text:
    Abram R. Maxwell, complainant, v. Emily P. Winans et al., defendants.
    [Decided June 2d, 1924.]
    1. On bill of interpleader, either at common law or under P. L. 1901 oh. 1S3 § 11, it is requisite that complainant prove adverse, conflicting claims by defendants.
    2. A warehouseman cannot maintain bill of interpleader in respect of stored goods, either at common law or under the statute, where it appears that one defendant claims some of the stored articles and the other claim® other of the stored articles, but does not appear that any of the articles are claimed by. both defendants.
    3. Where the bill is of strict interpleader and complainant’s right to file such 'bill is denied, the bill cannot be treated as a bill in the nature of a bill of interpleader.
    4. Bill of strict interpleader cannot be maintained by a complainant who himself claims some interest in the subject-matter of the suit.
    5. A warehouseman cannot, at common law, maintain bill of inter-pleader as against his bailor and another claimant; nor can he maintain such bill under P. L. 1.901 oh. 18$, unless he pro ye that he has essentially complied with the requirements of that statute as to the issuance of a warehouse receipt.
    6. The essential requisites of the statutory warehouse receipt must appear from the instrument itself.
    On final hearing.

      Mr. Paul Q. Oliver, for the complainant.

      Mr. Prank G. Turner, for the. defendant Emily P. Winans.

      Mr. John Winans, pro se.

   Buchanan, V. C.

Complainant, a warehouseman, doing business under the name of “Westfield Storage Warehouses,” files bill of inter-pleader against the two defendants, in respect of certain goods alleged to have been stored with him by the defendant Emily P. Winans. His right to a decree that the defendants interpleader is contested by the defendant John Winans.

I think the bill must be dismissed for several reasons.

Complainant’s bill is one of strict interpleader. He alleges that the goods are separately claimed by each defendant; that he is unable to determine to which of them they belong; that he is, and always has been, willing to deliver •them to the one lawfully entitled to them, and offers so to' do; that he colludes with neither, and it does not appear by the bill that complainant claims any title or interest in the goods in himself.

In the first place, the proofs fail to establish the essential allegation of adverse claims. The goods are household goods, furniture and clothing. They were put in storage by the defendant Emily P. Winans, who is the wife of the other defendant. The proofs show that some of the articles were hers and some of them his, and the two defendants so admit, specifically, as to many articles. It is obvious from the testimony that the real question among the parties is as to whether or not the wife was authorized to place in storage those articles which belonged to the husband. I do not think the proofs go so far as to show that every one of the stored articles is the property of one defendant and is not claimed by the other; there may he some few articles which were not specifically mentioned in the testimony, but that is not sufficient. To sustain complainant’s bill it must appear, and the burden of proof is upon him to show it, that there are adverse claims by the two defendants. There is no proof that any of the articles are claimed by both. There is nothing to show that there would have been any controversy at all if complainant had permitted the Rusband to inspect the goods in storage and to take those claimed by him as his own. This is fatal to complainant’s case.

In the second place, the proofs show that complainant himself claims, and has always claimed, an interest in the goods, namely, a lien for unpaid storage charges to the amount of some four hundred dollars ($400), to which he claims to be entitled. The wife takes the position that the husband should pay these charges; he refuses, and denies liability in respect thereof on the ground that the complainant had no authorization or consent from him to- take and store any of the goods, and that the wife had no authorization or consent from him to place them in storage.

This claim of interest by complainant is fatal to a bill of strict interpleader, and the bill of strict interpleader cannot be treated as a bill in the nature of interpleader. Stevens v. Robinson, 118 Atl. Rep. 273.

In the third place, the complainant, being the bailee of one of the parties, has no right to file this bill of interpleader at common law. First National Bank of Morristown v. Bininger, 26 N. J. Eq. 345; New Jersey Title Guarantee and Trust Co. v. Rector, 75 N. J. Eq. 423. The latter case was reversed (76 N. J. Eq. 587), but not on that point. Complainant claims the right, however, by statute, under section 17 of the “Uniform Warehouse Receipts law” (4 N. J. Comp. Stat. 5777), which provides that—

“If more than one person claims the title or possession of the goods, the warehouseman may * * * require all known claimants to interplead.”

It was decided by this court in New Jersey Title Guarantee and Trust Co. v. Rector, supra, that a complainant could not claim the benefit of this section, unless he showed that he had complied with the other requirements of the statute as to giving warehouse receipt for the goods stored, and that the receipt given by the then complainant did not so comply. It was the latter of these two provisions which was reversed on the appeal (supra). The decision is still the law, therefore, except to- the 'extent modified in the appellate court.

It is--laid down in the appellate-opinion (at p. 591) that “a receipt or memorandum- given by .a warehouseman to his bailor, which shows that the property described therein was received'from the bailor; by-the warehouseman,: for safe, keeping-in tlie ordinary course of his business,” is sufficient to entitlé- the 'warehouseman -to-require his bailor and an adverse claimant to- interplead.

Complainant’s proofs in the present case, however, do not bring him within those provisions. They tend to show that he gave to the wife a paper (called variously in the testimony an “order” and “a receipt”), in this form:

“Please bring this .order to the office to exchange for storage receipt.
Office: 17 Prospect street, Westfield, N. J.
Mr......................................
Please deliver to bearer......”.................................
to be stored subject to the conditions on the back hereof.
Westfield .Storage Warehouses.
Per............................”

There are some printed conditions on the back, including a statement that “this order must be returned * * * before the goods. are delivered,” and that “this order -or the itemized storage receipt for which it can be exchanged” must be presented by anyone desiring to examine or withdraw goods, and that “this receipt is not negotiable, and is valid only in the hands of the person to whom it is issued.”

The testimony is that a paper in this form was given to Mrs. Winans by the van drivers at the time they came to the house for the goods, as was customary by complainant, as a temporary receipt, pending the making out of the regular itemized warehouse receipt; that the latter could not be made out until the goods were checked and listed at the ware house. There is no proof that this paper was signed, or that it was addressed to Mrs. Winans, or what, if anything, was entered thereon by way of description of the goods.

Prom the-proofs, therefore, this paper fails of compliance with the rules laid down by the court of errors and appeals in at least four particulars, which the receipt itself is required to show in its terms; it does not describe any property, it does not name the bailor, is not signed by the warehouseman, and, finally, even if all the blankb had been properly filled in, it still would fail to show on its face that the property described therein was received from the bailor by • the warehouseman. In its terms it would still be an order or request by the warehouseman to the bailor to deliver to the warehouseman’s agent, which is, obviously, a very different thing, and the situation is not changed by its being called a receipt, in the printed conditions.

Complainant’s proofs further tend to show that a proper and itemized warehouse receipt, complying with the necessary legal requirements, was made out after the arrival of the goods at the warehouse, and that notice was sent to Mrs. Winans to come and get it, bringing her “temporary receipt or order” to exchange therefor; that Mrs. Winans failed to do so, and that that was the reason, and the only reason, that the proper warehouse receipt was not delivered. He argues, therefore, that it was the fault of the bailor herself, if a proper warehouse receipt was not delivered, and that he should not be precluded thereby from his right to require interpleader.

One answer to that is that he was not prevented by Mrs. Winans from delivering the proper receipt to her, merely because she did not call for it, or bring the temporary order. There is nothing to show that he could not have mailed it to her, or called on her and delivered it in. person. He chose to adopt a certain course of conduct, and there is no' evidence that he did so because of any request of Mrs. Winans, or even by any consent on her part. Having done so, he must abide by the legal results of that course of conduct.

Moreover, even if we should assume that his contention might have some merit as against Mrs. Winans, it is not Mrs. Winans, but the other defendant, who is denying complainant’s right to interplead. Certainly, there can exist no ground for claiming any equitable estoppel as against him.

Finally, even if we should assume that complainant is not barred for failure to issue a proper warehouse receipt, and even if we assume that under section 17 he might file bill of interpleader, notwithstanding his own claim of lien on the goods for storage charges, the defect in- the proofs mentioned in the fourth paragraph of these conclusions is just as fatal on bill filed under that section as on a bill filed under the common law.


source: Caselaw Access Project

author: Buchanan, V. C.

license: Public Domain

text:
    Reginald B. Naugle, complainant, v. Bertha Baumann et al., defendants.
    [Decided June 5th, 1924.]
    1. Bill for a mere declaration of the rights of the parties cannot be maintained by a mortgagee whose mortgaged debt is matured and due, against the defendants alleged to claim title or interest in the mortgaged premises free and clear of the lien of the mortgage, unless by virtue of P. L. 1915 oh. 116 § 7.
    2. Under that statute bill may be filed for a declaration of the rights of the parties, only where it seeks the determination of the construction of a written, instrument.
    3. In such a case the question of construction, the determination whereof is sought, must be set forth in the bill.
    On final hearing.

      Mr. Earle E. Merrill, for cross-complainant Bertha Baumann.

      Messrs. Smith cfsSlingerland, for cross-defendant Naugle.
   Buchanan, V. C.

The origiiial bill in this case was filed by Naugle, as vendee of lands under a contract of sale from Herbert McYoy, against McYoy and his 'wife, for specific performance of the contract. McYoy was not the owner of the lands when the contract was made, but was himself the vendee under a contract from the owner, Karl B¡aumann. McYoy, subsequent to his contract with Naugle, assigned his contract from Baumann, to his wife, Mary McYoy. Baumann refused to complete, his contract by conveyance, and instead conveyed to his wife (defendant Bertha Baumann), who in turn conveyed to Elihu H. Cooley, taking hack a purchase-money mortgage. Mrs. McYo-y sued the Baumanns and Cooley for specific performance of the Baumann contract, and obtained decree that Cooley convey to her. Coo-ley never did so- convey, but, a copy of the decree was recorded under the statute. The Naugle contract in terms comprises o-nly a part of the lands, but complainant contends it was intended to comprise all. He prays for reformation, as well as for specific performance, and also praj's that “the status” o-f the mortgage from Cooley to- Bertha Baumann “be determined.”

Cross-bill was filed in this cause by the defendant Bertha Baumann, against complainant, Naugle, and against the McYoys, setting up substantially the foregoing facts, and further alleging that the cross-complainant is still the holder of the said mortgage made by Cooley, and that the moneys thereby secured are due and have not been paid. She also alleges that the McYoys “claim to- own in fee the lands described in said mortgage/’ notwithstanding they have received no deed from said Cooley, and that they claim and “assert that said mortgage is null and void and not a lien upon the lands described therein.”

It is further stated in the cross-bill that Naugle is made defendant to the cross-bill because the- decree might affect his rights; that Mrs. Baumann “'desires to- have her rights, under said mortgage, declared,” and the cross-bill prays that defendants disclose what interest they claim in the lands and upon what such claim is based, and that defendants “be’ decreed to execute and deliver such instruments and do such acts as shall be required to- vest in cross-complainant such rights in, to and under the mortgage as this court shall declare.”

(The hearing was had only in respect of the cross-bill, the parties stipulating that it should precede hearing on the original bill.)

This cross-bill has already been dismissed as to the Mc-Yoys. It must also he dismissed as to Naugle.

In the first place, it is utterly anamalo-us and unheard of - in character. It is a hill filed by a mortgagee, who says that her right to foreclose has matured, against persons whom the mortgagee says claim to be the present owners of the mortgaged premises, and who claim to hold free of the lien of the mortgage, and against another person claiming to have some equitable claim derived from and under the other two defendants, for the purpose of having this court determine and decree whether her mortgage is valid as against them; in other words, to decree whether or not she would be successful if she should file a bill to foreclose.

I know of no authority or precedent for the maintenance of such a bill as this, and I am well assured that none can be found. The proper course would be to file a bill for foreclosure of the mortgage, and, in the course of the proceedings, these cross-defendants being made parties, the questions presented would be properly brought up and determined. Mrs. Baumann, under the facts set up in her bill, can have no other interest in the mortgaged premises or in the claims made by these defendants, except her interest to secure payment of the original Cooley debt to her out of the proceeds of sale of the premises. The proper way for her to ascertain if she can secure such payment in that way is to file a bill for that specific purpose.

Her counsel seeks to justify the bill under section 7 of the 1915 Chancery act. P. L. 1915 ch. 116. That section is in nowise applicable. It provides that “any person claiming a right * * * under a * * * written instrument, may apply for the determination of any question of construction thereof, in so far as the same affects such right, and for a declaration of the rights of the parties interested.”

It extends only to the determination of any question of construction of the written instrument, and the matter of “declaration of the rights of the parties interested” is, of course, limited to rights involved in such question of construction. Cf. Semenowich v. Melnyk, 93 N. J. Eq. 67 (at p. 68). There is no question of construction of any written instrument presented in the pleadings in this cause.

From, the brief and argument of Mrs. Baumann’s 'counsel it appears that she claims that her mortgage is valid and subsisting on the lands as against defendants, and that this claim of hers is founded in part upon what she claims is the true construction of the decree in the McVoy-Baumann suit (hereinbefore mentioned) and of one ox more deeds. But this cannot avail her in this behalf, for these questions are not set up in the bill; it does not appear by the bill that it was filed to obtain a construction of these instruments; there is no issue in that behalf raised by the pleadings.


text:
    Pure Mint Company, complainant, v. George B. LaBarre et al., defendants.
    [Decided June 6th, 1924.]
    1. A “nickel-in-the-slot” machine, which delivers on each operation five cents worth of merchandise, plus a varying number (or none) of premium checks (the number of which, if any, is known to the customer in advance), plus also an announcement of the number of premium checks which will be delivered in addition to the merchandise on the next operation of the machine, is within the purview of section 05b of the Crimes act.
    2. The maintenance of such machines in operation is unlawful and against public policy, and the owners leasing such machines for operation are not entitled to injunction restraining seizure and confiscation thereof.
    On order to show cause for preliminary injunction.

      Mr. William A. Moore, for the complainant.

      Mr. Romulus F. Rimo, for the defendants.
   Buchanan, V. C.

Complainant’s bill seeks injunction against the police authorities of the city of Trenton to restrain them from seizing and confiscating certain machines owned by complainant and leased to various retail merchants in Trenton. In addition to the affidavits, one of the machines and its operation was demonstrated to the court, by consent of counsel on both sides.

The machine in question, known as “Jennings Legal Mint Salesman,” is an ingeniously conceived variation of the usual automatic vending machine. Upon the deposit of a nickel in the slot and the operation of a lever, the machine discharges a package of mint confections of a kind and size iiniversally sold at retail stores at the price of five cents. This happens on each operation of the machine. On some, but not all, operations of the machine, there is discharged, in addition to the package of mint, one or more “premium checks” or tokens, each of which is redeemable in merchandise of the retail value of five cents, from the general stock of the merchant, who is the lessee of the particular machine. The number of these premium checks discharged on each operation varies from none at all to six (or, perhaps, ten). The machine is so devised that an indicator tells a prospective operator, prior to his depositing his coin, just how many premium checks, if any, will be discharged in addition to the mint, on that operation. This numerical indicator appears on the machine as a part of a sign or inscription which says, “for five cents you receive a package of confection and ( ) premium checks” (the parenthesis representing an aperture through which the variable number on the indicator appears). The prospective customer knows, therefore, in advance of his operation, just what he will get for his five cents on that operation.; he does not know, however, what number will appear immediately after that operation, indicating the premiums he will get if he operates a second time.

The confiscation of machines and interference with complainant’s business therein is admitted by defendants, and justified as a part of their duty in the enforcement of the law. It is contended that the operation of the machines is in violation of section 65b. of the Crimes act (2 Comp. Stat. p. 1767), which reads:

“All playing for money or other valuable thing-, with any slot machine or device in the nature of a slot machine, or with any other instrument, engine, apparatus or device, having one or more figure or figures, number or numbers thereon, shall be a misdemeanor.”

This is the only issue raised in the argument, and the question of the right of seizure and confiscation need not be considered, since, ■ obviously, the machines are intended to do what they in fact do., and, if they violate the statute, complainant has no standing to ask the aid of this court.

The disputed question, therefore, is whether or not the machine is what is commonly termed a gambling device? Does the element of chance enter into the determination of what the customer gets in return for what he pays? Substantially the same question, in reference fo the same or similar machines, has been litigated in a number of other jurisdictions—in many instances so- recently that the1 decisions have not yet been officially reported. The weight of authority is that the machine is a gambling device, and I concur in this view.

It is true that a single operation of the machine, considered separately as a single completed act, contains no element of chance. The machine offers a certain specified and definite return to the prospective customer, and makes delivery thereof when the offer is accepted by the customer depositing his coin and operating the lever. If each customer were limited to a single operation (omitting consideration of collusion or combination of two or more .customers), .the machine could not be deemed a gambling device. The element o£ chance enters into the matter only with regard to the number of premium tokens which the machine, after the completion of the first operation, will offer for delivery (and deliver) on the next operation.

Complainant argues that the machine must needs be considered solely from the standpoint of a single separaté operation; that no customer has any right to a second operation, or to continue to operate it. It may well he that the customer has no such definite, technical, legal right; doubtless, as a matter of law, the shopkeeper would have a lawful right to refuse to permit a customer to operate the machine a second time in succession, just as he might lawfully refuse to sell a loaf of bread or a cigar to an intending purchaser. But it is not pretended that any shopkeeper having one of these machines ever has refused to permit a second successive operation, or is ever likely so to do-. The machine itself bears no announcement of any such limitation, and the only reason which can be conceived for the devising and manufacinre of such a machine is that the lure of the chance of gains on a second operation will induce, or help to induce, the first operation.

The customer may have no definite legal right to continue to operate, but, as a practical matter, he has such right under the sanction of common usage and custom, No one would ever think of attempting to displace a customer at one of the ordinary chocolate or chewing gum vending machines until such customer has completed his intended purchases. A customer in a retail store is by common usage conceded the “right” to continue to make additional purchases from the salesman who is waiting, on him.

Suppose a customer of one -of the machines in question, having once operated the machine, receiving only the package of mint and ño premium checks, sees that if he operates it again he will get five or ten premium checks. No shopkeeper, unless intent on commercial- suicide, would conceivably refuse to permit him to operate it a- second time, and any bystander who attempted to- displace the first customer would inevitabty bring on a breach of the peace.

• It is -also argued by complainant that the machine is not a gambling device, because there is no possibility of loss to the customer; because for each nickel deposited he invariably receives his five-cent package of mints, whether he, receives any premium checks or not. ■ -This contention is not.sound. The statute makes no such differentiation. It is just 'as much playing for valuable tilings (premium checks) whether the candy is delivered or not; the difference is in degree, but not in kind.

The maintenance of such machines in operation is unlawful and against public policy, and the owners leasing such machines for operation are not entitled to injunction restraining seizure and confiscation thereof.

The preliminary injunction will be denied and the interim restraint dissolved.


author: Fielder, V. C.

text:
    William Morris Imbrie et al., complainants, v. Emma M. Steen and Thomas F. McCran, attorney-general, &c., defendants.
    [Decided April 9th, 1924.]
    1. The doctrine of cy pres is recognized and applied by this court. Under it, a gift made for charitable purposes, which by lapse of time or otherwise, can no longer be literally or exactly executed, will be administered under the direction of this court, as near as may be to the donor’s intention. The plan or scheme for future administration must be submitted to and be approved by this court.
    2. The cy pres doctrine cannot be applied when the donor has directed what disposition shall be made of the trust property, in the event of the failure of the use to which he directed it should be devoted.
    3. Under Supp. Comp. Stat. p. 1308 § 1, the chancellor is authorized to order that lands conveyed to a religious, educational or charitable association be sold, when a sale will promote or benefit the trust. Such sale may be made free from the limitations of the trust, and the trust will thereupon attach to the proceeds of sale.
    4. Instead of ordering sale of such lands, the chancellor is authorized by the same statute to order that such lands be devoted to a use or - purpose other than, and not inconsistent with, the uses and purposes of the trust upon which the same were granted.

      On bill, &e.

      Messrs. Wall, Haight, Carey & Hartpence, for the complainants.
    The attorney-general, pro se.

   Fielder, V. C.

By deed dated March 5th, 1917, William M. Imbrie and Janet T. Imbrie, his wife, conveyed to themselves and others, as trustees, certain lands, with the building thereon erected now known as “Englewood Memorial House,” situate on the northwest corner of EnglewPod avenue and Armory street, in the city of Englewood. The conveyance' was a gift by the grantor, William M. Imbrie, to the trustees and their successors, upon the express terms and conditions, which in said conveyance were stated to be covenants running with the land, that the same should be held and used exclusively for Protestant religious and social work among and for the benefit of Italians, but if the number of persons of that race desiring to use the building should become small, the trustees were authorized to admit others to its use. It was stated in said conveyance that the trustees should have no power to sell or mortgage the property, or to consolidate or unite with any organization other than the Young Men’s Christian Association, but if at any time it should appear to the trustees that a sale or other disposition of the property is necessary, they should have power to make application to the chancellor, in accordance with the provisions of the New Jersey law relating to the sale or disposition of lands granted to religious, educational or charitable corporations, and, in the event of sale being directed, to apply the proceeds of sale in accordance with the order of the chancellor. The donors reserved the right to change the terms and conditions of the gift in any manner.

The building cost to erect and furnish about $40,000. The intention of the donors was to Americanize the Italian residents of Englewood and vicinity through religious and social work conducted at the “Memorial House,” hut a few years after it was established an Italian church was erected in the neighborhood and the Italian people discontinued their attendance at the “Memorial House,” whereupon the trustees devoted it to a meeting place and club room for all boys and girls for social and recreation purposes.

By a supplemental deed or declaration of the terms of the trust, dated April 2d, 1921, made bjr "William M. Imbrie and wife to the trustees and duty recorded, the donors declared that the said premises should “be used exclusively to serve the needs of the community, so as to develop better lives through the encouragement of wholesome activities of any kind that shall be deemed by the trustees to further such purposes;” that no person or organization, other than the trustees, should control the use and occupation of the premises ; that the trustees should have no power to sell or moregage the premises, unless because of a material change in the character of the neighborhood, the object and purposes of the gift became no longer capable of fulfillment, in which event the trustees were authorized to make application to the chancellor, in accordance with the provisions of the New Jersey law relating to the sale or disposition of lands granted to religious, educational or charitable corporations, and, in the event of a sale being directed, the proceeds should be applied to carrying on similar work elsewhere in accordance with the order of the chancellor.

The expense of maintaining the building and carrying on the work therein was borne by the donors for several years, and when they became no longer able to continue their financial support, the work was taken over temporarily by Englewood residents interested in philanthropic, charitable and social welfare wtork, and in Majr, 1922, some of these men and women incorporated the “Spcial Service Federation of Englewood,” under the laws of this state, Mr. Imbrie and three other trustees of the “Memorial House” being among the incorporators, and this corporation has been and is conducting, settlement and social welfare work at the “Memorial House,” an.d it is the desire of the donors and the trustees that such work be continued by the federation, to which the •federation consents, provided the property can be conveyed to it free of the covenants, conditions and restrictions imposed by the deed of trust and supplemental deed. ■

The general object for which the federation was organized, as stated in its certificate of incorporation, is “to serve the needs of the community (of Englewood) so as to develop, better lives through the encouragement of activities of:any kind that shall be deemed by the trustees to further-such purposes,” and the specific object of its organization is to-conduct philanthropic, charitable, settlement and social welfare work among the residents of Englewood in need of such, service. • ■ .

The complainants in this cause are William M. Imbrie, his wife and all the other trustees named under his gift) except Emma 3VI. Steen, a trustee named in the original deed, who has since resigned. She is made a defendant to the suit with the attorney-general of the state, and the specific prayer of the bill is that the complainants may be authorized to convey the property in question to the social service federation of Englewood, free from the covenants, conditions and restrictions contained in the deed and supplemental deed above mentioned, to the end that the property, when so- conveyed, may be held, used, conveyed, mortgaged or otherwise disposed of by the grantee, free from any covenants, conditions or restrictions. The defendant Emma M. Steen has filed her consent to the entry of a decree in accordance- with the prayer of the bill, and the attorney-general, representing the undefined body of the public which may have acquired an interest in the property under the terms of the conveyance from Mr. and Mrs. Imbrie, has filed an answer alleging; that the rights of the public in the trust should be preserved, and stating that he sees no objection to a conveyance of .the property by the trustees to the- federation, for the purpose of carrying out the trust imposed on the trustees, in .case it shall be found that the federation is able to administer, the trust. . '

The doctrine of cy pres is recognized and applied by this court. The principle of the doctrine is that when a gift has been made for charitable purposes, which, by lapse of time or otherwise, can no longer be literally or exactly executed, the gift will be administered under the direction of the court of chancery, as near as may be, according to the donor’s'intention, The plan or scheme for the future administration of the gift must be submitted to and approved by this court. Mackenzie v. Trustees, 67 N. J. Eq. 652, 672; St. James Church v. Wilson, 82 N. J. Eq. 546; affirmed, 83 N. J. Eq. 324; Christian v. Catholic Church, 91 N. J. Eq. 374 But the doctrine cannot be applied when the donor has directed what disposition shall be made of the trust property in the event of the failure of the use to which he directed it should be devoted. Larkin v. Wikoff, 75 N. J. Eq. 462; affirmed, 77 N. J. Eq. 589; First Congregational Society v. Bridgeport, 121 Atl. Rep. 77.

The proofs show that the trustees of the gift find no demand for the purposes- for which the gift was originally established, namely, for the benefit of people of the Italian race, and that in earning out the supplemental purposes of the gift and in maintaining the building they are hampered and circumscribed by lack of funds, and there is danger that the general purpose and object of the donors will be defeated by a compulsory abandonment of the property. The social service federation is able financially to maintain the property and carry on the work committed by the donors to the trustees, and the object for which the federation was incorporated, as quoted above, is almost -identical in language with the object declared by the donors in their supplemental deed or declaration of the terms of trust, and the transfer of the-property to the federation and the conduct of its social welfare work therein, so nearly along the same ideas as defined by the donors, would promote and perpetuate the general purposes of the donors and would continue to benefit the individuals whom the donors had in mind. It is a situation in which the cy pres doctrine should be applied, unless the donors have directed otherwise, and the trustees be decreed to convey the property to the social service federation to administer, as near as may be, for the purposes for which the trust was created, but in making such decree this court could not direct the trustees-to convey a better or larger estate than was conveyed to them. The property came to their hands upon certain terms and conditions, which were stated to be covenants running with the land, and to convert this limited estate into a fee free from all restrictions and conditions, by a decree of this court, would be quite contrary to the doctrine of cy pres.

If it were desired that the cy pres doctrine be applied, I am confronted with the terms of the original and supplemental deeds which state the donors’ intention and direction to be that the trustees shall have no power to sell or mortgage, or to transfer the property to any other organization or, association. The original deed provides that the trustees shall have no power to consolidate 'or unite with any organization other than the Young Men’s Christian Association, and the supplemental deed provides that no person or organization, other than the trustees, shall control the use and occupation of the premises. This court should not, under the guise of cy pres, authorize or sanction an act of the trustees, which the donors have expressly prohibited.

When lands have been conveyed to any religious, educational or charitable association, or to trustees thereof, upon trusts that the same shall be held and used for specific uses and purposes, but without power to' sell or otherwise dispose of the same, and it shall appear to the chancellor that a sale thereof will promote and benefit the trust, the chancellor is authorized to order that the lands be sold free from the limitations of the trust, and that the proceeds of sale be held upon the same or like conditions, limitations or trusts as were declared in the original trust, or be devoted to some use not inconsistent therewith. P. L. 1911 p. 76; Supp. Comp. Stat. p. 1308 § 1. Under this statute the lands in question can be ordered sold free of the trust, whereupon the trust attaches to the proceeds of sale, but the complainants in this case do not desire a sale.

Under the same statute, whenever it shall appear to the chancellor that such a trust will be benefited by devoting the lands to some use or purpose, other than the specific use or crust upon which the same were conveyed, the chancellor is authorized to order the trustees to devote such lands to some use or purpose other than, and not inconsistent with, the uses and purposes of the trust upon which the same were granted to them. This is an attempt to state the cy pres doctrine in statutory language and does not help the complainants, because it does not contemplate that the lands, when devoted to another use, shall be entirely freed from the limitations and conditions of the trust, but that the lands shall remain in trust, subject to limitations, conditions and terms, as near as may be, to- those of the original trust.

Einally, the deed and supplemental deed point out the course the trustees shall follow when they are no longer able to carry out the object and purposes of the gift. They are directed to apply to the chancellor “in accordance with the provisions of the New Jersey law relating to the sale or disposition of lands granted to religious, educational or charitable corporations.” The statute (P. L. 1911 p. 76) was in force when the deed’ and supplemental deed were executed, and is undoubtedly the “New Jersey law” which the donors had in mind. As I have endeavored to sho-w, the chancellor may, under this statute, order that the property be sold, or that it be devoted to a use not inconsistent with the uses and purposes of the existing trust. In -the event that the chancellor shall order a sale, the original deed of trust provides that the trustees shall apply the proceeds in accordance with the chancellor's order, and the supplemental deed provides that the proceeds shall be applied in carrying on similar work elsewhere, in accordance with the order of the chancellor. Neither of the orders which the chancellor may makq under the statute appears to be desired by the coinplainants.

In stating my conclusions, I have had in mind' the rights acquired under the deed and supplemental deed, by that portion of the public which was intended by the donors to benefit by the trust, and also the duties of the trustees to such beneficiaries. I feel that tins court cannot completely terminate those rights by authorizing the trustees to- convey the property to the social service-federation of Englewood, free from the covenants, conditions and restrictions of the trust, to the end that the property may be held, used, conveyed, mortgaged or otherwise disposed of by the grantee, free from covenants, conditions and restrictions. The complainants, William M. Imbrie and Janet T. Imbrie, as individuals and not as trustees, being the donors of the trust, need no decree of this court to enable them to make conveyance or release of their reversionary or other individual right or interest in the property.

Railing to obtain the specific relief for which they pray, the complainants may wish to accept a decree that the trustees convey the property to- the social service federation, to hold and administer, as near as may be, for the purpose for which the trust was created. Such a decree can be made under the general prayer contained in the bill, for such other relief as the case may require and as may be agreeable to equity, and it would be justified in this case under that portion of P. L. 1911 p. 76, which authorizes the chancellor to order the trustees to devote the property to- some use or purpose other than and not inconsistent with the uses and purposes for which the property was granted to them. The donors, Mr. and Mrs. Imbrie, are complainants herein; they join with the trustees in the specific and general prayers for relief, and they will be bound by the court’s decree: Mr. Imbrie was a witness at the hearing of this cause and testified that it is his wish that the trustees be permitted to convey the property to the federation to hold for the object for which it was incorporated, and it has beep noted that he and Mrs. Imbrie were among the incorporato-rs of the federation. Moreover, by their deed and supplemental deed, Mr. and Mrs. Imbrie authorized the trustees to make application to the chancellor under P. L. 1911 p. 76, in case they could no longer carry out the purpose and object of the trust, and thereby- they impliedly consented to such order as the chancellor is empowered by that statute to make. I have pointed out that the object for which the federation Was incorporated is almost identical with the object of the trust as declared by the donors in their supplemental deed, and I believe that the general purpose of the donors will be accomplished, and the rights of the public will be protected and conserved, if a decree be made pursuant to the statute that the trustees convey the property to the federation in trust, to hold for the object specified in its, certificate of incorporation. Such a decree would, in effect, be merely substituting an incorporated trustee for the individual trustees.


text:
    Carolyn E. Sampson, administratrix and individually, complainant, v. Lucy A. Sampson, executrix, defendant.
    [Decided May 16th, 1924.]
    1. Where a testator gives all his estate to his executors, in trust, to pay the income therefrom to his wife for life, and after her decease to divide said estate between Ms son and grandson, to whom he gives and bequeaths the same, the son and grandson take a vested estate in remainder upon the death of the testator.
    2. Where a testator gives positive directions to his executors to sell his real estate and distribute the proceeds as money, or the provisions of the will require the executors to exercise their power of sale, the real estate will be considered as having been converted into money as of the date of the testator’s death. If the executors are given merely an authority to sell, in their discretion, the real estate retains its character as land until it is actually sold, but when sold, the proceeds thereupon became personalty and pass as such.
    3. Where one of the remaindermen dies in the lifetime of the life tenant, his widow has no dower in the lands in which her husband had a vested estate in remainder, because her husband never had seizin.
    4. The remaindermen are entitled, during the life of the life tenant, to require the executor to account for the personal estate of the testator and for the proceeds of sales made by him of the testator’s real estate.

      On bill and answer.

      Messrs. King & Vogt, fox the complainant.

      Messrs. Bolán c§ Bolán, for the defendant.
   Fielder, V. C.

The bill of complaint is filed by complainant individually and as administratrix of the personal estate of' George E. Sampson, deceased.

John W. Sampson died in the year 1913, leaving him surviving his widow, Lucy A. Sampson, a son, John W. Sampson, both of whom are living, and u grandson, George E. Sampson, who died February 9th, 1933, intestate, without children, and leaving the complainant, his widow, surviving him. So much of the will of John W. Sampson as is pertinent to this suit, reads as follows:

“Second. I do hereby give to my executors hereinafter named all my estate both real, personal and mixed of every hind and nature wheresoever the same may be situate, or in whose hands found, in trust however for the following purposes that is to say, that 'after the payment of expenses of the administration of my estate, the payment of taxes insurance and repairs to the buildings as the same may arise to give to my wife Lucy A. Sampson the use of all my household goods and furniture and of my residence and to pay over to her the rents issues and profits, interest and income from the residue of my estate, for and during the term of her natural life, and after her decease, to divide the same, including my entire estate between my son John W. Sampson, Jr., and my grandson George ‘R. Sampson, equally share and share alike, and I give and bequeath the same accordingly to have and to hold the same their heirs and assigns forever.
“Third. I do hereby give to my said executors full power and authority to sell and dispose of any or all of my real estate or personal property on such terms and at such prices as to them may seem best and to execute good and sufficient conveyances for the same, and the proceeds thereof to invest in good and safe bond and mortgage and to pay the interest and income thereof, after payment of expenses as aforesaid, to my said wife during her natural life, and at her decease to divide the same between my said son and grandson 'in manner aforesaid.
* * * $ * * _ *
“Lastly. I hereby make, constitute and appoint my said wife Lucy A. Sampson and my friend Alfred M. Goodale, Executors of this my last will and testatment.”

Lucy A. Sampson was the only executor who qualified under the will and she is still acting as executrix. John W. Sampson died seized of a number of tracts of land, several of which were sold by the executrix prior to the death of George R. Sampson, under the power of sale contained in the will. The executrix filed an inventory of the personal estate of her testator in 1912, but she has filed no account and she refuses to comply, with the complainant’s request that she account. The complainant prays that Lucy A. Sampson, as executrix (sole defendant to this suit), be required to account for the personal estate of her testator and for the proceeds which she received, or should have received, from the sales of real estate made- by her as executrix.

The defendant admits her liability to account for the personal estate of her testator and expresses her willingness to do so, but she denies the right of complainant to require her to account for the proceeds of sales made by her of the real ■estate of which John W. Sampson died seized, for the reason That complainant, as widow and administratrix of George R..Sampson, is entitled to no interest in such proceeds, because the estate devised to George R. Sampson was not vested in him at the time of his ’death, and because the sales of real '■estate made by the defendant executrix did not work a conwersion of the real estate into personal property, but that the proceeds of such sales maintain their character as real estate until, the death of Lucy A. Sampson, when such proceeds will descend as real estate to the heirs-at-law of George R. Samp'■son, free from any dower of complainant therein.

The determination of the questions raised, calls for a con-, struction of the will of John W. Sampson. The heirs-at-law of George R. Sampson and John W. Sampson, Jr., are concerned in the construction of the will, but they are not before the court. It is a proper policy of this court to avoid 'the Construction of a will when other parties than those before the court have an interest in the questions presented for solution. Therefore, while it is necessary for the determination of the issues here raised, to consider the meaning and intent of the will, the decree which I shall advise will not be a construction of any part of the will, but will be á direction whether or not the defendant should account to complainant-.

1. Under the terms of the will, George R. Sampson, on the death of the testator, took a vested estate in remainder in ■all the personal and real estate of which the testator died seized, subject to the power of sale in the executors. Post v. Herbert, 27 N. J. Eq. 542; Naundorf v. Schumann, 41 N. J. Eq. 14; Perrine v. Newell, 49 N. J. Eq. 57; Huber v. Donoghue, 49 N. J. Eq. 125; Miller v. Worrall, 59 N. J. Eq. 134; affirmed, 62 N. J. Eq. 776; Potter v. Nixon, 81 N. J. Eq. 338; Trenton Trust Co. v. Moore, 83 N. J. Eq. 584; affirmed, 84 N. J. Eq. 194; Freund v. Freund, 91 N. J. Eq. 80; Redmond v. Gummere, 94 N. J. Eq. 216.

2. Whenever a testator has given positive direction to his executors to sell his real estate and distribute the proceeds as money, or the provisions of the will require the executors to exercise their power of sale, the real estate will be considered as having been converted into money as of .the date of the testator’s death. If the executors are given merely an authority to sell in their discretion, the real estate retains its ■character as land until it is actually sold, but when sold, the proceeds thereupon become personalty and pass as such. Wurts v. Page, 19 N. J. Eq. 365; Cook v. Cook, 20 N. J. Eq. 375; Trenton Trust Co. v. Moore, supra; Keen v. Plume, 32 N. J. Eq. 526; Aitken v. Sharp, 93 N. J. Eq. 336.

The will in question contains no positive direction to the executors to sell, and I do not consider that the provisions of the will for the benefit of the widow, or for the ultimate division of the remainder, absolutely require a sale of the real estate. When the remaindermen become entitled to possession of their vested remainders, they may elect to take the property in common, or the estate may then be susceptible of actual division between them. At any rate, until the time for the division arrives, it cannot be said that the terms of the will require the executors to exercise their power of sale. It •is my - opinion that the testator authorized his executors to transmute his real estate into personal property whenever they might deem it for the benefit of his estate so to do, and that the testator contemplated that when such authority was exercised, but not until then, his land would change its character and become personal property. It is therefore my conclusion that the testator’s real estate, which was sold prior to the death of George R. Sampson, has been converted into personal property, and the vested remainder therein of George R. Sampson will pass to his personal representative on the death of Lucy A. Sampson. The unsold real estate retains its character as such, and the vested remainder therein of George R. Sampson will descend to his heirs-at-law.

3. The complainant, as widow of George R. Sampson, has no dower in the unsold real estate of which John W. Sampson died seized, because her husband never had seizin, either actual or legal, of such real estate (Woodhull v. Reid, 16 N. J. Law 128, 131; Weaver v. Patterson, 92 N. J. Eq. 170; Heldhauser v. Schulz, 93 N. J. Eq. 449, and cases cited in 21 A. L. R. 1073), and therefore she cannot require the defendant to account as to such real estate.

4. It is the duty of this court to protect the interest of the remaindermen during the life of Lucy A. Sampson. She is the sole executrix of this estate, and when she dies it may be found that the records of the estate have not been well kept, or that she has mingled estate money with her own. The remaindermen are entitled to have an account settled in the lifetime of the executrix and to know of what the estate consists, what disbursements and commissions the executrix claims, what proper charges should be made against her, and with what balance of corpus she is chargeable. Tappan v. Ricamio, 16 N. J. Eq. 89; Maxwell v. McCreery, 57 N. J. Eq. 287. The complainant, as administratrix of the personal estate of George R. Sampson, has an interest in the personal estate which will pass under the will of John W. Sampson, and she is entitled to have the defendant, as executrix of the estate of John W. Sampson, file an account in this court, which will show the personal property of her testator which came to her hands, the proceeds of sales made by her as executrix prior to the death of George R. Sampson, the disbursements and allowances claimed by her from principal, and the balance of corpus remaining in her hands and with such account there should be a statement of assets as required by orphans court rule 21.


author: Church, V. C.

text:
    Joseph Weliky, complainant, v. Piotr Zakrzewski, defendant,
    [Decided April 10th, 1924.]
    Where a restrictive clause in a contract made in Newark provided that “the party of the first part is not to open a similar business or work for anybody in a similar business within the radius of ten city blocks for five years, east, west, north and south,” an application for an injunction against the defendant engaging in a similar business in Irvington, which is a town, will be denied.
    On bill, &c.

      Mr. J. Thacldeus Respond, for the complainant.

      Mr. J. Herbert Hannoch, for the defendant.
   Church, V. C.

This is a case for the construction of a restrictive clause as to resuming business within a certain area. The clause in the contract reads as follows: “The party of the first part is not to open a similar business or work for anybody in a similar business within the radius of ten city blocks for five years, east, wtest, north or south.”

The principle involved in this case was decided in Messenger v. Fransblau, 118 Atl. Rep. 260. I, myself, filed an opinion in a ease very similar to this in Tsangas v. Broogos, 95 N. J. Eq. 499. There is a slight variation in the wording of these restrictions, “ten city blocks” and “area o'f ten city blocks,” and in the instant case, “within a radius of ten city blocks, north, east, south and west.” I do not think that the word “radius,” coupled with “north, south', east and west,” changes the situation, which has been decided in the other cases. Moreover, there is another reason why this injunction should be denied. The business that was sold was in Newark; the business that the defendant reopened was in Irvington. Irvington is not a city but a town, and how can one measure in the town of Irvington any distance by city blocks ?

I shall therefore deny the motion for the injunction.


text:
    Marya Traska, complainant, v. Mary Piekielko and Frank Piekielko, defendants.
    [Decided April 2d, 1924.]
    Where one contracted to purchase real estate, but was unable to fulfill the agreement for lack of funds, and then assigned her contract to others, who 'completed the purchase, the original contractor contributing part of the purchase price, and the purchasers entering into an agreement with her for the purpose of securing a return to her of the money so contributed, agreeing to allow her to repurchase the property for $4,000, the agreement is in fact an option to purchase at that price, and is not in effect a mortgage. There must be clear, unequivocal and convincing parol evidence to justify the court in assuming that an instrument is not what it purports to be.

      On bill, &c.

      Mr. Samuel H. Nelson (Mr. Louis A. Fast, of counsel), ■ for the complainant.

      Mr. John L. Fischbeclc (Mr. John Q. Frey, of counsel), for the defendants.
   Church, V. C.

This is a ease to construe an agreement for the sale of real estate taken in connection with a supplemental agreement thereto. The facts are that the complainant entered into an agreement with Samuel Klausner to purchase certain property and paid a deposit of $500. She was unable to consummate the transaction for lack of funds. She asked the defendant to make a loan of $3,000 to her and take a mortgage, but the defendant declined. Then complainant assigned her contract to the defendants, and a final agreement Avas entered into for the purpose of securing a return to complainant of such sums of money as she had contributed to the purchase price and a share of the profits. Defendants paid $3,000 for the purchase price, executed a building and loan mortgage for $9,500 and a second mortgage for $1,500 and received an absolute; deed from Klausner. Complainant contributed $1,765, or thereabouts, to, the purchase price. Defendants collect the rent and pay the dues on the building and loan mortgage. Complainant occupies a flat without rent and pays for repairs, interest and other charges. The complainant contends that her agreement is, in fact, a mortgage, and that to require her to pay the defendant $4,000 would be usury. I do not think that this is so. The agreement speaks for itself, and if the complainant, in her strained financial circumstances-, Avas Avilling to enter into an agreement with the defendant whereby each should place in the property certain moneys and each should assume certain responsibilities, the fact that the financial consideration was $4,000 does not affect its legality. The complainant found herself in a position where she was unable to consumm&te an agreement she had made and was in danger of losing her deposit, and therefore she made arrangements, is above stated, with the defendant to protect herself.

The agreement seems to be an option given to complainant to purchase the interest of defendants for $4,000, and upon her failure to exercise this option the defendants have the right to sell the property for the best price obtainable and account to the complainant for all the proceeds of the sale in excess of $4,000. There must be clear, unequivocal and convincing parol evidence to 'justify the court in assuming that an instrument is not what it purports to be. Cake v. Schull, 45 N. J. Eq. 208.

I will advise a decree dismissing the bill, with costs.


text:
    Josephine Rose Cole, petitioner, v. Levi K. Cole, defendant.
    [Decided April 19th, 1924.]
    Where a woman went to the State .of Nevada, and on petition of her husband and cross-bill filed by her obtained a decree of divorce there, her bona fide residence in that state having been judicially determined in that proceeding, the determination of that court is final in the absence of fraud, and she cannot ask this court that the decree of the Nevada court be set aside on the ground that although she voluntarily submitted herself to the jurisdiction of that court there was in fact no jurisdiction by that court.
    On petition, &c.

      Messrs. Heine, Bradner & Laird, for the petitioner.

      Mr. Walter D. Cough, for the defendant.
   Church, V. C.

This is a petition for alimony pendente lite. The facts are as follows: The defendant, Levi K. Cole, instituted suit for divorce from his wife, the petitioner, in 1915, in the New Jersey chancery court. It was dismissed by Yice-Chancellor Baekes. Thereafter, Cole went to' Florida, to California and then to Nevada. While living in Nevada the defendant instituted a suit in Nevada for divorce. The petitioner filed an appearance and a cross-bill. The action came on to be tried and defendant’s petition was dismissed and a divorce was granted to the petitioner in this ease in accordance with the prayer of her counter-claim.

The petitioner’s decree from the Nevada court was dated the 11th of Januay, 1918. After this,- defendant went to California and remained about two years. He returned to the State of New Jersey in 1920 and has continued to reside here. In November, 1922, the defendant married again. On December 4th, 1923, the petitioner filed this suit for divorce and makes application for alimony pendente lite. The exemplified copy of the proceedings in the Nevada court, which is before me, states that the petitioner in that case was a Iona fide resident of the State of Nevada. The question that arises therefore is: Was the decree of the Nevada court valid and effectual in dissolving the marriage between the' petitioner and the defendant? I think the case is governed by the dicision. of the court of errors and appeals in Fairchild v. Fairchild, 53 N. J. Eq. (8 Dick.) 678. In that case the court, speaking through Chief-Justice G-ummere, said: “Where the plaintiff in a cause is required by statute to have been a Iona fide resident of the state in which his action is brought for a fixed period of time, in order to enable him to maintain his action, the ascertainment by the court of the fact of such residence necessarily precedes a consideration of the merits of the case; and the determination of that question by the court is final, not only in the courts of that state, but in every other jurisdiction where the validity of the judgment comes in question, unless such determination has been procured by fraud.” There is no allegation of fraud in this case.

The petitioner in the instant case -wont to Nevada, voluntarily submitted herself to the jurisdiction of the court, won her suit, and is now asking that the determination be set aside on the ground that, although she voluntarily submitted to the jurisdiction, there was, in fact, no¡ jurisdiction by that court. The learned chief-justice in the case of Fairchild v. Fairchild discussed this matter, and quoting again from page 680, says: “That court had jurisdiction over the parties, the respondent having voluntarily appeared and made defense to the action brought against her there by the. appellant.”

The petition for alimony pendente lite, with leave to file petition for divorce, is denied.


text:
    Harry Krich, complainant, v. Meyer Zemel and others, defendants.
    [Decided May 9th, 1924.]
    1. Where an injury is irreparable, this court will enjoin continuous trespass.
    2. Where the court of errors and appeals has decided that one has a right to his land free and clear from certain encroachments, this court will, by mandatory injunction, restrain the continuance of the encroachments, which, unremoved, east a cloud on the marketable title of the property.
    On bill, &c.

      Messrs. Stein,, Stein cG Hannoch, for the complainant.

      Mr. Benjamin M. Weinberg, for the defendants.
   Church, V. C.

This is a bill filed by the complainant against the defendants for mandatory injunction restraining the defendants from using tlie complainant’s westerly wall as their easterly wall, and from continuing to permit the roof-beams and walls of said building to encroach upon complainant’s property.

This matter has been in the courts for some time, and was carried from the first district court of Newark to the New Jersey supreme court, and thence to the court of errors and appeals. This court, speaking through Mr. Justice Minturn (1 N. J. Adv. R. 1502), has stated the facts in regard to the matter very fully, and I quote Mr. Justice Mintum’s opinion, which clearly sets forth the facts:

“One Meyer had titlo to the lot with the building thereon [now property of complainant]. Adjoining his lot on the west [now property of defendants], upon the premises No. 301 Market street, existed-some indefinable structures which the brief denominates ‘shacks,’ the property of Samuel R. and William A. Baker. Meyer contracted with the Bakers, on April 22d, 1912, for the construction of a theatre building on their lot No-. 304 Market street, and in the agreement conceded to the Bakers the right to use the westerly wall upon No. 306 Market street ‘as long as the building about to be erected was in existence,’ and ‘as long as said building should stand on said property, of the said last-mentioned [Bakers] persons.’ The agreement having been duly recorded, the proposed structure was erected, and the parties entered into possession in accordance with the provisions of the agreement.

“The erectip-n of the building required the extension' of the roof-beams into the walls of the existing building on No. 306 Market street, to- a depth of about six inches, and to a height of about eight inches, upon a base of concrete, which formed a solid slab running across and used as the- roof and ceiling for the new structure, thus practically creating one structure of the two- adjoining buildings. In effectuating this agreement and prosecuting the work thereunder, the parties had, unfortunately, overlooked the rights of an existing mortgagee, and hence the present controversy.

“Prior to the execution of the agreement, and on June 25th, 1907, the premises. No. 306 Market street, had been mortgaged to Rachel A. Cartright, whose executrix in January, 1917 filed a bill to foreclose the mortgage, naming, inter alia, as defendants the two Bakers, and their wives, for the purpose of eliminating the easement in question. In due course a sheriff’s sale, was had, and the property, No. 306 Market street, was purchased by this plaintiff. [Property was net purchased at the sale by complainant, but by complainant’s predecessor in title.] Thereafter the defendants purchased the property, No: 304 Market street, and then the trouble began. The plaintiff insisted upon the removal of the roof-beams from the wall, and the defendants failing to accommodate him in that respect, this suit was instituted to establish his unqualified rights in the locus in quo. The court found these facts substantially :as stated, and the supreme .court affirmed the judgment, holding that £the right to continue the beams in the plaintiff’s building was cut off by the foreclosure of the mortgage, and the beams remaining constitute a trespass.’

■ “The substantial question presented is whether the defendants, under the agreement and conduct of their predecessor in title, possess any right or title as claimant under the easement thus established, which can be said to -be superior to the lien of an existing mortgage, whose lien or 'title has not been released or qualified in any way by the agreements referred to.

“The defendants’ predecessor in title possessed an easement in the wall of No. 306 Market street, enforceable between the parties to the contract, but in nowise affecting the contractual rights of the parties to an anterior duly recorded mortgage. Mount v. Manhattan Co., 43 N. J. Eq. 26; affirmed, 44 N. J. Eq. 297.

“The foreclosure of the mortgage vested in the purchaser at the sheriff’s sale a legal right to possess the property free and clear of the encumbrances imposed upon it by subsequent purchasers, who are.made parties to the foreclosure. Wimpfheimer v. Prudential Insurance Co., 56 N. J. Eq. 586; 19 R. C. L. 625, and cases.

“The plaintiff being the legal owner of the premises, and in possession thereof, was in a position to bring trespass fox damages for an invasion of his property right, and, incidentally, to establish his title to the locus m quo by such method of procedure. Trainor v. Wolff, 58 N. J. Law 381; 26 R. C. L. 989, and cases.

“The judgment appealed from will therefore be affirmed.”

One additional circumstance should be referred to. Prior to the time when defendants acquired title to their property, complainant stated to them the situation which existed with respect to the wall. Defendants called the attention of the vendors to this fact, and as a result received an allowance, on the sale price, of $2,000.

The court of errors and appeals having determined in the suit at law that the defendants have a legal right to possess the property free and clear from the encumbrances imposed upon it, I cannot see how this court can do anything except issue the injunction requested.' '

The defendants argue that it would be a very difficult matter to remedy the conditions as they now exist, but the testimony shows that these conditions can be remedied, but that it will cost in the neighborhood of $3,-500 to do it. The defendants contend that this court should not issue an injunction unless there will be irreparable loss by failure to do so.

With these encroachments unremoved, I think a cloud would be cast upon the marketable title of complainant’s propertjr, and I further believe that the damages resulting therefrom cannot be readily ascertainable in a court of law. One prospective purchaser might be willing to take the title at a reasonable price with the encroachments. On the other hand, another might refuse altogether. This, it seems to me, creates irreparable damage, which should be enjoined by the court. The case of Hirschberg v. Flusser, 87 N. J. Eq. 583, seems to be in point. In that case it was held that where the injury was'irreparable this'court will enjoin continuous trespasses. ■

I am of the opinion that the legal rights of the parties having been settled by a decision of the court of errors and appeals, that repeated actions for trespass will not give the complainant his proper remedy, and that the only relief he has is by the injunction asked for, which I will grant in ac cordance with the prayer of the bill.


text:
      Ten Eyck R. Beardsley, complainant, v. Empire Trust Company, defendant.
    [Decided May 9th, 1924.]
    1. When a mortgagee releases part of the mortgaged premises, the value of that part should be credited on the mortgage as of the date of the release, as to grantees of other parts of whose conveyances the mortgagee had actual knowledge at the time of the release.
    2. When a mortgagee has received the full amount of its mortgage debt from the sale of released property, it is inequitable to permit foreclosure of the mortgage on any unreleased lots for any balance claimed to be due on the mortgage.
    On bill, &c.

      Mr. William II. Osborne, for the complainant.

      Messrs. Samuel F. Frank and Mr. Fdward, Hollander, for the defendant.
   Church, V. C.

This is on bill, to quiet title with an answer and cross-bill, asserting the right of the defendant to foreclose a blanket mortgage on four lots of a tract of about six hundred lots owned by the complainant.

The facts as stated, in the brief and admitted at the argument are practically as follows:

The complainant, Empire Trust Company, is a corporation organized and existing under the laws of the State of New York, and having its principal office at No. 120 Broadway, borough of Manhattan, New York City, New York.

That heretofore and on or about the 8th day of May, 1911, one Josephine M. Brown, a widow, for the consideration therein mentioned, duly executed, acknowledged and delivered to Holland Security Company, a New York corporation, a certain mortgage for $20,000, dated on said 8th day of May, 1911, covering certain lands and premises then owned by said Josephine M. Brown, in the township of Eatontown, Monmouth county, New Jersey, therein fully described, and duly recorded in the office of the clerk of said-Monmouth county, New Jersey, on the 12th day of May, 1911, in book 415 of mortgages, pages 443, &c.

That said mortgage was duly given to secure payment of a certain bond of said Josephine M. Brown in the penal sum of $40,000 and conditioned for the payment of said sum of $20,000, on the 1st day of May, 1912, with interest at six per cent, per annum, payable semi-annually.

That said mortgage contained no release clause.

That thereafter and on or about the 27th day of August, 1920, said Holland Security Company, for a valuable consideration, duly assigned said mortgage and its accompanying-bond to one Mabel A. Cooper, by an instrument in writing bearing date on that day and duly recorded in the office of the clerk of said Monmouth county, New Jersey, on the 6th day of February, 1922, in book 83 of assignments of mortgages, page 444.

That thereafter and on or about the 22d day of November, 1920, said Mabel A. Cooper further duly assigned said mortgage and its accompanying bond to the defendant, Empire Trust Company, by an instrument in writing bearing date on that day and duly recorded in the office of the clerk of said Monmouth county, New Jersey, on said 6th day of February, 1922, in book 83 of assignments of mortgages, page 446.

That the defendant, Empire Trust Company, is now the owner and holder of said 'mortgage and its accompanying bond, and that on the 16th day of August, 1922, there was due and nnpaid thereon the principal sum of $20,000 and interest thereon at six per cent, from the 8th day of May, 1911, .to said 16th day of August, 1922, amounting to $13,526.66, a total of $33,526.66.

That subsequently to the execution and delivery of said mortgage, and by certain deed dated the 21st day of October, 1911, acknowledged the 30th day of October, 1911, and recorded in the office of the clerk of said Monmouth county, New Jersey, on the 2d day of November, 1911, in book 915 of deeds, pages 170, &c., said Josephine M. Brown, for a full valuable consideration, duty conveyed to the complainant, Ten Eyck R. Beardsley, a portion of the lands and premises described in said mortgage.

That said deed contained full covenants of warranty and seisin without mention of said mortgage, and that ever since the execution and delivery thereof the complainant, Ten Eyck R. Beardsleys has been in peaceable possession of the' lands and premises therein described.

That subsequently to the execution and delivery of said deed, Surplus Assets Company, a New York corporation, became the owner of all the lands and premises described in said mortgage except that portion of same conveyed to the complainant, Ten Eyck' R. Beardslay, and subject to an outstanding claim of ownership of another portion of same known as lot 35, in block 35.

That on the 16th day of August, .1922, the defendant, Empire Trust Company, duly executed and delivered to said Surplus Assets Company a release from the lien of its mortgage of all the lands and premises therein described except said portion of same conveyed to the complainant, Ten Eyck B. Beardsley, and said portion of same known as lot 35, in block 35.

That' said release was duly recorded in the office- of the clerk of said Monmouth county, New Jersey, in book 35 of releases of mortgages, page 421; that same was executed and delivered without the consent of the complainant, Ten Eyck R. Beardsley, and that at the time of such execution and delivery, the defendant, Empire Trust Company, had actual knowledge of the conveyance made to the complainant, Ten Eyck R. Beardsley, by said Josephine M. Brown.

When the defendant released other property covered by this mortgage, did he release property in excess of the amount due on the mortgage? This is a question of fact, and, considering the testimony that was produced before me, I am impressed with the fact that in 1922, when the release was given, the lots released were in value in excess of the amount due at that time on the mortgage, which was approximately $33,000. The defendant company did not produce any evidence of sales in 1922, although it appears that their records in New York would have disclosed this evidence. Some testimony was given as to the values of the property in 1923, and the witnesses stated that the values had not increased, and say that the values in 1923 might reasonably be held to be those of 1922. Taking a conservative estimate of values from all the evidence that was presented before me, I believe that the property as released was in excess of the $33,000 due on the mortgage in 1922.

The legal question, then, is, should not the defendant be required to cancel the blanket mortgage on the four lots that were not released? In other words, having received the entire amount of its mortgage, can it be allowed to foreclose a mortgage of approximately $20,000 on four lots that were not relieved of this mortgage ?

Hill v. Howell, 86 N. J. Eq. 25, holds: “If a mortgagee releases part of 'the mortgaged premises, the value of that part is to be credited upon the mortgage as of the date of the release, as to grantees of other parts, of whose conveyances the mortgagee had actual knowledge at the time of the release.” I cannot find that the doctrine stated in this case has been modified.

My attention has been called also to Turner v. Ridge Heights Land Co, 111 Atl. Rep. 675, and Souther v. Pearson, 28 Atl. Rep. 450. While these cases are not exactly in point, they sustain this general doctrine that a surety is released if the security be released.

Having received the full amount of its mortgaged debt in 1922, in my opinion, it would inequitable for this company to be permitted to foreclose on the four remaining lots, for any balance that it may claim on the mortgage.

. I shall therefore advise a decree sustaining the contention of the complainant.


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    Mary Babirecki, by Stephen Babirecki, her next friend, and Stephen Babirecki, complainants, v. Andeew G. Virgil, Frances Virgil, Louis J. Virgil, Mamie Virgil and Rose Cursi, defendants.
    [Decided May 9th, 1924.]
    Where a deed was made before judgment recovered against the grantor therein, the conveyance cannot be attacked, in the absence of fraud, even if the grantor be assumed to be in failing circumstances, as he may lawfully prefer a creditor unless the creditor unites with the one making the conveyance to defraud.
    On bill, &C.

      Mr. John V. Laddey, for the complainants.

      Mr. Frank B. Bozza and Mr. Ovidio Q. Biwiclñ, for the defendants.
   Church, V. C.

This is an application to set aside a deed which, it is alleged, was given in fraud of creditors.

On April 21st, 1921, complainants started a suit in the Essex county circuit court, and on February 10th, 1922, obtained a judgment in tort against Andrew, Louis and Frances Virgil for about $4,000.

Frances Virgil, on the 6th day of May, 1921, conveyed to Mamie Virgil a one-half undivided interest in a certain tract of land formerly owned by Mamie and Frances as tenants in common. The defendants assert that the deed is. bona, fide, that 'it.is supported by a valuable consideration, and that it is in pursuance of a trust agreement entered into four years before complainants’ rights arose, and that though the conveyance was made after suit' was instituted, but before judgment, defendants had a right, to make the conveyance, as they were preferring a prior creditor without fraud.

The crux of the case is the alleged agreement between Mamie and Frances. The situation of the title is as follows: On the 5th day of May, 1915, Mamie and Frances Virgil purchased in fee-simple from Oscar H. Condit, executor, two parcels of land adjoining each other. On August 25th, 1917, Mamie and Frances Virgil joined in a deed of conveyance to one Margaret G. Farrel, who, in turn, by a deed of even date, conveyed the two tracts to Mamie and Frances as tenants in common. It is alleged that Frances, before the conveyance of the estate in common, was indebted to Mamib in the sum of $2,500, constituting her share of the purchase price which had been paid by Mamie, and, accordingly, Frances agreed to pay Mamie that sum of money three years from the date of the agreement, and upon default to1 reconvey her one-half interest to Mamie, and until such payment to hold this one-half undivided interest in trust for Mamie. She was not able to raise the $2,500, and on May 6th, 1921, conveyed her one-half undivided interest to Mamie.

The complainants attack this evidence because, they allege, that there was fraud in this transaction. It it asserted, inber alia, that the agreement before mentioned was not in existence at the time it is alleged to have been signed, but was made after the institution of the suit in chancery. This is a matter of fact, and I cannot agree with the contention.

The agreement is drawn in a crude and ignorant manner, but I have no reason to assume, and cannot assume, in the face of the testimony that was produced before me, that it was not executed according to the date of the instrument. Neither do I think that the statement that the deed of -May 6th, 1921, is for a nominal consideration is of importance. It is a warranty deed with the usual covenants aDd consideration' is presumed.

Therefore, having come to the conclusion that, as a matter of fact, the agreement was valid when executed according to its contents for the consideration therein given, the remaining question is, Was the deed of May 6th executed in fraud of creditors ? The suit was started in the Essex county cir.cuit court on the 21st of April, 1921. The deed was on May 6th, 1921, and the judgment recovered was on February 10th, 1922. Therefore, when the suit was started, there were no creditors in existence, because the outcome of the suit was uncertain, and, under the cases, in the absence of fraud, a person, even if he be assumed to be in failing circumstances, may prefer a creditor unless the creditor unites with the one making the conveyance to defraud. Reed v. Tilton, 90 N. J. Eq. 42; Alenick v. Sorenson, 95 N. J. Eq. 518.

I, therefore, shall advise a decree denying the prayer of the complainants for .a rescission of the deed.


text:
    Eugene P. Bicknell et al., executors of the last will and testatment of Georgina A. Merritt, deceased, complainants, v. Alan R. Hawley et al., defendants.
    [Decided May 9th, 1924.]
    1. A will and a codicil should be construed together, except as the codicil modifies the will.

      2. Where this court has construed the language of a will as creating a contingent remainder in certain persons, subject to a life estate created by the will, the construction applies also to an increment to the fund, paid into the court of chancery by order of court.
    On bill, &e.

      Mr. George IF. Litterst, for the complainants.

      Mr. Gilbert D. Lamb, for the defendants.
   Church, V. C.

This is a bill in equity for the construction of the will of George Merritt, deceased. The facts are as follows:

George Merritt, a resident of the State of New Jersey, executed his original will on October 3d, 1871, a codicil thereto on December 29th, 1871, and then died in Rome) Italy, on December 23d. 1873, leaving a widow, Jane E. Merritt, who died on October 2d, 1890, one son, Nehemiah Merritt, who died without issue on November 12th, 1922, and five daughters, one of whom, Isabella Merritt Hawley, was then married and had then living four children, viz., two daughters, Wilhelmina, Jeannie (afterwards Jeannie Levee), and two sons, Alan E. Hawley and William Hawley.

Alan E. Hawley and William Hawley were then and ever since have been residents of the State of New York.

The five daughters of testator died in the following order:
Isabella M. Hawley, on September 7th, 1904.
Florence Merritt, on November 14th, 1913.
Helen Merritt, on March 6th, 1914.
Elizabeth Merritt,- on June 4th, 1914.
Georgina Merritt, on November 12th, 1918.
Nehemiah Merritt, on November 12th, 1922.

1 Nehemiah Merritt was the life tenant under the will and codicil of testator, and from the foregoing it will be perceived that all the five daughters of testator predeceased Nehemiah Merritt, only one daughter, Isabella, having married, and she was survived by the four children above mentioned as her issue. One of the four children, viz., Jeannie Levee, died without issue in 1918.

The particular provision of testator for his son, Nehemiah, and for the five daughters and issue of any deceased child, were contained in the following paragraphs of the will, and codicil:

‘'Third. I order and direct my Executors to invest safely and upon first real estate mortgage and to keep the same so invested, the sum of fifteen thousand dollars and to pay the interest and income thereof in quarterly payments, every year after my decease, to my son Nehemiah Merritt during his life, and upon his decease to pay the said principal moneys in case he should leave any lawful issue, to such issue in equal parts as tenants in common and in case he shall not leave any such issue, then to pay the said principal money to all my surviving children and the children of any deceased child or children the same to be divided equally, the child or children of any deceased child or children taking the same share which the parent if living would be entitled to.”

Also codicil:

“This is the codicil to my East Will and Testament made and published on the 3rd day of October, 1S71, in the Oity of New Brunswick, Middlesex Oo. New Jersey, United States of America, by me George Merritt, now of Nice, France, being of sound mind, and having considered I do hereby revoke, and declare, null & void, the legacy of Fifteen Thousand Dollars ($15,000) devised and bequeathed, by me, in my last will and testamant of date above mentioned to my son, Nehemiah Merritt, and in lieu thereof, I do hereby direct the Executors of my aforesaid will and testament, to invest in Bond and Mortgage on good Banded Securities sufficient money to produce the annual sum of One Thousands dollars ($1,000) the said one thousand dollars per annum, to he paid in equal weekly payments, to the said Nehemiah Merritt, and it is further my desire that my executor or executors shall cause the said one thousand dollars to be placed in a reliable bank in New York Oity, subject to the weekly order of said Nehemiah Merritt, and his receipts will be • the discharge for the above—and it is my desire that after the decease of my Son Nehemiah Merritt the Monies above named, Secured by Bond and Mortgage shall be divided share and share alike between my five daughters; if any one -of them should die without heirs, then her share to be divided among the others but subject to the provisions in my above named will and testament.”

The trustees under the will of testator have all died, and this action is brought by the executor of the will of Georgina Merritt to obtain instructions as to the disposition of a trust fund of $21,500 provided for in the clause of the codicil above quoted. This fund, it is understood, is now in the court of chancery, less certain expenses and losses, subject to be disposed of pursuant to the final decree herein.

The record shows that at the time of the death of Nehemiah Merritt, the life tenant, on November 12th, 1922, there were then surviving three children of Isabella Hawley, viz,, Alan R. Hawley, William Hawley, both of New York State, and Wilhelmina de Koning, of Holland. Subsequent to the death of Nehemiah Merritt, and on February 22d, 1923, William Hawley died a resident of New York, giving by will all his property to his brother Alan R. Hawley, also of New York.

The main question at issue it seems to me is as to whether or not the provisions of the will and codicil create a contingent remainder, or whether there was a vested remainder in the children, since deceased. It appears that the life tenant, Nehemiah Merritt, applied to the court of chancery to increase the corpus of the fund set aside for his benefit, so that he might be assured of the $1,000 per year to which he was entitled under the codicil, and this court directed the trustees to add a sum of $4,500 to $17,000 theretofore set aside in order to assure this.

This ease is Merritt v. Merritt, 43 N. J. Eq. 11, and 48 N. J. Eq. 1.

In the earlier case the chancellor held that the interest of Mrs. Hawley and her children were contingent remainders, saying, “Mrs. Hawley or her children will share in the principal of the fund if she or they shall survive Nehemiah. They have no interest in the annuity, the security of which is the object of this suit, but have merely a contingent interest in the fund which is to produce the annuity. He has the present enjoyment and use of the fund and they have a mere contingent remainder in it.”

This language, it seems to me, applies to the will and codicil, which should be construed together, except as the codicil modifies the provisions of the will itself.

The question has been presented as to whether the $4,500, which the court directed to be added to the fund of $17,000, should not revert and be considered as real estate and not personal property, and be distributed without regard to the provisions concerning Nehemiah’s trust fund.

I am of the opinion that the whole fund of $21,500 is subject to the provisions of the .will and codicil. I think, therefore, that the disposition of this trust fund should be as follows: One-third to Alan R. Hawley, individually; one-third to Alan R. Hawley, as executor of the will of-William Hawley, deceased, and one-third to- Wilhelmina de Koning.

I will advise a decree according to the above conclusion.


text:
    Charles Bressman et al., complainants, v. Sarah Retsky et al., defendants.
    [Decided May 14th, 1924.]
    1. Where a testator gave his wife a life interest in his estate, and in a later clause in the will directed her to divide all the property devised or bequeathed to her, or so much as may remain unexpended by her at her death, the wife has an implied power of sale over the estate devised or bequeathed to her
    2. Duncan v. Murphy, 92 N. J. Eg. 682, approved and followed.
    On bill, &e.

      Mr. Emanuel D. Lasher, for the complainants.

      Messrs. Stein, Stein & Hannoch and David E. Bernstein, for the defendants.
   Church, V. C.

This case practically involves the construction of a will and is a suit on counter-claim for specific performance. The complainants allege that one Regina Stemlicht, a predecessor in title of the defendants, neither owned nor had any power to convey a fee-simple in the premises in question. She acquired title through the will of her husband, who- died leaving a will, the fifth and six paragraphs of which are as follows :

“Fifth. I give, devise and bequeath to my beloved wife, Regina Stemlicht, all the rest, residue and remainder of my Estate, real and personal, wheresoever and whatsoever, of every kind and description to her own use during her natural life.
“Siatlh. I direct my -beloved wife to make a satisfactory arrangemént after her decease, that all the property hereby devised or bequeathed to her as aforesaid, or so much thereof as may then remain unexpended to divid the same between my Eamilie and her Eamilie share and share alike, or according her will.”

The question is whether, having given his wife a life interest in his estate, and then in the following clause having stated that “all the property hereby devised or bequeathed to her as aforesaid, or so- much thereof as may then remain unexpended to divid,” and so forth, this gives Regina Stemlicht implied power of sale ? I am satisfied that it does.

The evidence produced before me convinces me that the wido-w, Regina Stemlicht, was in actual need, and it was necessary for her to sell some part of her estate for her support and maintenance.

Under the cases, therefore, it appears to me that there is a clear power of sale implied by the terms of the will. Duncan v. Murphy, 92 N. J. Eq. 682. In this case the court of errors and appeals affirmed Vice-Chancellor Learning and adopted his opinion. The. vice-chancellor says: “The evidence at the hearing adequately disclosed that the life tenant at this time is too feeble to- work and is in positive need, and that the sale of the entire property is necessary for his maintenance. In these circumstances he should be permitted to sell the real and personal estate, to the end that the proceeds of sale may be applied to- his support.”

I think that this applies to the case at bar, and I will, therefore, advise the decree for specific performance.


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    Samuel Silverman, complainant, v. Rudolph L. Klussman, defendant.
    [Decided May 15th, 1924.]
    A court of equity will not set aside a deed eight years old, duly recorded, on the mere testimony of a man who says he advanced the purchase price, and that he made no inquiry or investigation as to the state of the title for eight years from the time that the property was purchased.
    On bill, &e.

      Mr. Saul N eraser, for the complainant.

      Mr. Frank W. Hastings, for the defendant.
   Church, V. C.

This is a bill to establish a resulting trust in regard to certain property in Jersey City.

The complainant contends that on or about November 3d, 1915, he paid to Charles W. Ostrom, a lawyer of Jersey City, half the purchase-money to acquire the property herein involved, with an agreement that he and Ostrom should each own a half interest in the property. He never knew the defendant, Klussman, and never saw him until this suit. Silverman says he did not procure the deed to be made to Klussman, or know of it, or consent that title be taken in the name of anyone .other than Ostrom or himself. He did not investigate or inquire until recently whether Ostrom had effected the purchase as agreed. Ostrom disappeared in, 1921. Klussman says that he took title to the property at the request of his sister, Anna B. Ostrom, then the wife of Charles Ostrom, and that she paid the purchase price, and that he agreed to hold the title for her use and benefit. The deed was promptly and properly recorded, and nothing was known of Silverman’s alleged connection with the property until very recently. Th.e matter, therefore^ seems to be very largely one o£ fact.

I can hardly believe that Mr. Silverman would have waited eight years before making any effort to investigate ox assert his alleged title. He himself says that, although he was at Camp Dix during the world war, he frequently came to Jersey City, but it never occurred to him to inquire of Ostrom about the property, and he made no effort to establish his claim until after Ostrom had disappeared. Ostrom would be the most important witness in the case, and his testimony, apparently, is unavailable. .

I believe that the .statement of Klussman is the true account of the transaction, and I do not think that a court of equity should set aside a deed eight years old on the mere testimony of a man who says he advanced .the purchase price. This would lead to great confusion as to titles, and inasmuch as the deed was properly recorded at the time it was made, and has stood unchallenged for eight years, I think that Silverman is in laches, and I shall advise a decree dismissing the bill.


text:
    Morris Scharff et al., complainants, v. Annattee Realty Company, defendant.
    [Decided May 23d, 1924.]
    One who owes interest on a bond secured by a mortgage must pay it when it is due to the person to whom it is due, and it is no sufficient excuse to say that he did not know that the bond and mortgage had been assigned by the mortgagee when he made no effort to pay the mortgagee, or to inquire from him whether or not he still held the mortgage.

      On bill, &c.

      Mr. George B. Astley and Messrs. Leber & Rviback, far the complainants.

      Mr. Charles C. Pilgrim and Mr. Frederic Rikger, for the defendant.
   Church, V. C.

The facts in this case are that one Herman sold a property to the defendant on which the complainant Newman held a certain mortgage in trust. Newman canceled his mortgage at the time'of the sale and took back in his own name another mortgage for $15,000, which is the mortgage in question. This mortgage was dated on the 1st day of February, 1923. It contained the usual default clauses. Six months’ interest became due on the 1st day of August, 1923. No offer or tender of interest was made until after the period of grace had expired.

It appears in .the testimony that an assignment was made to the complainant Morris Scharff, the assignment being dated the 31st day of July, 1923.

The question, it seems to me,, is only this: Did the defendant make a proper effort to pay the interest when it was due? The defendant says that it did not know anything about the assignment, but it also admits it did not go to Mr. Newman, who, according to the testimony of the witness for defendant, was the man to whom it should pay the interest, because, they say, it was unwilling to- pay the interest until Mr. Herman finished the house, which is on the property in controversy. I am of the opinion that the defendant was not justified in delaying the payment of interest to the one to whom it thought it was responsible.

The case of the Newark Trunk Co. v. Clark, 94 N. J. Eq. 79, is controlling in this case, as I see it.

I will therefore advise a decree in accordance with the prayer of the bill.