, to inquire what, under the circumstances of the particular case, is equitable and just as between the parties. In solving the question' resort is had, as in other cases in equity, to the decisions of other judges in similar eases and the reasons they have given therefor.

Lord Selborne is reported to have said that “specific performance is a conscious attempt, on the part of the court, to do ■complete justice to both parties with respect to all judicial relations growing out of the contract between them.”

Professor Pomeroy deals with this branch of the general subject in section 434 et seg. of his treatise on “Specific Performance.” In section 434 he speaks of three alternatives presented in a case of a deficiency in quantity, quality or value—first, to refuse the remedy entirely; second, to enforce the contract without any regard to the partial failure, compelling the purchaser to take what there is to give and to pay the full price as agreed, .or third, to decree a conveyance of the vendor’s actual interest, and allow to the vendee a pecuniary compensation or abatement from the price, proportioned to the amount and value of the defect in title or deficiency in the subject-matter. The third alternative, he says,

■ “is based upon equitable principles;' it endeavors to preserve the rights of both the parties and is therefore constantly resorted to and applied by courts of equity in aid of a vendee, and sometimes, although under more and greater restrictions, in aid of the vendor. There are circumstances, however, under which even a vendee is not allowed to avail himself of its doctrine.”

I-n section 450 he states the doctrine applicable to the present case, to wit, a deficiency in quantity, as follows:

“Two rules are equally well settled by courts of equity. If the vend- or’s failure to comply with the terms oí the contract, either with respect to a defective title or a deficiency in the subject-matter, is not material, but is rather formal in its nature, so that the purchaser will get substantially what he contracted for, then the vendor can obtain a decree for a specific performance, with compensation, even against an unwilling vendee. If, however, the inability of the vendor to fulfill on his part affects a material part of the contract, if the defect in his title or the deficiency in the subject-matter is substantial, and not merely a failure to literally comply with the exact terms of the agreement—in short, if the vendee will not get substantially what he contracted for, then the vendor will not be permitted to enforce such a partial performance, even with compensation upon an unwilling purchaser.”

And he supports the doctrine by copious citations of au- • thorities.

And again, at section 454, he says:

“If the land is sold, not by the number of acres, but by metes and bounds, or by means of any other similar description which identifies the particular tract, and the vendee receives a conveyance of that very tract, then, in the absence of intentional misrepresentation by the vendor, a deficiency in the quantity which the vendee had supposed the land to contain, even though that quantity was named in the agreement, will not affect the vendor’s right to a specific performance, or entitle the purchaser to compensation, unless the deficiency should be so great as to virtually defeat the purpose for which the contract was entered into by the vendee. This, of course, assumes that the purchaser was not misled, and that he had opportunities for becoming acquainted with the subject-matter, and then the principle caveat emptor applies to a purchase of land as well as of chattels. But if the seller has misstated the quantity or number of acres, the vendee is plainly entitled to compensation for the ■deficiency.”

There is a large class of cases which is clearly distinguishable from the present, namely, where the land agreed to be conveyed •consists of several parcels and the title fails to some one of those parcels, so that the purchaser does not acquire the very thing which he purchased. An example of this class is Arnold v. Arnold, L. R. 14 Ch. Div. 270 (1880). There a gentleman bargained to purchase a tract of land containing forty-one acres, adjoining his own land, one parcel of which, containing seven .acres, comprised the whole front of the lot upon the street, and to this part the complainant was not able to make a complete title. Sir George Jessel, master of the rolls, decreed specific performance, but the court of appeal, consisting of Lord-Justiceis James, Baggallay and Bramwell, reversed, and refused a specific performance, holding that the strip of land to which title failed was, upon the evidence, an important part of the purchase, without which the purchaser would not have contracted to buy.

There are other cases, however, found in the English reports where such contracts have been enforced against the defendant, with compensation. Several are collected by Lord-Justice Ffy in his book. Fry Spec. Perf. (3d ed.) § 119k-.

It is, of course, much more difficult in cases of that character to show that the purchaser would really acquire what he bargained for than in cases of a mere deficiency in quantity.

But in cases like the present, where the purchaser acquires the precise piece of land for which he contracted, and which he saw and inspected, and the only objection is that it was less in quantity than it was represented to be, the courts have, naturally enough, found little difficulty in giving the vendor his remedy against the vendee.

A recent example in England is found in the case of In re Contract between Fawcett and Holmes, L. R. 42 Ch. Div. 150 (1889). There the sale was by the executor of a Mr. Fawcett (a builder) of the testator’s residence, and'was described as follows:

“All that messuage or dwelling-house situate in Teall street, Wakefield, with the builder’s yard, stables, and premises as lately in the occupation of George Fawcett, and containing 1372 square yards.”

The contract contained a provision, quite common of late years in England, and which was present in Arnold v. Arnold, supra, that in case of any error or misstatement or omission in the plans or particulars, the same shall not annul the sale, but, if pointed out before the completion of the purchase, and not otherwise, 'compensation shall be allowed by the vendor or purchaser, as the case may require. It appeared that the original purchase by Mr. Fawcett did contain one thousand three hundred and seventy-two square yards, but he had, long before his death, conveyed out three hundred and thirty-nine square yards, reducing his own plot to one thousand and thirty-three square yards, which was the amount comprised within the walls of the enclosure, which the purchasers saw upon inspection.

In delivering judgment in favor of the complainant, Lord Esher (at p. 156, bottom) says: “I think that, in Flight v. Booth, 1 Bing. N. C. 370, Tindal, C. J., lays down a rule which is easy to be understood, though often difficult of application: Tn this state of discrepancy between the decided cases, we think it is, at all events, a safe rule to adopt that where the misdescription, although not proceeding from fraud, is, in a material and substantial point, so far affecting the subject-matter of the contract that it may reasonably be supposed that, but for such misdescription, the purchaser might never have entered, into the contract at all, in such case the contract is avoided altogether, and the purchaser is not bound to resort to the clause-of compensation.’ This is a negative proposition, but a pregnant one. If the error is of such consequence that it may be reasonably supposed that, but for the misdescription, the purchaser would not have bought,.the error is not within the condition. In each case therefore the question depends on the view of the-court as to the importance of the misdescription. Is, then, the error in the present case such as to fall within the rule laid' down by Tindal, C. J. ? The subject-matter here is ‘all that messuage or dwelling-house situate in Teall street, with the-builder’s yard, stables, and premises as lately in the occupation of G. Fawcett.’ Is the erroneous addition ‘and containing 1,372 square yards,’ material to the substance of the contract? Looking at what was described to the purchaser, did he get substantially what he contracted for ? Did the misdescription go to the essence of the contract and materially alter the substance of it? I agree with Mr. Justice North that it did not, and the misdescription is therefore within the condition, and the purchaser must complete, with compensation.”

These two cases (Arnold v. Arnold and Fawcett v. Holmes), in which the contracts had the same clause providing for compensation, illustrate the rule guiding the courts in these cases, and show that, after all, the compensation clause in the contract has little effect upon the result.

In the same direction is Whittemore v. Whittemore, L. R. 8 Eq. Cas. 603 (1869), where the quantity of square yards in the parcel sold was stated at seven hundred and fifty-three, instead of five hundred and seventy-three—a clear clerical error.

Other examples of specific performance at the instance of the vendor against the vendee are as follows:

King v. Wilson, 6 Beav. 124, decided by Lord Langdale. There the contract was to sell a piece of property in Islington, London, stated in the particulars to be forty-six feet in depth. 'In fact, the depth was only thirty-three feet. ' There the vendor insisted upon a conveyance without compensation, because the vendee was in possession and knew the depth; but that argu- ment did not prevail, and the vendee was allowed compensation. McQueen v. Farquhar, 11 Ves. 467 ; Scott v. Hanson, 1 Russ. & M. 128.

Winch v. Winchester, 1 Ves. & B. 375. There the only question was whether the defendant was entitled to an abatement on account of a deficiency in quantity of the land. It was sold for forty-one acres, "but on measurement only had thirty-six. Dyer v. Hargrave, 10 Ves. 505.

King v. Bardeau, 6 Johns. Ch. 38, decided by Chancellor Kent in an opinion in which he reviews all the authorities down to that date, is instructive. That was a case of vendor against vendee, and the lands sold were two lots adjoining each other, ■one of which was vacant and the other had a dwelling upon it, .and the dwelling was represented to be wholly on the one lot, whereas, in point of fact, it encroached upon, the other. Chancellor Kent enforced the contract, with an allowance by way of compensation for the difference in value by reason of the house ■ encroaching on the line of one of the lots.

The leading case in New Jersey, and one relied on by the defendant, is Miller v. Chetwood, 1 Gr. Ch. 199, decided by Chan- • cellor Pennington in 1839. That, like the present, was a bill by vendor against vendee to compel the specific performance of a contract to convey a plot of vacant land in the vicinity of the town, as it was then, of Elizabeth. It was made during the excitement due to speculating in town lots for which that period was famous. The property was represented to contain about nine acres, and when it came to be surveyed it really contained ■only six acres, and it was sold, not by the acre, but by the lump. Of the representation the chancellor says (on p. 206) : “The fact, then, I consider established that the complainant did represent to the purchaser, at the time of the sale, that there were about nine acres, when, in truth, there were but six and sixteen"hundreths of an acre. How far this misrepresentation was willfully made it is not, perhaps, necessary for mo to decide, but I could wish there was less reason from the evidence to think that it was so made.” But it is impossible to read the remainder of' the opinion without feeling that he treated the misrepresentation as a willful one, and as the land was purchased to be cut. up into building lots, the quantity was of the utmost importance.. Thus he says (on p. 208) : “The general principles, which I extract from the cases, are- that, on a bill for a specific performance, the court will grant its aid or not; according to the justice of the case; and that it will never interfere when the party has practiced any fraud or been guilty of misrepresentation in*, any material particular. In the present case it is insisted that the quantity of land was not material; that the purchaser bought by the lot or parcel, and not by the acre; and that, as the land was before his eyes, and subject every day to his observation, he could not have been imposed upon. The plain answer to-all this argument is that it can furnish no excuse to the complainant for his misrepresentation. He was bound to declare the truth at any rate, and not having done so, I cannot say, according to the case in Saxton, that he comes here ‘with perfect propriety of conduct/ But can it be pretended that, in the purchase - of a vacant lot, it makes no difference to the purchaser whether it contains six or nine acres ? The defendant has said, in -his answer, that he never would have purchased, at the price he gave, had he not relied on the quantity of nine acres, as stated by the complainant, and he offered to fulfil his contract if a ■ rebate was made for the deficiency in acres. It is true the defendant saw the lot daily, but the eye cannot tell the number of' acres. We may be greatly deceived. The defendant went into ■ this agreement, undoubtedly, with too much haste; he should, have surveyed the land; but still it can furnish no justification-for the complainant.”

It thus appears that the case has no application here, for the • reason that the vendee was willing to fulfil, with compensation, and the vendor refused to do so.

The present case is further distinguishable from Miller v. Chetwood in that it was, as I have said, conceded that the misrepresentation was made in entire ignorance and innocence by" the complainant, and also by Mr. Kays. And one cannot but remark that there was no imaginable reason why Mr. Kays should misrepresent the size of his lot; he himself expected to be a purchaser, and would, on that account, not be expected'to exaggerate its value. On the other hand, he was a highly honorable and strictly honest man, and he intended, undoubtedly, to do full justice to his creditors, and for that purpose he prepared and handed to his trustee a full, and, what he believed to be, an accurate, description.

I have gone through all the New Jersey cases cited by the ■counsel for the complainant, and find none which makes more strongly in his favor than Miller v. Chetwood. The latest is Melick v. Cross, decided January 11th, 1902, by Vice-Chancellor Emery, and reported in 17 Dick. Ch. Rep. 545. That was a bill for specific performance by the vendee, and a cross-bill, with the same prayer, by the vendor. The defect was a reservation by .a prior owner of the property of a water-right in the tract, and the prayer of the vendee was that he should either have the specific performance free and clear of the reservation, or have his money returned to him. The learned judge held that, under the facts of the case, the vendee complainant had waived the defect, and a decree was made in favor of the defendant against the complainant for specific performance, with compensation. There were other complications in the case, but it is sufficient to say that the precise question here involved was not there passed upon.

An examination of all the authorities leads me to the conclusion that the rule has been stated with reasonable accuracy by Professor Pomeroy, as above quoted.

Applying that principle to the facts of this case, I come to the conclusion that there is nothing to warrant the idea that the defendant would not have purchased if he had known the true width of the lot, and that the case is subject to the same considerations which influenced the court in the cases of Whittemore v. Whittemore and Fawcett v. Holmes, above cited. In both cases the purchaser saw just what he was buying, and would acquire, by the deed, just what he saw and thought he was buying, and the misrepresentation as to the quantity was innocent, and it is plain that the court, in each case, believed that had the true quantity been stated the purchaser would still have bought.

And yet it must be taken into account that the plot of land which the defendant will here get is not of as great a value as it would have been if it had been of the size mentioned in the description. This seems to me to make it a plain case for specific performance, with compensation.

There was little dispute as to the value, namely, $50 per front foot, irrespective of the building. The actual frontage is ninety-two and eight-tenths feet, and that width extends back about sixty feet; then there is a jog, reducing the width to ninety feet, and then the width increases again, as we have seen, to the rear of the lot. I shall treat it, however, as having a frontage of only ninety feet, and allow the defendant $500 from the price bid; but that sum must be subject to a deduction on account of the widow’s right of dower, which, at her age, is $35, leaving a credit of $465 on the amount of the bid—$7,020—making the amount $6,555, and will advise a decree for specific performance upon the payment of that amount, but, under the circumstances, without costs.


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    Joseph Burkhardt v. Emelie Burkhardt.
    [Submitted June 7th, 1902.
    Decided June 10th, 1902.
    Filed October 11th, 1902.]
    1. Where defendant’s husband was absent and unheard of for more than seven years, marriage by defendant with complainant, after that time, was valid under Gen. Stat. p. 1187, creating- a presumption of death from such absence.
    2. Under Gen. Stat. p. 1187, creating a presumption of death from seven years’ absence, the time of death is ordinarily presumed to be at the expiration of the seven years.

      On bill, answer and proofs in open court.

      Mr. Alexander Simpson, for the complainant.

      Mr. Robert S. Hudspeth, for the defendant.
   Pitney, V. C.

The object of the bill is to procure from the court a declaration of nullity of a ceremony of marriage which took place between the complainant and defendant on the 26th of February, 1898. The allegation is that, at the time of such ceremony, the defendant was the- wife of a living husband, one Frederick Iioeger. The answer admits the marriage to the-complainant, but denies that, at the time thereof, the defendant was the wife of Hoeger.

The parties went to trial on this issue; and I might dispose of the cause by simply saying that the complainant entirely failed to prove any marriage, either ceremonial or purely contractual, between the defendant and Hoeger.

But the history of the defendant was gone into for a period-of over fifteen years, and another issue was raised, discussed and submitted to the court, which was not involved in the pleadings.It is, shortly, this: The complainant failing to show the marriage relation between the defendant and Hoeger to exist, did show that, at one time, such relation existed between the defendant and one Hoffman; and the question was whether Hoffman was alive when the marriage ceremony took place between-the parties hereto.

' The defendant has had a varied experience for at least fifteen-years. She testified that she was born in April, 1870. In this I think she is mistaken, for it appears that in November, 1884, she-was married to one Wills, of Union township, Hudson county, and lived with him, in that neighborhood, for upwards of a year,. when she separated from him and went to live with her mother, - temporarily at least, in New York City. In December, 1886,. Wills commenced suit against her, in this court, for'divorce outlie ground of adultery, which was undefended, and on the 12th/. of March, 1887, a decree of divorce was signed against her. About the year 1889 she married one Joseph Hoffman, and lived with him for about a year, in the same county. ' He was a manufacturer of iron fences, balcony railings and the like in New York City. In 1890 he had the misfortune to run over, with his wagon, and kill a boy. Eor this he was arrested and set at large on bail, and then ran away. His only relatives at the time were a sister, living in Brooklyn, and a nephew by marriage, living in New York City. A few days later his sister received a letter from him dated at Chicago. She answered that letter, but received no reply, and' from that time to the time of the trial of this suit not a breath, has ever been heard from him. The sister and nephew were both sworn and testified to that effect, ahd that they had made earnest inquiries about him, without results. To the same effect is the evidence of the defendant. She swears that she inquired about him from everybody that she supposed would know, and received no tidings whatever of him.

After Hoffman left her she lived with her mother in Hoboken, and worked as a midwife. Her mother kept boarders, and among them was the man Hoeger. Hoeger cohabited with the defendant in her mother’s house, with the result that a child was born to her in January, 1893, and she gave her name as Hoeger to the midwife who attended her, and that name was inserted in the birth certificate. She swears that, at that time, she was engaged to and intended to marry Hoeger, but after-wards changed her mind and refused. Hoeger. swears that they were engaged to be married; but they both swear that they never were married, either by a minister, a magistrate or by mutual verbal promise to take one another as husband and wife at the present time. Hoeger swears that he was willing to marry her, but that she refused him; and a year or two after the birth of the child he married another woman, and has lived with her from that time on as his wife.

The complainant was thoroughly familiar with the circumstances of her marriage with Hoffman, her connection with Hoeger and the birth of the child. He was a married man at that time, living in the immediate neighborhood, and on friendly and rather intimate terms with the defendant and her mother. Having become a widower, he paid court to the defendant, after she separated from Hoeger, and, as I have said, with full knowledge that the child she was rearing was Hoeger’s child, and had taken his name, he married her. They lived together for a short time, and then separated.

The effect of the previous marriage with Hoffman was to render void any kind of marriage contract that may have been supposed to exist between the defendant and Hoeger, for, at the time of their connection, only two or three years had elapsed from the time of Hoffman’s disappearance.

This leaves the only question in the cause whether the presumption of the death of Hoffman, at the time of the ceremony of marriage between the complainant and defendant, was sufficient to legalize that ceremony.

The law applicable to the facts is perfectly well settled. Independent of our statute, there is a presumption against the continuance of life after a long absence, without evidence of continuing life. At the common law the turning point was fixed at seven years. Best. Ev. § lf-09, and cases cited to the American edition. The common law presumption is made imperative by our statute (Rev. Stat. p. 1187). Osborn v. Allen, 2 Dutch. 388 (per Chief-Justice Green); Hoyt v. Newbold, 16 Vr. 219; Clarke v. Canfield, 2 McCart. 119 (per Chancellor Green). In Osborn v. Allen Chief-Justice Green said: “All the proof that can be required or expected is that the party has been absent from the state, or from his family or home, and has not been heard from within the period prescribed by the statute. The effect of the statute was simply to define the limits and direct the application of an ancient rule of the common law, which had been adopted and applied by existing English statutes to certain specified cases.” And in Hoyt v. Newbold all the authorities are collected by Justice Parker, and the same doctrine laid down and extended to a case where a man had been absent from the state for a great many years, and title was sought to be made through him, by deed purporting to be executed by a man of the same name in California, without proof of his identity.—Held, that the title failed.

Numerous other authorities to the same effect were cited by the counsel for the defendant, among them a well-defined line of cases which holds that where the validity of a marriage is involved, the courts will presume death, under some circumstances, in less than the statutory period. I do not deem it necessary to cite or rely upon those cases. It is sufficient to say that there is not the slightest evidence disclosed by the case that the complainant was in anywise imposed upon by the defendant. He was a man of mature age, thoroughly able to take care of himself. He knew all about the defendant and her history, and she made no false representations to him.

Hnder the circumstances I think the death of Hoffman must be presumed, and, according to the case of Clarke v. Canfield, supra, it cannot be presumed to have occurred until about the year 1897, long after her connection with Hoeger had ceased; but it must be presumed to have occurred in that year, and that was prior to her marriage with the complainant.

My conclusion is that the complainant is not entitled to the relief prayed for, and the bill must be dismissed, with costs.


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    Joseph M. Perrine and another v. William D. Perrine et al.
    [Submitted June 9th, 1902.
    Decided June 19th, 1902.
    [Filed October 11th, 1902.]
    After a bill by a judgment creditor to set aside a conveyance of land by the judgment debtor to a third party,- on the ground that it was made in fraud of the judgment creditor, and answer thereto and issued joined thereon and reference to a vice-chancellor, it is improper practice (1) to permit other judgment creditors to be made parties complainant in that ■suit without notice of an application for that purpose to both complainant and the defendant who holds the title and who is alleged to be a fraudulent grantee, or consent of both; and, (2) an application to be permitted to be made a party complainant must be made to the vice-chancellor to whom the cause has been referred, and cannot be heard by the advisory master in the clerk’s office.
    On motion to vacate orders.
    This is a bill by a judgment creditor to set aside three several conveyances and one mortgage of several parcels of land made by the judgment debtor, William D. Perrine—two of the conveyances to Sarah M. Perrine, his wife, the other conveyance to his son Samuel E. Perrine and the mortgage to his son Elmer Perrine—on the ground that they are fraudulent as against the complainant’s debt.
    The original bill was filed January 29th, 1900. A demurrer was interposed in March, 1900. The cause was formally referred to Vice-Chancellor Pitney in May, 1900. The demurrer was sustained in June, 1900. An amended bill was filed in July, 1900. A demurrer to that bill was filed in August, 1900, and was sustained in October, 1900. A second amended bill was filed November 2d, 1900, and a demurrer thereto was filed in December, 1900. That demurrer was stricken out as frivolous, and an appeal was taken from the order striking it out, which was dismissed by the court of errors and appeals; and finally, in May, 1901, answers were filed by Sarah M. Perrine, the wife, and Samuel E. Perrine, the son, to whom the several conveyances were made. No answer was filed by Elmer Perrine, the mortgagee, and a decree pro confesso was taken against him.
    The cause was referred a second time to Vice-Chancellor Pitney, and the hearing of it set for September 10th, 1901. It was heard on that day and on October 10th and November 11th, 1901, and was argued and decided orally on November 25th, 1901. 50 Ail. Rep. QQlf..

    The decree declared the conveyance to the son Samuel to be fraudulent as against the complainant, and ordered that the land covered by that conveyance, and also the land covered by the mortgage, which was, in open court, confessed to be fraudulent as against complainant, be sold and the money brought into court. The validity of the two conveyances to the wife was reserved for further consideration.
    An appeal was taken by Samuel from that decree on the 10th of February, 1902, and later on an order was made by this court staying the sale of so much of the land as was comprised in the conveyance to the son Samuel. .
    The master sold the land covered by the admittedly fraudulent-mortgage, and it did not produce enough to pay the complainant and another defendant who. .had acquired rights under the mortgage.
    In the months of December, 1901, and January, 1902, five several persons filed their several petitions in this court, entitled in this cause, alleging themselves to be judgment creditors of the defendant William D. Perrine, and asked to be admitted as parties complainant to the suit, which petitions untruthfully stated that the bill was filed for the benefit of complainant and of such creditors as should come in and contribute to the exr pense of the suit. On the filing of these five separate petitions orders were made admitting each of the petitioners as a party complainant. These orders were signed by the chancellor, on the advice of the advisory master in the clerk’s office.
    Motion is now; made by the defendants Samuel E. Perrine and- Sarah M. Perrine to set aside each of those orders as improvidently made, and the solicitor who prepared the orders attended in opposition thereto. The motions were made to the chancellor, who referred them to Yiee-Chancellor Pitney.

      Mr. Howard W. Hayes, for the motion.

      Mr. Adrian 8. Appelget, contra.

   Pitney, Y. C.

The petitions and orders are all within the rule laid down in Iauch v. de Socarras, 11 Dick. Ch. Rep. 524, and are therefore not orders of course. The decision in Iauch v. de Socarras was not varied or disturbed by the decision in Morehouse v. Kissam, 13 Dick. Ch. Rep. 364. In the latter case several judgment creditors united in a bill to set aside a conveyance of land on the ground that it was fraudulent against each of them. And the defendant who held the title attacked had his “day in court,” and an opportunity to defend as to each of them. This opportunity to defend as to each judgment is a right of which this court cannot deprive the defendant. It is not necessary, however, to express any opinion as to the merits of the present applications as tested by the rule laid down in Iauch v. de Socarras. The orders must be set aside, for two reasons.

In the first place, they were made without any notice to either the complainant or defendants, and, as before observed, being orders to which the petitioners are entitled as of course, notice must be given. It is to be observed that the second amended bill, which is the one under which the cause proceeded, does not contain any statement that it is filed for the benefit of all creditors. Hence it cannot be treated as a consent on the part of the complainant for other judgment creditors to come in. In lauch v. de Socarras the complainant did consent, in open court, that the other judgment creditors should come in as parties complainant; but the orders were stricken out because the defendant did not so consent. Hence, I repeat, notice was necessary to both complainant and to such of the defendants as hold the title attacked.

The necessity of this notice is manifest when we consider that, in cases like the present, the real defendants are not the judgment debtors, but the holders of the' title attacked for fraud, and this title may be judicially determined to be invalid as against the complainant, and, at the same time, to be quite valid as against other judgment creditors of the grantor. Iauch v. de Socarras, supra. And as between the grantor or settler and the depositary of the title, the proceeds of the sale belong to the holders of the title, so that those proceeds are not necessarily assets which must be applied to the payment of all the judgment creditors of the grantor or settler.

The question whether other judgment creditors can participate in such surplus as remains after paying complainant, raises a distinct issue, which, in my judgment, this court has no power to determine, except after the holder of the title attacked has had an opportunity to be heard upon it, according to the rules and practice of the court and the fundamental principles of justice.

If, upon proper notice given, and after hearing both the complainant and the defendants, the court should be of opinion that it is a proper case to allow the petitioners to come in as parties complainant, I am of the opinion that the terms upon which they should come in should be settled by the court in the first instance.

In the second place, the orders were made upon the. advice of the advisory master—and, of course, without inspection by the chancellor—in direct disregard of Eule 194, which provides that after a cause has been referred to a vice-chancellor, all proceedings therein must be had before him, and hence it was not in the province of another judge to make these orders. It was for this reason that the chancellor declined to hear the present motion.

In this case, as in Iauch v. de Socarras, the petitions untruly stated .that the bill was filed for the benefit of the complainant and all other creditors who chose to come in and contribute to the expense of the suit. As remarked in Iauch v. de Socarras, I think this statement in a bill entirely immaterial. It can only operate as an invitation by and consent on complainant’s part to other creditors to come in. It cannot alter the essential character of the bill, or dispense with the necessity of notice to the defendant whose title is attacked.

The five orders will be set aside and discharged, with costs. I add “with costs” because the solicitor of the petitioners should have known what was the rule as settled in Iauch v. de Socarras, and the order admitting them was apparently produced by the untruthful statements of the petitions.

I have not overlooked the circumstance that the decree heretofore made in the cause on the merits, so far as it affects Samuel E. Perrine, is appealed from. That appeal leaves undisturbed the power of the court pending the appeal to deal with the proceeds of the sale of the land mortgaged to the other son, and also to deal with the conveyances to the wife. The cause is only partially removed by the appeal, and hence it is unnecessary to consider the power of the court to deal with the present question if the whole cause had been removed.


text:
    Charles T. Leonard v. David Craig Bowne, George B. Clark, George S. Clark and Matthias Woolley.
    [Submitted July 1st, 1902.
    Decided July 11th, 1902.
    Filed October 11th, 1902.]
    The defendant George S. Clark, being indebted to the defendant Bowne, procured the defendant George B. Clark, son of George S., to execute a bond and warrant of attorney to Bowne for the father’s debt; Bowne held that security without enforcing it, and allowed his debtor, Clark, the son, to continue in business as a merchant and to become indebted to the complainant, Leonard. Later on, Clark, the son, absconded. Thereupon Leonard issued an attachment against Clark, the son, and seized his goods. Clark, the father, induced Leonard, by false representations, to withdraw his attachment, for the purpose of enabling Bowne to obtain á preference over him by entering up his judgment and issuing execution thereon, which was done. Leonard, hearing of this, issued a second attachment, and the goods were sold by virtue of Bowne’s execution and Clark’s attachment.—Held, that Bowne could not maintain his priority over Leonard without claiming through the fraud practiced by Clark, the father, upon Leonard, and that Leonard was entitled to the fund.
    On final bearing on bill, answer and. proofs.

      Mr. William J. Leonard, for tbe complainant.

      Mr. Franlc P. McDermott, for tbe defendants.
   Pitney, V. C.

Tbe complainant, Charles T. Leonard, is a judgment creditor of tbe defendant George B. Clark, such judgment being based upon process by attachment against tbe said Clark as an absconding debtor. Tbe defendant David Craig Bowne is also a judgment creditor of tbe defendant George B. Clark. His judgment was by confession, and was entered and execution levied thereon a few days prior to the issuance of the attachment which resulted in the complainant’s judgment. The execution upon Bowne’s judgment was placed in the hands of the defendant Woolley, as sheriff, and by virtue, thereof he levied on a stock of goods, &c., in a country retail grocery store, and a few days later sold the same.

The complainant, upon the levying of his attachment, which was prior to the sheriff’s sale, filed the bill herein for relief against Bowne’s judgment. The proceeds of the sale are in the hands of the sheriff, and form the subject-matter of the present contest.

The complainant is not satisfied with a recovery of the proceeds of that sale, because the amount is not sufficient to pay his judgment, but contends that the defendant Bowne was, in law and equity, the partner of the defendant George B. Clark, and liable as such, and relief is asked against him in that aspect.

The testimony has been taken, and the case has been considered, without objection, quite irrespective of the pleading.

The facts are as follows: The defendant George S. Clark is the father of the defendant George B. Clark, and for a second wife he married the sister of the defendant Bowne. The defendant Bowne is a well-to-do farmer, living near Freehold, in Monmouth county, and between that town and Matawan. . At and before the year 1890 the defendant George S. Clark, the father, was engaged in the retail grocery business in Matawan, and was assisted financially therein by Bowne. From the start that business was a losing venture, and so continued. On February 3d, 1891, Clark, the father, was embarrassed and pressed by his creditors, and made a bill of sale to Bowne of all his store goods and plant; the consideration therein expressed was the sum of $1,606.28. At the same time, by separate writing, he assigned to Bowne all the money due him on book accounts, &e., at an expressed consideration of $216.44. No money was paid by Bowne to the elder Clark on these transactions; but it was supposed that the aggregate of the consideration-money mentioned in the bill of sale and in the assignment represented the amount that Clark was indebted to Bowne.

I stop here to say that at the trial of this cause evidence was given on that subject, and I ascertained that the amount due was actually about $1,300.

The business was continued without interruption by the elder Clark, in the name of Mr. Bowne, until the fall of that year. In the meantime some arrangement was made between the elder Clark and his creditors, winch, however, has no bearing upon the present case.

In the fall of 1891 George B. Clark, the son, attained his majority, and then, by a verbal arrangement, not witnessed by any writing, the defendant Bowne transferred to the young man the store and its contents and all the books of account, he assuming all the debts of the store proper and all the debts which the business then owed to the defendant Bowne. The business was continued as before, but in the name of the younger Clark, and it was managed afterwards, as before, by the elder Clark, and the family of the elder Clark and young Clark lived out of it.

In the month of June, 1892, the store was moved from Matawan to Atlantic Highlands into a store building owned by the complainant, Leonard.

On the 18th of July of that year the complainant endorsed a note of the young man, at his request and for his benefit, for $600, drawn at three months, which matured on the 18th of October of that year—1892—and which, I stop here to say, was renewed from time to time and finally paid by the complainant. On the 14th of October, 1892, four days before the maturity of that first note, the defendant George B. Clark, the son, signed a bond and warrant of attorney to confess judgment to the defendant Bowne for the sum of $1,600, which shortly after was delivered by the maker to Bowne, and kept by him for over a year without judgment being entered thereon. In the meantime the store was carried on in the name of the son, and managed by the father and son at a loss, and the indebtedness from the son to the complainant increased, so that, on the 18th of November, 1893, it amounted to over $1,000.

Some days prior to the 18th of November, 1893, the younger Clark, while suffering under a temporary aberration of mind, absconded, and his whereabouts was unknown to his father or to any member of the family for a considerable length of time. This fact coming to the knowledge of the complainant, he, on the 18th of November, made an affidavit as a foundation for a writ of attachment against young Clark as an absconding debtor, which writ was duly issued out of the Monmouth circuit court on the 20th and placed in the hands of the sheriff, who, by a deputy, took possession' of the store and made the usual proclamation, and the deputy continued in the possession of the store for a day or two.

The father at once visited Mr. Bowne, and also Mr. Dayton, who was the counsel of both parties, and communicated to each the situation of affairs. It is said that Bowne refused to do anything to assist the Clarks in the then emergency. Mr. Clark then applied to the complainant and begged of him to withdraw the writ, assuring him that the son would soon come back and that the business would proceed; gave a rosy color to the situation, and stated to the complainant that the son was only indebted to others than the complainant in about the sum of $500. Belying upon those statements, the complainant gave to the elder Clark a stipulation, signed by his attorney, dated the 23 d of November, that the cause be discontinued and attachment vacated. The elder Clark at once took it to Mr. Dayton, who immediately entered the order for vacation and discontinuance, then went to Mr. Bowne, and the two together went to Freehold, and on the 27th of November judgment was entered up in the Monmouth circuit court upon the bond and warrant' of attorney, and execution delivered to the sheriff. The latter promptly made a levy, but permitted the elder Clark to continue the business precisely as if no levy had been made. The fact that judgment had been entered and a levy made being brought to the attention of the complainant, he swore out and issued a second attachment against the son early in December, and placed it in the sheriff’s hands, and, under the two writs, the goods were sold, and, by order of this court, the money was kept in the hands of the sheriff. The net proceeds of the sale were only $233 and some cents.

The affidavit made by the defendant Bowne before the commissioner who ordered the judgment entered up was prepared by the commissioner, by direction of Mr. Dayton and Bowne, the former being disabled from using the pen; and it stated that the true consideration of the bond and warrant of attorney was money loaned and advanced by the complainant to the defendant. This was essentially false. The true consideration was the debt which the business owed the defendant Bowne—that is, the sum total of all the money which he had advanced, from time to time, for the business, either to the father, George S. Clark, or to the son, George B. Clark. As between the parties the business during the six months that it was conducted in the name of Bowne was treated as that of the father. The only money actually loaned and advanced by Bowne to the son were two sums, manifested by two checks, as follows: One dated December 31st, 1891, for $100, and the other June 21st, 1892, for $69.67—in all $169.67. The evidence that those checks were for money loaned and advanced is not entirely satisfactory. I think, however, it may be assumed that they do represent money loaned .and advanced.

In support of the proposition that the defendant Bowne is responsible as a silent partner of the two -Clarks, the complainant relies on all of the circumstances of the case; and argues that the business was really conducted for Bowne’s benefit; that he was to receive all the profits, if any; hence he ought to bear the burden of the losses. An elaborate argument in support of that position, presented by the counsel of complainant, has failed to convince me that the case is within the rule of law which he invokes and the line of cases which support it. Mr. Bowne was simply a creditor of the elder Clark, and was interested in the business to the extent, and no further, that if Clark was successful he would be paid the money he had loaned to Clark to assist him; and he loaned him his name to conduct the business for six months after the elder Clark had failed -and before the younger Clark became of age. I find no case in which such a state of affairs has been held to create a secret partnership between the parties such as- is relied upon.

As against the judgment of Bowne, and to establish his right to the money in the hands of the sheriff, the complainant makes three points:

First. That the judgment is void, because the affidavit does-not state the true consideration.

Second. That it ought not to take precedence over the complainant, because it was held in the hands of Bowne for more than a year without judgment, and the debtor allowed to proceed in business and obtain credit without being disturbed by a judgment; from which, in connection with all the circumstances, it is argued that it may be inferred that the defendant Bownepurposely abstained from entering judgment in order to enable-Clark to obtain on credit a large amount of merchandise upon which Bowne might levy by a sudden and unexpected entry of his judgment; and

Third. That the complainant was induced to forego a prior lien, which he obtained by virtue of his first attachment, by fraudulent practices -upon him by the elder Clark, which practices were indulged in by Clark for the especial purpose of giving Bowne the preference which the complainant had, by his diligence, honestly and properly obtained; and that in so doing. Clark acted as the agent of Bowne, either express or implied;, or, if the relation of agency, properly speaking, did not exist,, the relations were such that, on equitable principles, Bowne cannot be permitted to take advantage of Clark’s fraud.

First, with regard to the defect in the affidavit. It seems to-be settled, by the decision of the court of errors and appeals in Clapp v. Ely, 3 Dutch. 555, and by the supreme court in Warwick v. Petty, 15 Vr. 542, that where, as here, the affidavit made to-support a judgment by confession is partly true and partly false, the judgment will, in the absence of any fraudulent intent, beheld good to the extent of the truth of the affidavit. Here I find, as a matter of fact, that Bowne had advanced to the younger Clark $169.67, and to that extent I feel constrained to hold the-judgment good. I find, as a matter of fact, that the amount sworn to was actually due, and that no fraud in that respect was intended. Hence that point fails.

The second ground of attack is more serious. Counsel for Bowne relies upon the opinion and decision in Flemington Bank v. Jones, 5 Dick. Ch. Rep. 244, and, on appeal, sub nom. Lake v. Bank, 5 Dick. Ch. Rep. 486. The cases are distinguishable in their facts. Here Bowne, by permitting the business to be conducted in his name for six months by the elder Clark, had undoubtedly incurred considerable pecuniary obligations in addition to the debt of about $1,300 which the elder Clark owed him at the time of the transfer by him to Bowne. He (Bowne) knew the incapacity of the elder Clark to achieve success. He transferred the business to the son, without any written assignment, and upon the verbal understanding that the son should assume all his (Bowne’s) liability arising out of the business, including that of the father to him. No computation of the value of the goods or of the book accounts, or of the outstanding debts, was made. The young man simply stepped into Bowne’s shoes, agreeing to make Bowne whole. This was in September. The next July young Clark, after moving into Leonard’s store, is obliged to borrow money to keep his business going, which is done by making his own note and procuring Leonard to endorse it; and a few days before the note so endorsed by Leonard matured he gave Bowne the warrant of attorney in question, and is permitted to proceed in his business undisturbed by the judgment.

Now, it is at once apparent that there is no parallel between such a case and that of a loan on bond and warrant of attorney secured by a mortgage, or the mortgage which was in question in Flemington Bank v. Jones. It is fair to infer that if Leonard had refused to endorse a new note for renewal of the first one, the judgment would at once have been entered; and it is also fair to infer that Bowne had reason to believe that the business was not prosperous, and that the Clarks were doing business upon insufficient capital, and were, in fact, unable to pay their debts, and that some of their creditors would lose their claims. These circumstances, which are not found in the case of Flemington Bank v. Jones, make it doubtful whether it was equitable and just for Bowne to hold his bond and warrant of attorney and permit the Clarks to incur still further indebtedness, and then intervene and obtain preference over them. But I do not find it necessary to decide this question, standing by itself, although I think it has considerable bearing on the third point taken by the complainant, as above stated.

I am entirely satisfied that the elder Clark made misrepresentations to Leonard for the purpose of inducing him to withdraw his attachment, and thereby enable him (Clark) to prefer Bowne. His object in doing this was palpable. He had a natural desire to prefer Bowne over Leonard, and, besides, he imagined that Bowne, when he got his judgment and execution, would permit him to proceed and carry on the business. The proofs fail to show, except by inference, any authority from Bowne to Clark to practice this fraud. It is true that Clark called on Bowne shortly after the first attachment was levied and informed him of the situation, and he says that Bowne told him that he could do nothing for him; he would not intervene to pay off Leonard, or relieve him in any way. After he had received that information from Bowne, Clark made his false representations to Leonard, which were that the son would shortly return and proceed with the business, and that he was indebted to others than Mr. Leonard in only a few hundred dollars. He concealed from him the debt to Bowne and the bond and warrant of attorney which Bowne held. Immediately after he had induced Leonard to withdraw his attachment he procured Bowne to enter up his judgment; and it is here to be remarked that while the sheriff made a levy, he did not stop the business or close up the store, but permitted Clark to proceed until Leonard issued his second attachment.

Now, the question is whether Bowne can take advantage of Clark’s fraud. If Bowne was acting as Clark’s express agent, but without his authority to practice the fraud, the law is quite clear that Bowne could not take advantage of his agent’s fraud. And I think the same principle applies here, where there is no express agency proven. He was acting directly in Bowne’s interest, and so, I think, may be considered as a quasi agent of Bowne. See, on this point, Bliss v. Cronk, 17 Dick. Ch. Rep. 496.

But, independent of any notion of agency, actual or quasi, I am of the opinion that a man situated as was Bowne cannot, in the absence of any circumstances creating an estoppel, take advantage of a fraud practiced on another for his benefit, although he be innocent of any participation therein. The case stated briefly is this: Clark, the father, being indebted to Bowne, procures Clark, the son, to execute a bond and warrant of attorney to Bowne for the father’s debt; Bowne holds that security, without enforcing it, and allows Clark, the son, to proceed in business and become indebted. Later on Clark, the son, absconds, being largely in debt to Leonard; Leonard issues his attachment and seizes Clark’s (the son) goods. Clark, the father, in order to prefer Bowne and hoping to derive a benefit from a change of creditors, induces, by false representations, Leonard to withdraw his attachment for the purpose of enabling Bowne to obtain preference by an execution upon his judgment. Now, Bowne cannot maintain that preference without taking advantage of Clark’s (the father) fraud practiced on Leonard; and this, I think, equity will not permit him to do. The case is not different in principle from what it would be if Clark had, by fraudulent practices, induced Leonard to convey a tract of land to Bowne, in order to satisfy his debt to Bowne. In such case it seems clear that Bowne could not hold the land away from Leonard.

Hpon the whole case, then, I feel constrained to hold that the money in the hands of the sheriff must be paid to the complainant, and that the defendant Bowne must pay the costs.


author: Emery, V. C.

text:
    Herman Loehnberg v. Lizzie Kass Loehnberg et al., trustees, &c., under the will of August Loehnberg.
    [Filed June 4th, 1902.]
    1. The jurisdiction of a court of equity for enforcing payment of debts of a decedent, independent of the general administration of the statute in chancery, will not be exercised when the ordinary procedure at law, and under the statutes for collection of debts, is applicable, and there are no special reasons to supersede them.

      2. ‘ Bill in equity, by creditor at large, to enforce payment of debt, will not lie until the debt is established at law or admitted by the executors.
    3. Complainant in a bill to charge legatees and devisees with a claim against testator claimed that his sole remedy was in equity, since, being a devisee himself, he could not bring an action at law for the debt.— Held, that the contention was of no merit: (1) it appearing from the will that the trustees were devisees of the legal title, and as such were subject to suit, and (2) the personal estate being first liable for the debts and admitted to be sufficient to pay them.
    Heard on bill and demurrer.

      Mr. James McO. Morrow, for the demurrants.

      Mr. Thomas Anderson, contra.

   Emery, V. C.

Complainant’s bill is by a creditor of testator, August Loehnberg, filed on behalf of himself and other creditors against the legatees and devisees under testator’s will. Complainant is one of the sons of the testator, and his claim, as set out in the bill, is based upon moneys paid, laid out and expended, at testator’s request, in and about the maintenance, support and burial of testator’s wife in Germany, in the years 1894 and 1895, amounting in all to about $1,275, and also upon an account of these expenses rendered by complainant and defendant and settled between them, which testator, on February 1st, 1896, promised to pay on request. The testator died June 14th, 1896, his will was proved by the three executors named on June 30th, 1896, and one of the executors died in 1897.

The executors of the will were also appointed trustees to carry out the trusts of the will, and, as appears by the bill, the accounts of the surviving executors and trustees were presented to the orphans court and allowed on June 8th, 1900, and the balance on the accounting, being over- $116,000, remains in the hands of the trustees, who also hold the legal title to the lands devised in trust. It does not appear that complainant’s claim was presented to the executors, or that it has been admitted by them or established by judgment at law.

The general jurisdiction of the court of chancery for enforcing the payment of debts of a decedent is based on the general administration of the estate, arid when the jurisdiction is invoked, not for this purpose, but for the collection of the complainant’s claim only, it is not to be exercised in the absence of facts showing that the ordinary procedure at law and under the statutes for the collection of debts and settlement of the estate of decedents is not applicable, or should be superseded. No circumstances requiring a general accounting or administration of the estate appear in this case, and the only special relief, by way of accounting, asked by the bill is that all the legatees and devisees contribute ratably with complainant (who is one of the legatees) to the payment of complainant’s debt. The entire amount of money legacies, including the one to complainant of $5,000, is $7,500, and as the residuary personal estate seems to be over $116,000, no reason is apparent why there should be any accounting if complainant’s debt is. established against the executors. Until it is so established at law, or is admitted by the executors, a bill in equity by a mere creditor at large to enforce payment will not lie against the legatees or devisees. Rutherford v. Alyea, 9 Dick. Ch. Rep. 411 (Errors and Appeals, 1896); Edwards v. McClave, 10 Dick. Ch. Rep. 151; affirmed on appeal, 10 Dick. Ch. Rep. 822 (Errors and Appeals, 1896). These decisions also expressly settle the practice previously indicated in Dodson v. Sevars, 8 Dick. Ch. Rep. 347, &c. (Errors and Appeals, 1895), that a creditor proceeding in equity for the recovery of his debt against a legatee or devisee should show sufficient grounds for not resorting to the ordinary course of collecting it from the funds primarily liable in the hands of the executor or administrator, and they qualify to this extent the statement by Chancellor McGill, in Dodson v. Sevars, 7 Dick. Ch. Rep. 611, 618, as to the exercise of the jurisdiction in chancery before the establishment of the claim at law. The Orphans Court act (Rev. of 1898 § 72) provides for the presentation of claims tó the executor, after settlement of the estate and before distribution of the'surplus (which is the case here), and for the establishment of disputed claims. In this case it •does not appear that the claim was ever presented to the executors, and the executors are not made parties defendant in that ■capacity. As the persons who appear, by the bill, to be in possession of funds sufficient to pay the debt and primarily liable for it, the executors, as such, are necessary parties to a suit brought to charge the legatees or devisees with its payment. Congregational Church v. Benedict, 14. Dick. Ch. Rep. 136, 139 (Vice-Chancellor Stevens, 1899). The cases relied on by.complainant’s counsel to sustain the jurisdiction in this case have been examined, and they seem to be either eases where jurisdiction for the purpose of discovery or accounting Qr general administration of the estate in equity was necessary in order to enforce the payment of complainant’s debt, or cases in which there was some other special equity upon which to base the jurisdiction. The further contention was made' at the hearing that complainant’s relief as a creditor against the devisees was in equity only, because he was himself a devisee, and therefore could not bring an action at law for the debt, under the Heirs .and Devisees act. But, assuming that these facts sufficiently appear by the bill, the contention is not well founded—first, because,, under the will, so far as it is set out in the bill, the trustees appear to be the devisees of the legal title, and, as such devisees, are subject to suits at law by complainant against them, and secondly, -because the personal estate is first liable for the debts and must be exhausted before a creditor is entitled to file a bill in equity to enforce a lien upon the real estate. Rutherford v. Alyea, supra. Complainant’s bill does not seek payment •of his legacy, but only of his alleged debt, and no adjudication is intended to be made on his claim as legatee.

The demurrer is.sustained..