author: Walker, Chancellor.

text:
    Ruth Gruber, petitioner, v. William Gruber, defendant.
    [Decided November 27th, 1925.]
    When a man who contracts marriage is, and has been, suffering from epilepsy (a chronic disease of the nervous system, attended by brain deterioration, which is progressive, is congenital and likely to be transmitted by marriage and child-bearing, and is considered incurable), and represents to his prospective wife that he is in good health, had never been sick and had no occasion for a doctor, and within a short time after the marriage had epileptic fits, and his wife then, for the first time, discovered the disease with which he was afflicted, and straightaway left him, having had no knowledge of his condition at or before the time of the nuptials, the wife is entitled to have the marriage annulled for fraud, notwithstanding consummation.
    On petition for annulment of marriage. On final hearing on master’s report and depositions ex parie.

      Mr. Louis Ogust and Mr. Merritt Lane, for the petitioner.
   Walker, Chancellor.

The only question in this case is whether or not if defendant were afflicted with epilepsy at and before the time of his marriage to petitioner, knew it and represented to her that he had it not or concealed the fact from her, it was such a fraud as would entitle her to a decree annulling the marriage under the general equity jurisdiction of this court. It has been held that tuberculosis is such a cause. Davis v. Davis, 90 N. J. Eq. 158. Also syphilis. Crane v. Crane, 62 N. J. Eq. 21.

In Carris v. Carris, 24 N. J. Eq. 516, the court of errors and appeals held that the court of .chancery, under its general power to annul fraudulent contracts, has jurisdiction to annul contracts of marriage for sufficient fraud. And Vice-Chancellor Stevenson, in Ysern v. Horter, 91 N. J. Eq. 189 (at p. 198), observed that what is sufficient fraud remains, he thought, the subject of ascertainment in every ease brought before this court, in which the complaining spouse alleged his or her consent to the marriage, was induced by the defendant’s fraud.

To warrant the court in granting a decree for fraud, the fraud imposed upon the petitioner must be of a character affecting an essential of the marriage relation. Crane v. Crane, supra; Bolmer v. Edsall, 90 N. J. Eq. 299. It seems to me, upon reflection, that epilepsy falls within this doctrine as certainly as do syphilis and tuberculosis.

In the case at bar the proofs show that at the time of the marriage defendant was suffering from epilepsy; had been so suffering for a considerable period of time; had had an epileptic fit upon the public street two or three months prior to the marriage; represented to his prospective wife that he was in good health and had never been sick since he was a child and had had no occasion for a doctor; that within a very short time after the marriage he had an epileptic fit; had a second one, and his condition as an epileptic was then discovered by his wife, who straightaway left him; that she had no knowledge of his condition at or before the time of the marriage; that epilepsy is a chronic disease of the nervous system, attended by brain deterioration, which is progressive, is congenital, and likely to be transmitted by marriage and child-bearing, and is considered incurable.

In Gould v. Gould, 78 Conn. 242, it was held by the supreme court of errors in an action for divorce or a decree of nullity under the Connecticut statute, that one induced by fraudulent concealment to marry an epileptic, forbidden by that statute, is entitled to divorce on the ground of fraudulent contract, the court.observing, inter alia: “That epilepsy is a disease of a peculiarly serious and revolting character, tending to weaken mental force and often descending from parent to child or entailing upon the offspring of the sufferer some other grave form of nervous malady, is a matter of common knowledge of which courts of law will take judicial notice. * * * One mode of guarding against the perpetuation of epilepsy obviously is to forbid sexual intercourse with those afflicted by it and to preclude such opportunities for sexual intercourse as marriage furnishes.” And further on in the opinion, speaking of epileptics as a class of persons to whom their statute applied, the court said: “It is a class capable of endangering the health of families and adding greatly to the sum of human suffering.”

In McGill v. McGill, 163 N. Y. Supp. 462, it was held: “While there is danger of infection in association with a person afflicted with tuberculosis, which does not exist in the case of epilepsy, yet, so far as is apparent to the medical world at this time (1917), the danger of transmission of epilepsy to offspring is vastly greater than in the case of tuberculosis, and the chance of cure much less. This case (Sobol v. Sobol, 150 N. Y. Supp. 248) is interesting as extending the rule for annulment of marriage in the case of fraudulent concealment or statements to other than venereal diseases. * * * It is undoubtedly true that the fact that one party to a marriage has, at the time, a venereal disease, is abhorrent to every sense of justice and decency. It means the unchastity of the defendant, the pollution of the innocent victim, and means indecency on the part of the wretch who precipitates such a wrong upon the innocent person, who, in the fullness of her affection, yields her person to his embraces; yet, when we consider the comparative consequences, it would seem to be somewhat of a refined distinction of equitable principles to grant an annulment in the case of a person suffering from a disease described in the case cited (Anonymous, 49 N. Y. Supp. 331) as one of a less virulent character than syphilis, and refuse it to a person chained to an epileptic. Both should be freed from an alliance that has no possibility of happiness and almost a certainty of misery, not only to the parents, but, in the ease of epilepsy, to, at least, the second, and, probably, the third, generations.”

In this case (McGill v. McGill) it was held that a marriage contract will be annulled, there being no living children, for the fraudulent concealment by the woman before marriage of the fact that she had epilepsy, which is shown by the evidence to be incurable, to result in mental weakness, and, possibly, dangerous insanity, and which would probably affect the descendants for generations. This judgment was reversed in the appellate divisioii of the New York supreme court (S. C., 179 App. Div. 343), but only upon the ground that the finding by the court below that the plaintiff was induced to marry the defendant through deception, concealment and misrepresentation on defendant’s part, was against the weight of the evidence, and, moreover, that it was conclusively shown that plaintiff voluntarily cohabited with defendant as his wife with full knowledge of facts constituting the alleged fraud, and that precluded him from obtaining an annulment on that ground, which reversal was affirmed, without opinion, in the court of appeals. S. C., 226 N. Y. 673. Here was no overruling or modification of the supreme court’s decision in 163 N. Y. Supp. 462, that epilepsy is sufficient ground for anulling a marriage for fraud.

The reasoning of the Connecticut and Few York cases is, I think, on principle, quite parallel to our doctrine of annulment for tuberculosis and syphilis, and quite apposite in the case at bar.

It is true that we make a distinction between consummated and rmconsummated marriages in cases of nullity, &c. See Ysern v. Horter, supra. But in Carris v. Carris, supra, there was consummation of the marriage, nevertheless it was annulled for fraud, the husband having left his wife as soon as the fraud was discovered. In Crane v. Crane, supra, the parties were married in Jufy, 1893, and in May, 1894, the petitioner discovered that her husband was diseased and charged him with having syphilis, which he then acknowledged having had for fourteen years. Thereafter the wife ceased to have marital intercourse with him, but allowed him to remain in her house, in which they resided, and administered to his wants until his condition became so offensive that he was obliged to leave in October, 1896. So, here, there was consummation also. In Davis v. Davis, supra, which was an annulment for tuberculosis discovered by petitioner after marriage, there had been consummation, and, in fact, birth of issue, which died. In Daniele v. Margulies, 95 N. J. Eq. 9, there was an annulment for lunacy and unsoundness of mind discovered after marriage, notwithstanding consummation and the birth of issue, it being held that non-consummation is not an absolute prerequisite to nullity of marriage for fraud in all cases. And, as we have seen, it has not been considered an impediment to a decree in our state in cases of antinuptial incontinence (Carris v. Carris), syphilis (Crane v. Crane) and tuberculosis (Davis v. Davis). And in the Connecticut case of Gould v. Gould, and in the New York case of McGill v. McGill, consummation was present as in the case at bar.

The false representation in the case at bar consisted of defendant’s statement that he was in good health and had never been sick since he. was a child and had had no occasion for a doctor, when, in fact, he was, and for a considerable period of time had been, an epileptic. He suppressed the truth, even if he did not make an affirmative false representation as to the particular fact of epilepsy. And the fraud for which a marriage will be annulled may be either suggestio falsi or suppressio veri. Steerman v. Snow, 94 N. J. Eq. 9.

Being clearly of opinion that when a man who contracts marriage is, and has been, suffering from epilepsy (a chronic disease of the nervous system, attended by brain deterioration, which is progressive, is congenital and likely to be transmitted by marriage and child-bearing, and is considered incurable), represents to his prospective wife that he is in good health, had never been sick and had had no occasion for a doctor, and within a short time after the marriage had epileptic fits, and his wife then for the first time discovered the disease with which he was afflicted, and straightaway left him, having had no knowledge of his condition at or before the time of the nuptials, the wife is entitled to have the marriage annulled for fraud, notwithstanding consummation.

Decree nisi accordingly.


source: Caselaw Access Project

author: Lewis, V. C.

license: Public Domain

text:
    Pellegrino Cerino, complainant, v. Joseph Van Orden, defendant.
    [Decided June 24th, 1925.]
    A license to operate a jitney bus is personal to the licensee and one who claims to be the partner of the licensee without a transfer of the license, and a compliance with the requirements of the statute and ordinance applicable to the same has no right to demand an accounting of the profits of the business carried on under that license. In these circumstances equity will leave the parties where it finds them.
    On pleadings and proofs.

      Mr. 'William W. Evans, for the complainant.

      Mr. Emanuel Shavick, for the defendant.
   Lewis, V. C.

The undisputed facts indicate that the defendant possessed a permit to operate a jitney bus, granted by the governing body of the city of Paterson, known as permit No. 141. The permit authorized the operation of the jitney bus by the defendant between the city of Paterson and the borough of Prospect Park and Haledon. Complainant claims that by virtue of articles of agreement entered into on December 30th, 1922, between complainant and defendant, a copy of which is annexed to the bill, a partnership existed between the parties for the operation of the jitney bus business referred to, under the permit No. 141 held by the defendant. The property of the partnership is alleged to have consisted simply of this permit No. 141 and the jitney bus to which it applied. Defendant denied the right of the complainant to participate in the profits resulting from the operation of the bus, contending that the alleged partnership agreement never became operative or binding between them, and that the bus and the permit were both the property of the defendant individually, and that the business was operated by him in that same capacity. There is no evidence to show that the complainant made any specific contribution to the alleged partnership fund. The evidence further shows that no application was made to the governing body of the city of Paterson to have the permit USTo. 141 transferred to the partnership. If, therefore, any rights can be claimed under a partnership arrangement between the parties, it would present the situation of an application to this court to take an accounting between two partners with regard to partnership funds resulting from an illegal transaction The evidence shows, convincingly, that all the parties engaged in the formation of this arrangement regarded the situation pertaining to the use of the permit as one which must be kept secret, and concerning which no mention of the real situation should be included in the written documents pertaining to it.

It seems to me that the statute and the ordinance relating to the operation of these jitney buses contemplate that the governing body of the municipality shall exercise a supervisory control over their activities, and that the permits which are issued are personal to the one to whom the grant is given, and apply specifically to the bus to be operated under it. If the grantee of the permit could transfer it at will, or use it in conjunction with other persons by partnership or corporate arrangements among themselves, the whole purpose and object of the statute and the ordinance would be circumvented. This seems to have been the very thing which the parties sought to accomplish by their present arrangement.

I am therefore of the opinion that the complainant has no status to appeal to this court for an accounting between himself and his alleged- partner in such an arrangement. Equity, under such circumstances, will leave the parties where it finds them. Allfather v. Schlicher, 86 N. J. Eq. 1; E. & A. Somers v. Johnson, 70 N. J. Law 695; Church v. Muir, 33 N. J. Law 318; Paterson v. Sadler, 71 N. J. Eq. 315.

I will therefore advise a decree that the bill be dismissed.


author: Lewis, Y. C.

text:
    Alfred Weber, complainant, v. Aurelia Weber, defendant.
    [Decided September 23d, 1925.]
    Where A is not overly strong mentally, and B’s husband took advantage of his condition and his trustful nature in a business transaction, B, who was a co-principal with A in the original investment, is bound to account to A for all profits which she may have realized from the transaction, which was their joint venture.
    On bill, &c. On pleadings and proofs.

      Messrs. Perkins & Pre-wen, for the complainant.

      Mr. John Milton, for the defendant.
   Lewis, Y. C.

This is a bill to impress a trust upon a portion of the proceeds of the sale of certain real property located in Hudson county, New Jersey, and for an accounting. In the year 1911 the complainant’s father died, leaving as part of his estate the property mentioned. Complainant’s brother Erank, as administrator c. t. a. of his father’s estate, sold the property to Nagle, and Ihle, taking back as part of the purchase price a first mortgage of $8,500, dated April 29th, 1912. To complete that conveyance Nagle and Ihle borrowed the sum of $3,500 from the complainant and the defendant, the latter being the wife of the administrator aforesaid. Of this sum of $3,500, $1,000 was contributed by the complainant and $2,500 by the defendant. This loan was secured by a second mortgage on the said property, executed by Nagle and Ihle, the purchasers; but this mortgage was taken1 in the name of the defendant, Aurelia Weber, alone. Alfred Weber’s name did not appear as one of the mortgagees. In the execution and receipt of this second mortgage the said Erank Weber represented his wife, the defendant, and caused the mortgage to be executed in his wife’s name alone. In 1915 Nagle and Ihle conveyed the property to Walser, subject to the first and second mortgages referred to. Walser made default, and Erank Weber, as administrator as aforesaid, foreclosed against Walser, and also against the defendant, Aurelia Weber, his wife, as the mortgagee named in the second mortgage. On Eebruary 26th, 1918, a final decree was entered in the foreclosure proceedings in favor of the administrator in the sum of $9,148.84, and in favor of the defendant as mortgagee, on the second mortgage for $3,872.17. On the foreclosure sale the property was purchased by the defendant, she using in this purchase the decree in her favor on the second mortgage, and no other consideration appears to have heen passed upon the foreclosure sale. Following this purchase, however, the defendant executed a new mortgage to her husband, Erank Weber, as administrator as aforesaid, for the amount of his decree in the foreclosure proceedings. The defendant took title to the property in question from the sheriff on the foreclosure sale by deed dated May 22d, 1918. Title was taken in her name alone. On September 1st, 1921, defendant sold this property to Armstrong for $20,000, as follows: Cash, $2,500, subject to first mortgage $9,300, and second mortgage executed to defendant alone, $8,200, total $20,000. Subsequently, complainant accepted interest upon his investment of $1,000, and later on accepted payment of the principal sum, so invested by him, from defendant. Complainant now claims that in accepting said principal and interest, and in the executing of a release to defendant, he was misled as to the real situation by his brother Erank, who manipulated the whole transaction, and that defendant should, therefore, be decreed to pay to him the proportionate amount of the net proceeds of the joint adventure, based upon his original contribution with defendant, and that the defendant should account for the same, together with the rents, issues and profits accruing during the time that the .property was held by her.

It is contended that complainant is not overly strong mentally, and that defendant’s husband took advantage of the mental condition of complainant and his trustful nature in the transaction. I agree with this contention, and I am clear that the defendant, who was a co-principal with the complainant in the original investment, is bound to account to the complainant proportionately for all profits which she may have realized from the holding and sale of the property acquired through the application of the original mortgage held in her name as the joint property of complainant and defendant.

A decree for such an accounting may, therefore, be entered.


text:
    Creditors’ Holding Company, Incorporated, petitioner, v. Randolph Perkins, respondent.
    [Decided September 25th, 1925.]
    Evidence examined, and held that the counsel fee withheld by counsel in this matter was proper, and should be retained by him.
    On petition in summary proceedings.

      Messrs. Wall, Haight, Carey & Hartpence, for the petitioner.

      Mr. John Hrewen, for the respondent.
   Lewis, Y. C.

The question is, whether Randolph Perkins, a solicitor of this court, who received $7,011.00 under the decree of December 28th, 1914, as counsel fee, inclusive of all fees and costs, in the case of McClintic-Marshall Construction Co. v. The Board of Chosen Freeholders of the County of Hudson et al., 83 N. J. Eq. 539, has the right to retain the further sum of $7,030.60 from the $24,000 belonging to his clients under the termé of the decree for his personal compensation, disbursements and taxed costs.

Perkins, as the decree recites, was solicitor for William D. Waldo and also for Lindsay Russell, trustee in bankruptcy of Waldo, and for Clifford M. Tappen, trustee in bankruptcy of William E. Wyckoff. The suits in which he was solicitor were chancery suits to foreclose municipal liens against the county of Hudson.

On March 14th, 1911, he began to represent Waldo. On March 15th, 1911, he began to represent Wyckoff. On April 8th, 1911, Waldo assigned to Wyckoff all moneys due and to grow due under the contract named in the assignment. On January 15th, 1913, Waldo was adjudicated a bankrupt in the United States district court for the eastern district of New York. On February 14thj 1913, Wyckoff was adjudicated a bankrupt in the same court. Lindsey Russell became trustee in bankruptcy of Waldo, and Clifford M. Tappen became trustee in bankruptcy of William E. Wyckoff. The attorney of Waldo’s trustee in New York was Frank M. Patterson. The attorney of Wyckoff was August Kiendl.

On August 1st, 1913, the Creditors’ Holding Company, Inc., was organized to represent the creditors of Wyckoff.

The Creditors’ Holding Company purchased by bill of sale, which is in evidence, the assets of William E. Wyckoff, who was in bankruptcy.

During the progress of the trial in this court it turned out that before Waldo had filed his lien he had assigned his claim to Wyckoff, and after the introduction in evidence of the assignment made by Waldo to Wyckoff, Mr. Perkins secured the consent of all of the parties to the suit that Wyckoff might be considered a party, but no formal order was entered. On December 15th, 1919, the trustee in bankruptcy of Waldo executed a consent, pursuant to court order, to the payment to the Creditors’ Holding Company, Inc., of all moneys and accumulated interest thereon paid to Perkins in settlement of the claims of Waldo and Wyckoff against the Syracuse Brid'ge Company and the board of chosen freeholders of Hudson county; the date when the decree was signed was December 28th, 1914.

On January 17th, 1915, Perkins received $24,000, adjudged in that decree to be due to the trustees in bankruptcy of Waldo and Wyckoff, respectively, and received also the $7,011 ordered paid by that decree to Perkins, as solicitor for Waldo, Wyckoff and their trustees in bankruptcy.

Besides the $7,011 which Perkins obtained under the decree of December 28th, 1914, Perkins retained the further sum of $7,030.60 from the $.24,000 adjudged in the decree to be due to the trustees in bankruptcy of Waldo and Wyckoff.

Mr. Perkins claims that he retained this additional amount from the $24,000 because of the fact that he had a definite, positive arrangement between himself and Mr. Patterson, the trustee in bankruptcy of Waldo, that if Perkins could bring about the settlement of the whole litigation and realize out of the whole wreck $24,000 for the Waldo interests, Perkins was to have out of that $24,000 a fee of $5,000 and his disbursements, in addition to anything the court would allow him out of the fund. The fund belonged to the Syracuse Bridge Company, subject to the liens. When all the liens were paid, the balance of the money woiüd go to the Syracuse Bridge Company. Carlyle Garrison represented the Syracuse Bridge Company, and he, and, in fact, all of the solicitors, consented to' the final decree. Mr. Garrison testified that he had an agreement with the Syracuse Bridge Company that the money coming to the Syracuse Bridge Company would be paid to him as his fee, and that he agreed with Perkins that he would divide his (Garrison’s) fee equally with Perkins.

Mr. Perkins denies absolutely that he ever represented the Creditors’ Holding Company as solicitor or attorney, or in any other capacity, and denies its right to file this petition.

That question is not free from difficulties, as this is a proceeding which is highly penal and quasi-criminal, and it has been held in some states that it may not be resorted to by an assignee of the claim. 6 Corp. Jur. 713, and many cases cited; Crane v. Gurnee, 75 N. J. Eq. 104; Lynde v. Lynde, 64 N. J. Eq. 736; Strong v. Mundy, 52 N. J. Eq. 834; Tate v. Field, 60 N. J. Eq. 42. Also, see 2 Decen. Dig. ("Attorney and Client") § 126.

On March 31st, 1915, Perkins wrote to Prank M. Patterson, the attorney of Waldo’s trustee in bankruptcy, and to Oscar W. Swift, the attorney of the Creditors’ Holding Company, Inc. This letter states that he has gone over the viaduct cases with a great deal of care, and “in order that both of you gentlemen may be informed of the situation, I am giving you a brief summary of the matter from its inception down to the present time.” The letter then reviews the litigation, setting forth the amounts received by the parties in interest under the decree, and the letter goes on to say, “the balance of the fund being consumed in court expenses and fees.” The letter also says: “I was authorized to settle the Waldo and Wyckoif claim for $24,000, with the understanding that my fee would be $5,000, in addition to my actual disbursements and taxed costs.”

This letter does not state the amount received by Perkins, $7,011, but says: “As you gentlemen will undoubtedly observe, I have spent a great deal of time on this case running over a period of upwards of four years. Prom the very inception of the matter I never received any money for my services. If I were unsuccessful in making final collections I suppose I never would have received any compensation. Having been successful in obtaining a settlement as above related, I think a fee of $5,000 small under the circumstances, but having agreed upon that figure, of course, I abide by it.”

The arrangement that Mr. Perkins claimed was existing as to his fee differs somewhat from his testimony in this respect, that in his testimony he says that he was to have, in addition, any sum the court would allow; but he has explained that to the satisfaction of the court, and I think that Mr. Perkins must prevail, and that will be the order.


text:
    Commercial Trust Company, executor and trustee of the last will and testament of Clara Heintz Johnson, deceased, complainant, v. Charles Heintz et al., defendants.
    [Decided November 9th, 1925.
    Med November 17th, 1925.]
    Where a testatrix) left in her will a large number of bequests to relatives, and in two clauses of her will named as legatee one Jennie Hartman, there being no relative of hers by that name, the whole scheme of the will indicates that the testatrix meant to name Johanna Hartman as her legatee, and not Jennie Heintz, who was no blood relation, and whose husband and son (being relatives) were named in the will as legatees.
    On pleadings and proofs.

      Messrs. Fislc & Fish, for the complainant.

      Messrs. Perhins .<& Prewin, for the twenty-three defendants.

      Mr. John Milion, for the defendants Eerdinand and Teddy Heintz.

      Mr. Marshall Van Winkle, for the defendant Christ Hospital.
   Lewis, V. C.

The bill in this case is filed by complainant for the construction of the will of Clara Heintz Johnson, who died October 24th, 1925. She was divorced from her husband, and had had some litigation before me over an alleged agreement for his support, which he charged she had made. She left no children, but made a large number of bequests. The bill is somewhat ambiguous with respect to some of them, but after the taking of testimony and hearing argument a decree was advised which was practically agreed upon by all the solicitors then appearing before me.

I have just been advised that from this decree an appeal has been taken by Jennie Heintz, who- is represented by Hugo Werner, Esq.

In clauses designated 3 and 20 of the testatrix’s will she names one Jennie Hartman. Eor convenience, these two paragraphs are set forth herewith:

“Third. I give, devise and bequeath to my executor and trustee hereinafter named, in trust, all the real and personal estate owned by me, and the real estate located by street number 549-551-553-555 Pavonia avenue, Jersey City, N. J., the same to be held for the following reasons and purposes. I direct my executor and trustee hereinafter named, to sell the said real property located on Pavonia avenue, Jersey City, N. ,T., and personal estate, and out of the sum realized from the sale of my real property located on Pavonia avenue and also the property known as numbers 14 to 19 and 45 to 49, inclusive, block 1603 and 1602 Broadway, Jersey 'City, N. J. I do direct that the same go to and be divided by my said executor and trustee among the following person or persons in equal shares: To Charles Heintz, Mary Heintz, Clara Heintz, Adeline Adelaide Heintz, Ferdinand Heintz, Jennie Hartman, Bertha Hartman, Gus Hartman, Beatrice Hartman, Marie Hartman, Bertha Kerrig, Liddy Devender and William and Ida Schwartz, to them, their heirs and assigns forever.”
“Twentieth. All the rest, residue and remainder of my estate, both real and personal, I do give and bequeath to my executor and trustee hereinafter named, or the survivor, in trust nevertheless, after paying all debts, legacies and testamentary charges, fees and commissions, taxes and other things as herein provided, I direct my said executors to collect the principal of any stocks, bonds, mortgages and other securities, and to reinvest the same from time to time as may be necessary; to foreclose any mortgage or other investments, and buy any mortgaged property that may be necessary for that purpose, and to resell the same, and to resell any other security from time to time as may be necessary, and to collect the income from my estate which may remain, as aforesaid. And I do direct my executor and trustee, after settling my said estate, to pay to the following-named persons— Charlie Heintz, Mary Heintz, Clara Heintz, Adeline Heintz, Adelaide Heintz, Ferdinand Heintz, and to Jennie Hartman, Bertha Hartman, Beatrice Hartman, Gus Hartman and Marie Hartman, and to Bertha Kerrigan, William Schwarts and Ida Schwarts, first the income of my estate, and after that shall have been used, my said executors and trustee hereinafter named, or the survivor, shall use such part of the principal, from time to time, at not less than six months apart, the purpose of creating this fund is for the purpose of having my relatives have a fund upon which to draw in equal shares therefrom each six months until the income and principal oí my said estate shall have been paid by my said executors and trustees, to said persons above named.”

There is no relative by the name of Jennie Hartman, and Jennie Heintz claims she was the one intended. There is a Johanna Hartman, a blood relative; she is an infant defective, and cannot talk. She, of course, appeared by guardian. Jennie Heintz is the wife of Ferdinand Heintz, a cousin of the testatrix, and no intimacy between her and the testatrix was shown.

It appears throughout the will that the testatrix generally remembered the surnames of her relatives, but was not correct in some instances about their Christian name.

There were some errors in spelling, and one or two instances where the marriage names were omitted. There is no misspelling of the name Heintz, however, and it is not likely that she would have done this, as the testatrix’s own name was Clara Heintz Johnson. Heintz was her maiden name.

Under the rule admitting proof to idehtify a legatee, some testimony came from the lips of a Mrs. Smith who lived next door to the testatrix, to the effect that she had been told by the latter that the name Jennie Hartman had been placed in her will instead of Jennie Heintz. This evidence I did not find satisfactory, as the witness, in one part of her evidence, speaks of a will that had been executed, and later says that it had not been drawn by Mr. Cutley at the time of the conversation. Moreover, the testatrix could have made any corrections desired in her will, as she lived almost one week after its date.

The testimony of Mr. Kandolph Perkins, who represented Mrs. Johnson in her lifetime and was her counsel, is to the effect that she had spoken to him about making a will, and he had advised her to leave her property to relatives, and she said she would. This she did, making what appears to be an eqiritable distribution of her estate. Jennie Heintz, as before stated, was not a blood relative, but testatrix did not forget Ferdinand Heintz, the husband of Jennie Heintz, and Teddy Heintz, the son of Jennie Heintz, both blood relatives, and both beneficiaries under her will,

It is my opinion, from a consideration of the testimony, the will, and the expressed intention of the testatrix to benefit her relatives, that Jennie Hartman, named in the clauses above set forth, was intended to be Johanna Hartman.


author: Lewis, V. C. '

text:
    Thomas Pappas, Charles A. Grish and George W. Conklin, complainants, v. Aaron Meyer, John Quigley, building inspector of Paterson, and city of Paterson, a municipal corporation, defendants.
    [Decided November 6th, 1925.]
    1. Where material facts relied on in support of a complainant’s claim for relief are denied and disputed under oath, preliminary restraint, ordinarily, will be denied, nor will an injunction be granted when the injury complained of is slight compared to the inconvenience to the defendants and the public that would result from the granting of an injunction.
    2. This court at the outset should not restrain municipal officers when they are proceeding lawfully in the discharge of their duties.
    3. Where a municipal building inspector pronounced' a building in a city unsafe, and, on application of the owner for an injunction, it appeared that the evidence offered by the building inspector as to the dangerous character of the building -greatly outweighed the proofs offered by the owner, the building inspector and the police should not be enjoined from preventing the use and occupation of the building while in an unsafe condition.
    On bill, &C.

      Mr. Alexander McLeod, Mr. John W. Harding and Mr. Edward F. Merrey, for the complainants.

      Messrs. McOran & Pomfrei and Mr. William B. Gourley, for the defendants.
   Lewis, V. C. '

The hearing in this case was upon application for a preliminary injunction restraining John Quigley, building inspector of the city of Paterson, and Aaron Meyer, the owner of the building at the corner of Market and Clark streets, Paterson, from in any way interfering with the possession, use and occupation of the premises leased by the complainants from Aaron Meyer. A rule to show cause was issued, and a temporary restraint granted until the return day. Adjournments were had owing to the death of one of the defendant’s solicitors, the late Attorney-General McCran.

The building inspector of the city of Paterson, on July 21st, 1925, gave notice to the complainants, and also to the owner of the building, that the building was unsafe and dangerous to property, life and limb, and that it must be made safe. Later, the police, acting under instructions of the building inspector, informed the complainants that they must vacate the building at once, and since August 4th, 1925, the complainants have ceased to do business in the premises. It has been suggested that there was some irregularity by the inspector in this proceeding, but it is not for equity to determine this now. Such proceedings must stand until set aside by a legal tribunal.

Complainants claim that they have made internal improvements in the building in view of their leasehold interest, and that their business is profitable, but the defendant Meyer says that one of the complainants, Pappas, immediately preceding the commencement of this suit, informed him that his furnishings and equipment are and for some, time past have been heavily mortgaged, and that he has been unable to pay off his debts because his business has been so bad.

Voluminous affidavits were read before me and extensive arguments made by counsel on both sides. The complainants acknowledge that the building is not in proper condition, but claim that it can be made safe by certain repairs, which will not destroy their leasehold interests, and that the danger of its falling over is not immediate. It is urged that the means suggested by the complainants' experts would result in the interference with the possession of the tenants occupying the first floor, while those advised by the defendants would result in the interference with the tenants occupying the second floor. The owners will, of course, lose rental, it would appear in any event, whichever course is pursued. The equities are somewhat balanced.

Complainants produced affidavits from Frank Worthington, a consulting engineer of the city of Paterson, who has been engaged in such business since 1905, being for about three and one-half years with Samuel 0. Miller, of Columbia University, in his private practice, and Henry B. Crosby, an architect of the same place, who has carried on his business since 1902, and who has supervised the erection of many buildings. They say that they do not consider there is immediate danger, although the building must receive attention at once, as the east and west walls incline towards the east, but that it can be made safe by rebuilding the west wall, and then by jacking up the east wall and the columns back into their proper lines.

Aaron Meyer, the owner of the building, tenders himself willing to make the changes in the building which will put it in safe condition, and has also sought the advice of skilled and experienced men as to the best course to be pursued in carrying out the directions of the building inspector.

No proof of fraud on the part of the owner and the building inspector is produced, but the complainants object to the removal of the second story, which is occupied by them as a billiard and pool parlor.

The building has been standing some years, but the owner, who is an aged man, claims that the fact that it was in unsafe condition was first imparted to him when he had notice from,the building inspector in July, 1925. He is a resident of Newark, and further swears that he has had no occasion to visit the premises frequently, and has not been active in business in Paterson.

The defendant produced affidavits from the late William T. Fanning, an architect of the city of Paterson, who has supervised the building of many of the public buildings and numerous public schools and other institutions; James E. Torry, a structural engineer of John W. Ferguson Company of Paterson; William L. Platt, president and general manager of William L. Platt Construction Company of the city of Paterson, and Charles H. Gilmour, president-treasurer, Gilmour Brothers, general masons, contractors and builders of the city of Paterson; Henry Stam, superintendent of construction for six years of P. S. Van Kirk Company of Paterson, and Joseph Samworth, general superintendent of construction for the John W. Ferguson Company.

These men are leaders in their business and profession in this locality, and they are all agreed that the building is unsafe and in a very dangerous condition, and that this dangerous condition is aggravated by the fact that the second floor is used as a pool and billiard parlor, and because of the dead load of the tables and the live load caused by persons walking around the tables and congregating on the floors. They disagree with the remedy suggested by Messrs. Crosby and Worthington as to the means of putting the building in safe condition, and state that their suggestions are highly impractical and would be a dangerous operation, and that no repair work as suggested by them will accomplish the result. Furthermore, they are all' agreed that the most practical way to render the present structure safe and secure is to remove the second story, as a result of which the lower portion of the side walls would not have any weight or load to cany.

'The proofs presented by the defendants greatly outweigh those offered by the complainants, and the general rule is that, when material facts relied on in support of complainants’ claim for relief are denied and disputed under oath, preliminary restraint ordinarily will be denied.

The building in question stands on a conspicuous corner in the city of Paterson, on Market and Clark streets, and hundreds of people and vehicles pass it daily.

It is well settled that “an injunction will not be granted when the injury complained of is slight compared to the inconvenience to the defendants and the public that would result from the injunction.”

One not expert, viewing the building, will readily observe that the west wall is several inches out of plumb, and that the east wall is also out of plumb. 'It is said in the affidavits that the west wall is eleven and three-tenths inches out of plumb in its own height, and that the east wall is also out of plumb to an extent in one place of about seven and seven-eighths inches at its height.

After a careful consideration of the proofs, I do not feel justified in granting a preliminary injunction. Preliminary restraint should not be ordered unless upon the pressure of urgent necessity. There must evidently be a change in the building to render it safe. This court should not at the outset restrain municipal officers when they are proceeding lawfully in the discharge of their duties.

A preliminary injunction is denied.


text:
    Thomas Sardo, complainant, v. Fidelity and Deposit Company of Maryland, defendant.
    [Decided November 16th, 1925.]
    1. When one of two innocent parties must suffer from the fraud of a third person, the loss ordinarily falls upon the one whose act enabled such fraud to be committed.
    2. Accepting and retaining the benefit obtained by a principal under an authorized contract of his agent with full knowledge, may he held to be a ratification by the principal of the act of his agent, the presumption being that the agent has communicated the facts of the plaintiff’s order to the principal.

      3. Where A applied to an agent of an insurance company to issue a policy on his money and jewelry, which agent communicated the application to his principal, and a policy is issued covering (by mistake) money and securities, which policy is accepted by A, supposing that it complied with his application, and A paid the premium thereon, the policy should be ■reformed to express the real intention of A and the agent to cover money and jewelry.
    On bill for reformation.' On pleadings and proofs.

      Mr. Benjamin L. Stein and Messrs. Ward & McGinnis, for the complainant.

      Messrs. Wall, Haight, Carey <§ Hartpence, for the defendant.
   Lewis, Y. C.

The facts in this case are as follows: Thomas Sardo, the complainant, went to his broker, Mr. Lederer, and told him he wanted to insure his mone}’ and jewelry. Lederer then took him to Mr. Newman, a soliciting agent of the Fidelity and Deposit Company of Maryland, the defendant. They told Newman that they wanted a policy of insurance on the money and jewelry of the complainant. Newman said he would communicate with his company in Newark and find out what could be done, because he had no authority himself to write-a policy. Newman then sent a written application to the office of the insurance company in Newark. That application was not produced in evidence. Mr. Brush, who is now the general agent in charge of the Newark offide, went down to Paterson to look through the store of Sardo. He entered the store and saw the jewelry in the place. Hpon examination, Brush admitted that there were no securities in the store of Sardo, the complainant, and that all he had 'there was jewelry. He admitted that the complainant, Sardo, had nothing to insure except jewelry, so far as he observed. He then returned to Newark and telephoned to Newman that the company would issue a policy covering money and securities only, and a policy covering money and securities was after-wards sent to Newman for counter-signature and delivery to the assured. Newman said that he glanced at the policy and saw that it covered money and securities only, but that he interpreted it in his own mind to also cover jewelry. He thereupon handed it to Sardo’s broker, Mr. Lederer, who, in turn, delivered it to Sardo. Neither Sardo nor his broker read the policy. Prior to the expiration of that policy a robbery occurred and a large amount of jewelry was stolen from Sardo’s place of business. About a month after the robbery the policy was renewed in the same form. Sardo says that he did not read the second policy, and that the first that he knew that he was not covered for money and jewelry was when the defendant filed an answer, some months later, in an action at law, commenced by Sardo against the insurance company for the payment of the policy, 'which set up as a defense that the policy did not cover money and jewelry, but that it covered money and securities only. Thereupon, the present bill w^as filed in this court for the reformation of the. policy on the ground of mutual mistake, the bill averring that it was the intention of both complainant and defendant that a policy was to be issued insuring Sardo against loss of money and jewelry, but that through mistake the policy was issued to cover money and securities, instead of money and jewrelry. The insurance company denies that there was any mistake, and asserts that it specifically refused to cover jewelry, and intended to issue the policy which was issued, namely, to cover money and securities, and that there was no mutual mistake.

The bill contains no allegation of fraud, nor is that issue raised by the pleadings and proofs.

The policy of insurance was issued by the defendant on June 13th, 1923, for one year, and was designated as “Messenger and Office Robbery Policy, No. M-6111250,” insuring against loss of “money and securities.” The premium, amounting to $4-0, was paid by the assured. The jevrelry of which the store wras robbed is alleged to be of the value of $9,000, which was $1,000 in excess of the insurance under the policy referred to.

The theory of mutual mistake upon which complainant appears to base his claim for relief is, that .the complainant contracted with Mellor Newman for the issuance of a holdup policy on his jewelry shop, and that Newman was conceitedly the agent of the defendant, and that this is shown by letterheads and cards given by the defendant to him, Newman, in which he is termed their agent. Complainant further contends that it is proved by letters received by Mr. Newman in the course of his business, one of which accompanied the policy issued to complainant, and called for Mr. Newman’s counter-signature, that Mr. Newman was clothed with apparent authority to act for the company; that as agent he contracted'with the complainant, and that the defendant attempted to take the benefit of that contract by writing up the policy for complainant; hence, that the act of Mellor Newman was the act of the corporation, if done within his authority, or the apparent scope of his authority, and that it follows that there was a mutual mistake.

The ordinary layman is not a trained lawyer nor an insurance expert. That was decided in the ease of Radawansky v. Scottish Union Insurance Co., 126 Atl. Rep. 657.

The next proposition is, that the doctrine of caveat emplor does not apply to insurance. That was decided by "Vice-Chancellor Lane in the case of Giammares v. Allemenia Fire Insurance Co., 91 N. J. Eq. 114.

Now, a man is not debarred from relief merely because he does not read the policy, and in this case the evidence is that the complainant was an ignorant man, and that he relied upon the representations of his broker and the agent of the company that the policy which would be delivered would be that which he ordered. And it is admitted by the agent of the company that he understood the order, and that the policy ordered was a policy to protect the jewelry and not the securities. The evidence further shows that, in compliance with the complainant’s order, the agent of the company communicated with the general agent of the defendant. Tn the absence of any proof to the contrary, the presumption is that the agent of the company in the performance of his duty to his principal did communicate the kind of a policy that the complainant ordered. The evidence shows that shortly after the order was given the general agent of the company called upon the complainant and inspected the stock of merchandise of the complainant, and that at no time, either prior or subsequent to the delivery of the policy, did the general agent of the company, either by word or conduct, indicate that the policy to be delivered or actually delivered was different from the policy ordered.

Tn view of these facts the complainant had a right to expect that the defendant would issue to him a policy which he had ordered, and he had the further right to rely upon the fact that the policy which was delivered to him was, in fact, the policy which he had ordered.

It further appears that, notwithstanding complainant’s claim, that he had been misled by the agent of the company, and that the policy issued was not the one he ordered, the eompanji, nevertheless, retained the premium and has at no time made anjr offer to return the same. So, that, even assuming that the company was perfectly innocent in the matter, its retention of the premium under these circumstances, and with knowledge of these facts, operated as an estoppel, and as a ratification. The principal cannot retain the benefits of the agent’s acts even though it was unauthorized, and at the same time disclaim liability.

The situation herein disclosed in some respects resembles the situation in the case of Commercial Assurance Co. v. New Jersey Rubber Co., 61 N. J. Eq. 446. In that case Vice-Chancellor Emery held that, in equity as well as at law, the retention of the pro rala proportion of the premium, as on a valid policy, is an affirmance of the validity of the policy. This case was one to reform a fire policy and to enjoin an action at law, and also to restrain an action at law on the policy. It was claimed by the insurer that the poliejr was void because of cancellation, but the court held that, notwithstanding such cancellation, the retention of the unearned premium by the company was an affirmance of the policy.

Applying the principle in that case to the instant case, the contention of the insurance company that there was no policy in force, for the reason that the minds of the parties did not meet, with knowledge of all the facts, estops them from asserting the defense of “nudum pactum.”

It is well established that, where one of two innocent parties must suffer from the fraud of a third person, the loss ordinarily falls upon the one whose act enables such fraud to be committed. 27 Corp. Jur. 10.

That the presumption is that the agent has communicated the facts of plaintiff’s order to the principal is sustained by Story on Agency.

Accepting and retaining the benefit obtained by a principal under an unauthorized contract of the agent, with full knowledge, may be held to be a ratification. Dunston Lithograph Co. v. Borgo, 87 Atl. Rep. 334.

There is no doubt in my mind that Sardo, Lederer and Newman all believed that the policy of insurance was to cover the jewelry in the store. They all agreed on that. Their testimony was very positive and very convincing to the mind of the court. The story told by Mr. Brush seems to be rather incredible, that the company was willing to insure money and securities to the amount of $8,000, without actually. knowing what money and securities he had. Certainly, money and securities are much more easily handled than jewelry. The only serious question remaining in my mind is, whether Sardo was bound to discover from a reading of the policy that it did not cover his jewelry, and I am'of the opinion that the fact that he did not discover, by the reading of the policy, that it did not so cover the jewelry, is not fatal to his case.

The prayer of the bill will therefore be granted, and the policy will be reformed in accordance with the prayer. I will so advise. .


author: Backes, Y. C.

text:
    Harry Halpern et ux., complainants, v. Joseph Shurkin, defendant.
    [Decided June 10th, 1925.]
    1. A contract in writing for the sale of land, modified as to mode of performance, by parol, cannot be enforced, being within the statute of frauds.
    2. A contract for the sale of land, orally modified as to mode of performance, is enforcible if the substituted parol agreement is actually executed.
    On bill, &c.

      Mr. Medium E. Berger, for the complainants.

      Mr. Edward K. McGlynn, for the defendant.
   Backes, Y. C.

The bill is to compel the defendant to perform his contract, in writing, with the complainants, to buy three adjoining apartment-houses in Newark. The defendant agreed to pay for them $67,000 by assuming a building and loan mortgage of $14,000 on each apartment-house, a second mortgage of $4,000 on each house, pay $9,000 in cash, and give his one-year bond for $4-,000 for the balance, secured by a mortgage on the premises. The complainants did not at the time own the property, but had a contract to buy, and were to convey it to the defendant subject to the mortgages, which they were to negotiate. They were able to effect building and loan mortgages for only $13,000. At the hearing they claimed that the defendant had verbally agreed, when it was found that the building and loan association would lend only $13,000 on each apartment-house, to make up the difference by his three $1,000 bonds, each secured by a mortgage on an apartment-house, upon the terms of a building and loan mortgage-As to this the testimony is in sharp conflict, but the issue need not be decided; the judgment rests upon a point of law.

The parol variation is within the fifth section of the statute of frauds, which provides that no action shall be brought on a contract for the sale of land unless it, or a memorandum thereof, be in writing. Comp. Slat. p. 8612. A written contract for the sale of land, with parol modification, will not, against objection, be enforced as modified. 25 R. C. L. 708, and cases. An instructive discussion of the subject, and a collection of the authorities, may be found in the note to Bonicamp v. Starbuck, L. R. A. 1917 B. 141; Brooks v. Wheelock, 28 Mass. 438.

The complainants, admitting the rule, contend, however, that the oral modification relates, not to the contract, but to its performance, to which, they argue, the statute does not apply. The statute requires that all the essential terms of a contract for the sale of land, be reduced to writing to qualify it for enforcement by the courts (Schenck v. Spring Lake Beach Improvement Co., 47 N. J. Eq. 44), and the terms of performance is, of course, an essential. An executory parole agreement substituting methods of performance is within the statute and unenforcible. Malkan v. Hemming, 82 Conn. 293; Rucker v. Harrington, 52 Mo. App. 481; Abell v. Munson, 18 Mich. 306.

A substituted performance agreed upon by parol, actually and fully executed, may be set up in defense at law in a suit on a written contract within the statute of frauds. Long v. Hartwell, 34 N. J. Law 116. And at law a parol variation of the mode of performance of a written contract within the statute of frauds is held in Cummings v. Arnold, 3 Metc. 486, to be a defense, if willingness to perform, thwarted by the plaintiff, is shown. The Massachusetts case, which was followed in Stearn v. Hall, 9 Cush. 31, relied on Cuff v. Penn, 1 M. & S. 21, which was a case of forbearance by the plaintiff of performance by the defendant, not within the statute. Stead v. Dawber, 2 P. & D. 447; Marshall v. Lynn, 6 M. & W. 109; Ogle v. Vane, 3 L. R. Q. B. 272; Tyers v. Rosedale, L. B. 10 Ex. 195; and in this state, Stryker v. Vanderbilt, 25 N. J. Law 482, and Nissel v. Swinley, 76 N. J. Law 288. Note, also, that in McCombs v. McKenna, 2 Watts & S. 216, cited in the Cummings Case, the substituted parol agreement was executed. Equity will enforce a parol variation of a written contract for the sale of land, executed and completed, as it does an unwritten contract wholly or partly performed by the complaining party, by refusing to allow the statute of frauds to be used to perpetuate a fraud. Wirtz v. Guthrie, 81 N. J. Eq. 271; Welsh v. McIntosh, 89 Kan. 47. And, so, ■although equity will not enforce a written contract with parol modification, at the instance of the complainant, it will decree the performance of the written contract if he accepts the modifications verbally agreed upon, set up by the defense. Wallace v. Brown, 10 N. J. Eq. 308; Ryno v. Darby, 20 N. J. Eq. 231; Oakey v. Cook, 41 N. J. Eq. 350; Parker v. Johnson, 4 All. 259; Martin v. Pycroft, 22 Eng. Rul. Cas. 852. The difference in refusing oral testimony to vary a written contract, in enforcing it and admitting it in defense, rests, fundamentally, on the language of the statute “that no action shall be brought.” The soundness of the doctrine has been much doubted. See note to Martin v. Pycroft, supra. None of the cases examined, at law or in equity, even intimate that a verbal agreement for substituted performance of a contract within the statute of frauds, unexecuted, can form a basis of a recovery.

The complainants also contend that the defendant is es-topped from setting up the statute because he acquiesced in the complainants effecting the building- and loan and other mortgages in preparation of performance of the agreement as verbally modified, relying on Church v. Florence Iron Works, 45 N. J. Law 129. Whatever was done by the complainants was as well for their own accommodation and advantage, although the mortgages may have been in sums and apportioned to meet the deal with the defendant. They did not change their position to their disadvantage. The male complainant is a real estate operator whose interests are best served by borroAviug on xeal estate as much as the traffic will stand.

This decision is on the ease as made at the hearing and presented by the briefs. The bill malíes out a different case. It alleges that the complainants were to convey the three apartment-houses subject to three building and loan mortgages, each in amount not exceeding $14,000, and three mortgages ■of $4,000 each, which the defendant was to assume, -and to pay $9,000 in cash and give a purchase mortgage for the balance of contract price of $67,000. The answer admits, perhaps inadvertently, the contract as alleged. The contract pleaded is not open to the defense interposed at the trial and uoav upheld. The complainants, will amend the Dill to conform to the Avritten contract by striking out “not exceeding,” or the defendant may amend his answer denying the contract as alleged. Thereupon the bill will be dismissed.


text:
    Frank G. Welles et al., complainants, v. Karl Schaffer, defendant.
    [Decided June 10th, 1925.]
    1. A defective and void or ineffective tax' collector’s certificate of sale cannot be attacked on a bill to redeem. If voidable, the remedy is by certiorari; if void, by ejectment, bill to remove the cloud, or bill to quiet title.
    2. A bill to redeem property from a tax sale proceeds upon the assumption that the purchaser has a valid, inchoate, but defeasible, title by virtue of the tax certificate, and the only issue which the court can entertain and decide is whether the right to redeem is open to the complainant, and, if so, to decree redemption.
    3. The statutory presumption of the truth of the affidavit of statutory service, by mailing the notice to redeem, is not overcome by the testimony of the addressee of the notice, that he did not receive it.

      4. A notice calling on the owner to redeem more land than sold for taxes is fatal. Courts will seize upon the slightest flaw of substance, in tax sales, to restore the property to the owner.
    On bill, &c.

      Mr. Abe J. David and Messrs. Siamler, Siamler & Koestler, for the complainants.

      Messrs. Mulligan & Koenig and Messrs. Pitney, Hardin & Skinner, for the defendant.
   Backes, Y. C.

The bill is filed to redeem lands from tax sales. One of the complainants was the owner of the fee, and the other three held mortgage and judgment liens, at the time of the sales. On October 11th, 1917, the collector of the borough of Rosselle sold the lands, in fee, in three groups or blocks, for the taxes of 1916; one group to the defendant, Schaffer, the other two to one Wiltsie, who assigned to Schaffer. On April 3d, 1923, Schaffer filed and recorded in the office of the register of deeds of Union county the tax collector’s certificates of sales, the assignment to him by Wiltsie, his affidavits of inquiry, and of mailing on April 8th, 1922, of notices to the complainants td redeem, a eop3r of the notice, and his affidavit of their failure to redeem, all annexed, and all in due form as required b^r section 59 of the General Tax act of 1903 {Comp. Stat. p. 5138), and no question is raised as to their sufficiency, save in the things hereafter pointed out..

It is set up that the certificates are void because — (a) they fail to state that there was no bidder for a term less than a term in fee. Fairfield Dairy Co. v. Pier, 80 N. J. Law 649. (b) Two of them failed to sufficiently identify the property sold, the description being “parts of lots,” which parts not being stated, (c) They have no seal of the collector attached. Comp. Siat. 1540 § 20a. These defects cannot be considered on a bill to redeem from a purchaser. If the certificates are defective and void of ineffective, there is nothing to redeem. The purchaser’s title rests .on the certificate, and recording of it gives him the right of possession to the land. Section 56. An attack on the certificates must be made in some other mode. If voidable, by certiorarij if void, by ejectment, bill to remove the cloud, or bill to quiet title. A bill to redeem proceeds upon the assumption that the purchaser has a valid, inchoate but defeasible title by virtue of the certificate, and the only issue which the court can entertain and decide is whether the right to redeem is still open to the complainants, they not having redeemed within sixty days after statutory service of notice to do so, and, if so, to decree redemption. Nugent v. Hayes, 94 N. J. Eq. 305; Milmoe v. Zimmerman, 95 N. J. Eq. 85; affirmed, 97 N. J. Eq. 326.

To maintain that they are not barred, the complainants contend that in foreclosing the right to redeem the defendant, Schaffer, failed to comply, in numerous respects, with the requirements of the Tax Sale Revision act of 1918 (at p. 88S). The sale having been made under the act of 1903, the proceedings to foreclose were properly taken under that act. Moore Security Co. v. O. J. Hammel Co., 3 N. J. Adv. R. 128; 97 N. J. Eq. 292.

The only meritorious question raised is that Schaffer did not mail the notices to redeem. In the affidavits annexed to the certificates and filed and recorded therewith, he affirms he did, giving the particulars, in all manner conformable to the statute. Three of the complainants swear they did not receive the notices, although their post office addresses were as stated in the affidavit of service. What they say is not necessarily inconsistent with Schaffer’s affidavit that he mailed them. Their denials that they received the notices, coupled with the presumption that a letter mailed reaches its destination (1 Wigm. Ev. § 95), would, without more, justify the inference that they were not mailed, but Schaffer, at the trial, gave persuasive testimony that the notices were posted. ITe, apparently, had no independent recollection of having done so, but testified from memoranda made at the timei which disclosed, even to the hour, the manner of mailing. He also produced numerous letters showing that he had made diligent inquiry for the addresses of the parties entitled to notice. This effort, of which the proof is not questioned, makes strongly for the truth of his story that he mailed the notices. On the other hand, the complainant Welles seems to have concerned himself much about the land or the taxes after 1913, when he had some financial trouble and went west, returning two years later. On June 28th, 1919, Schaffer wrote him that he had purchased one of the groups of lots, giving'the items and sum necessary to redeem. Nothing happened until May, 19.22, when Welles says he wrote Schaffer about the taxes. The question is at once suggested why, after the long indifference, did he write, and was it because he received the notice to redeem the preceding month ? The other two complainants were quite as unconcerned as Welles. They were drafted into this suit by him. There is no question as to the honesty of their testimony, but it cannot be taken at face value. They may have received the notices, and, uninterested as they were at the time, may have forgotten. However this may be'the force of their testimony is in a great- measure neutralized by that of Schaffer, and not of weight sufficient to overcome the presumption of truth given to the statutory affidavit, that Schaffer made service as the statute requires. The act makes the notice and affidavit and the record thereof presumptive evidence of the service and -facts therein stated, and the statutory service, statutorily established, not actual service, effectuates the bar. The prayer for relief as to the two groups of lots sold to Wiltsie and transferred to Schaffer will be denied.

The certificate of sale of the group of lots sold to- Schaffer, direct, describes the property as “Block 10, lots, parts, 1, 2, 3, 4, 5 and 6 Loraine.” The certificate is, no doubt, void for uncertainty. The notice calls on Welles and others, to redeem lots 1, 2, 3, 4, 5 and 6 — -not parts of lots. This is fatal to the foreclosure, and complainants are entitled to redeem as to them. Black Tax T. bib; Poindexter v. Doolittle, 54 Iowa 52. The court will seize upon the slightest flaw of substance in tax sales to restore property to the owner. The judicial attitude towards tax sales is reflected in the principle reiterated by Yice-Chancellor Lewis- in Harrington v. Horster, 89 N. J. Eq. 270. “The sale of land for non-payment of taxes is- such an extreme interference with private property that the law guards the rights of the owner- with the utmost care. .The due performance' of every step in the proceedings, even in the most minute particulars, is a condition- precedent to the validity .of the sale, and the deed to the purchaser must contain all the statutory requirements. Lyon v. Alley, 130 U. S. 177; Brown v. Veazie, 25 Me. 359; Wilson v. Doe d. Bell (Fa.), 7 Leigh 22.”

Decree accordingly.


author: Baches-, Y. C.

text:
    In the matter of the application of Josephine S. Hubert and Mary L. Tyndale, for an order to sell lands of Joseph West, deceased, limited over.
    [Decided June 24th, 1925.]
    1. Res adjudieata is not applicable wherfe, in a previous suit between the same parties, the question in issue was not ripe for decision and was not tried or determined.
    2. A devise to testator’s daughters for life and “at their decease to their lawful heirs,” held, that upon the death of one of the daughters without issue the surviving sister takes as her heir-at-law.
    On petition for distribution.

      Messrs. Lindctbury <& Steelman, for the petitioner.

      Mr. Samuel C. Cowart, for the defendant.
   Baches-, Y. C.

The will of Joseph West, deceased, provides, inter alia—

“1 hereby authorize them [executor's] to sell [describing lands not here involved] ; also a tract or parcel of land situated in the city of Newark, New Jersey, running from Belleville avenue to Mount Prospect avenue, containing nearly twelve acres of land. The whole front, which is left after opening street on Belleville avenue, and to the depth of about one-half of said ground, to be leased by my executors for twenty-one years with a renewal of twenty-one years. The net income to be divided equally between my daughters Mary B. and Josephine S. West during their life separate- and apart from their husbands, at their decease to their lawful heirs. The rear half on Belleville avenue to be sold, and, after paying taxes and assessments, the balance to be. invested on bond and mortgage.”

In Tyndale v. McLaughlin, 84 N. J. Eq. 652, the foregoing was construed, and it was held that the daughters were entitled to the income, during the leasehold, of that portion of the tract directed to be leased by the executors; that, as the term had expired, they held a life tenancy in common in the land, and that by the true meaning of the words “at their decease to their lawful heirs” the fee vested in their heirs — • then, presumably, the therein defendant, nephews and nieces of the testator, and the next of kin of the daughters. The defendants there are the respondents here. The land has since been sold under an order to sell lands limited over, and the proceeds are in court. Mary L. (West) Tyndale died recently without issue, and her sister, Josephine, petitioned for one-half of the fund as her “lawful heir,” within the meaning of the will The matter was referred to a master, who reported adversely to the prayer of the petition, to which an exception was filed.

The respondents, who lay claim to the whole of the fund as prospective remaindermen, set up that the decree in Tyndale v. McLaughlin is res adjudícala, and so the master thought. That is not so. In the former action the daughters, as the life tenants, were charged with waste, to which they replied, that under the will they took an estate in fee under the rule in Shelley’s Case, and/or that the testator died intestate as to the remainder, and they took by descent, and, consequently, that the nephews and nieces had no standing to complain. The point decided was that the daughters were not owners in fee, and that the nephews and nieces as heirs presumptive of the testator’s daughters had a standing to call the life tenants to account. The principle of res adjudicata is not applicable. The question now presented was not then ripe for decision. Tuttle v. Woolworth, 62 N. J. Eq. 532; Ogden v. McLane, 73 N. J. Eq. 159; Nagle v. Conard, 79 N. J. Eq. 124. The causes for action are not the same and the question was not litigated or determined. Mershon v. Williams, 63 N. J. Law 398; Hoffmeier & Son v. Trost, 83 N. J. Law 358; Sbarbero v. Miller, 72 N. J. Eq. 248; Schilstra v. Van Den Heuvel, 82 N. J. Eq. 155; Nagle v. Conard, 125 Atl. Rep. 20.

There is nothing in the will to indicate that the testator used the words “lawful heirs” other than in the sense of their definite legal meaning, and, as the surviving sister alone answers the description of lawful heir of the testator’s now deceased daughter, she takes under the devise “at their death to their lawful heirs.” Tuttle v. Woolworth, supra; Oleson v. Somogyi, 90 N. J. Eq. 342; In re Buzby’s Estate, 94 N. J. Eq. 151; American Builders Corporation v. Galligan, 94 N. J. Eq. 731. It is probably true, as the respondents argue, that the testator did not intend either daughter to enjoy more than a life interest, but it is to be added that it is not at all perceivable, from anything in the will 'or the' surrounding circumstances attending its execution, that his mind’s eye was ever upon them as ultimate takers, for it is plain that he expected his daughters would marry and have issue, and that, upon their death, their respective descendants would take the remainder.

And if it be regarded that the testator intended that the devise of the remainder should become effective, in enjoyment, only at the death of both daughters, the respondents would not take as heirs to the one now dead, and could not, except upon the extremely remote possibility of both dying at the same instant. The relationship of heir-at-law of the surviving daughter to her deceased sister precludes the claim of the nephews and nieces, and the share will be ordered paid to the surviving daughter.


author: Baokes, Y. C.

text:
    Ernest Stanber, complainant, v. Sims Magneto Company, a corporation, defendant.
    [Decided June 24th, 1925.]
    1. A chattel mortgage made to a dummy holder is void as against creditors, where the holder untruthfully affirms, in the affidavit annexed, that he paid the consideration for which the mortgage was given.
    2. An affidavit annexed to a chattel mortgage is sufficiently true, if the consideration was paid after making the affidavit but before recording the mortgage. It must be true as of the time of recording.
    3. A chattel mortgage recorded four days after its delivery is not “immediately” recorded within the meaning of the statute, it appearing that it could conveniently, and with reasonable dispatch, have been recorded within three days.
    On motion for payment of chattel mortgage.

      Messrs. Lum, Tamblyn & Golyer, for the complainant.

      Mr. William Harris, for the receivers.
   Baokes, Y. C.

The receivers of the insolvent defendant company dispute a chattel mortgage given by the company to William 6. Sargent as security for a loan of $25,000, on the grounds that the affidavit annexed to the mortgage is untrue; that the consideration was not paid until after the making of the affidavit, and that the mortgage was not immediately recorded as required by the Chattel Mortgage act. The chattels, covered by the mortgage, were sold, pendente Hie, free of the mortgage, and the mortgage, if valid, is payable out of the proceeds in the hands of the receivers.

Charles Iiayden and Fergus Reid, • directors of the insolvent corporation, agreed to procure a loan to the company of $25,000 provided that adequate security be given for the loan in the form of a chattel mortgage to be made by the company satisfactory to the attorneys of Hayden and Reid. On January 11th, 1924, the company made its six months’ note to Sargent and executed to him the chattel mortgage to secure its payment. The following day, Saturday, it was left with Sargent at the office of Hayden, Stone & Company, bankers, in Hew York, at which firm Hayden was a partner and Sargent an employe. Sargent, after the mortgage was approved by Haj’den’s lawyer, upon the direction of Hayden, drew the check of Hayden, Stone & Company to the company for the amount of the loan and mailed it to the company’s office in Hew Jersey, and sent the mortgage, after making the affidavit, to Reid's lawyer for his approval, and at the same time endorsed the note and assigned the chattel mortgage to Hayden and Eeid. Reid’s lawyer received the mortgage Monday, sent it to the Hew York county clerk for his certificate authenticating the notarial jurat, and dictated a letter of direction to his Hewark correspondent to have it recorded. Tuesday the letter was transcribed and mailed, and the following morning it reached Hewark and was recorded at ten forty-nine a. m.

1. The affidavit made by Sargent, attached to the mortgage, reads:

“State oe New York, 1 County oe New York, Jss'
William G. Sargent, the mortgagee in the foregoing mortgage named, being duly sworn on his oath, says that the true consideration of the said mortgage is as follows, viz.:
$25,000 in cash this day loaned by the mortgagee to the mortgagor as evidenced by the mortgagor’s promissory note described in said mortgage.
Deponent further says that there is due on said mortgage the sum of $25,000, besides lawful interest thereon, from the 12th day of January, 1924.
William G. Sargent.
Sworn and subscribed to before me this 12th day of January, a. d. 1924, at New York, N. Y.
Chas. Finkler,
Notary Public, Kings County, No. 56; certificate filed in Neto York Co., No. 82; commission empires March 80, 192Jf.”

The statement in the affidavit, that the true consideration was “$25,000 in cash this day loaned by the mortgagee to the mortgagor,” is untrue. Hayden and Reid made the loan, not Sargent. The consideration for the mortgage came from them, not from him. It is urged that they provided him with the money to make the loan. That is not the fact.. The consideration did not even pass through him; he simply handled it as clerk to his employer. He was Hayden and Reid’s conduit or dummy through'whom only the evidence of the debt and the security — the note and the mortgage — passed from the company to them. Untruth in this respect voids the mortgage. Hunt v. Ludwig, 116 Atl. Rep. 699; In re Novelty Webb Co., 236 Fed. Rep. 501; Miller v. Gourley, 65 N. J. Eq. 237; Boice v. Conover, 54 N. J. Eq. 531; Tingley v. International Dynelectron Co., 74 N. J. Eq. 538; Bollschweiler v. Packer House Hotel, 83 N. J. Eq. 459.

2. The loan was made two days after the affidavit was sworn to, but before the recording of the mortgage. The affidavit is not objectionable if it be true as of the date of the recording of the mortgage. Tingley v. International Dynelectron Co., supra.

3. The mortgage is void as to creditors, also, because it was not immediately recorded. The mortgage, previously approved by Hayden’s lawyer, was approved by the lawyer of Reid, Monday following its delivery to Sargent; Sargent, who sent it to the count}’' clerk that day, and upon its return dictated his forwarding letter, which was not posted with the mortgage until the following evening, arriving in Newark the next morning It could conveniently have been mailed Monday. The cause of the delay, twenty-four hours, was put on the stenographer. That is an explanation, but not an excuse, for not complying with the requirement of the statute, that a chattel mortgage must be immediately recorded — that is, as soon as may be by reasonable dispatch under the circumstances of the case. Bollschweiler v. Packer House Hotel Co., supra.


author: Backes, V. C.

text:
    John A. Cozzone & Company, a corporation, complainant, v. William C. Redfield et al., defendants.
    [Decided June 25th, 1925.]
    Equity will set aside a contract entered into by mistake, where the party seeking to take advantage of it, procured it, knowing that the signer was laboring under the mistaken belief that it correctly set forth the contract. To procure it under such circumstances is a fraud; to take advantage of it is also a fraud.
    On bill to reform a contract.

      Mr. Samuel Roessler, for the complainant.

      Messrs. Auienreüh & Gannon, for the defendants.
   Backes, V. C.

Pathe Preres Phonograph Company owed Cozzone & Company for merchandise, approximate^', $20,000, evidenced by a trade acceptance of $5,000, discounted and held by a bank; a trade acceptance of $3,000, discounted by one Schencker ; a trade acceptance of $3,000 in hand, and by an open book account balance of about $9,000. To induce Cozzone & Company to sign a credit extension agreement, the Pathe company, then in financial difficulty and in charge of a creditor’s committee, delivered to it, in part payment of the indebtedness, merchandise and machinery, equal in value to the book account, and enough to pay the $3,000 trade acceptance Cozzone & Company had in hand. The exact amount in excess of the book account was $3,041.23. When the Schencker trade acceptance fell due, it was protested, and upon Schencker’s threat of suit the Pathe company paid him $1,500 in cash, and gave renewals of $750 each. At the same time Cozzone & Company surrendered the $3,000 trade acceptance in hand, on the promise, as it claims, that it was to offset by that amount the $3,041.33 balance of the merchandise item. The Pathe company shortly afterwards went into the hands of receivers, the defendants in this suit, who brought an action in the supreme court to recover the $3,041.23 on book account, to which action Cozzone & Company set up that it had surrendered the $3,000 trade acceptance in hand in satisfaction of that much on the'book account, and that it owed but $41.23. At the trial before Circuit Court Judge Speer, without a jury, the receivers offered in evidence this written offer, and testimony that the $3,000 trade acceptance in hand was delivered up pursuant to its terms:

“March 22d, 1921.
Pat he Freres Phonograph Company and Creditors' Committee.
Dear Sirs:
I hereby offer to sell and deliver to you for cancellation your two trade acceptances for $3,000 each, coming due, respectively, on March 12th and March 19th, an aggregate amount of $6,000, in consideration of your company, notwithstanding my signing of the creditors’ extension agreement, paying me $1,500 in cash and delivering me trade acceptances for $750 and for $750 coming due, respectively, on June 13th, 1021, and on September 12th, 1921, and in consideration of the creditors’ committee agreeing to such payment acting through their agents.
Yours very truly,
Join? A. Cozzone & Co.,
Joi-in A. Cozzone, Pres.
John A. Cozzone [Seal]
Antonio F. Pavia, Treas.”

Cozzone & Company offered testimony that the trade acceptance in hand ivas delivered up for cancellation in part satisfaction, which the trial judge refused to entertain, and ordered judgment for the plaintiffs, deferring the entry until Cozzone & Company could apply to this court for relief. Upon the tiling of this bill, to reform the written offer, to include the contemporaneous promise of offset, action in the law suit was stayed. The testimony before me was substantially like that in the trial at law — Cozzone, the president of Cozzone & Company, maintaining that he surrendered the trade acceptance' for cancellation upon the promise of one Bailey, the secretary of the creditors’ committee, that his company was to have credit for it on the book account; and there is considerable supporting testimony that he so promised. On the other hand, Bailey insisted that there was no mention of credit during the negotiations, and explained that Cozzone, his company being financially shaky, was anxious to appease Schencker, and agreed to surrender the trade acceptance if the Pathe company would settle with Schencker and avert the threatened judgment and execution against his company, he, Bailey, having at the same time reasoned with Cozzone that if the Pathe company were forced to' the wall he would probably receive but fifty cents on the dollar. He further testified that when the bargain was struck he had the lawyer of the creditors’ committee prepare the written offer in New York, and that some days later he returned to Newark, paid Schencker, and, thereupon, Cozzone and Pavia, the treasurer of Cozzone & Company, signed the paper and surrendered the trade acceptance. It was a story faultlessly and frankly told, but it was not appealing. It ran counter to common experience. Men do not ordinarily surrender two trade acceptances for the payment of one. At the conclusion of the testimony there was little question that Cozzone’s version was true, although he admitted having read the paper before signing. His explanation is that he signed the paper "which 1 understood to be the cancellation of the debt owing on my books to the Pathe people,” and that when he read it, “T thought it expressed my agreement with Mr. Bailey,” and that he "understood that was what the sense of the agreement would be,” from Mr. Bailey.

Some time after the hearing, the solicitor of the receivers came to me in chambers with the trade acceptance in hand of $3,000, which had not been produced either at the trial at law or here, and he was advised to show it to opposing counsel, and, upon motion, a rehearing was granted and the trade acceptance was offered in evidence. On the face, in the top margin, is written "canceled to offset mdse, sold.” There was no explanation. It had, ever since its surrender by Cozzone, been in the hands of Pathe company or the receivers. And there is no explanation of the fact that the words of cancellation on the original were not written on the copy of the trade acceptance produced before me at the first hearing. The words of cancellation, in my opinion, conclusively impugn the integrity of the 'written offer. Counsel for the receiver, not disputing the irrefutable conclusion of fact; nevertheless, contends that the complainant is not entitled to a reformation, because, according to the well-settled principle, “where a party attaches his signature to a contract, otherwise valid, a conclusive presumption is created, except as against fraud, that-the signer read, understood and assented to its terms.” Fivey v. Pennsylvania Railroad Co., 67 N. J. Law 627. And, that if it was the result of a mistake, the mistake was unilateral, on the part of the complainant, and that contracts are not reformable in equity except upon mutual mistake. Green v. Stone, 54 N. J. Eq. 387. If the contract was the result of a unilateral mistake the remedy is by rescission. Wirsching v. Grand Lodge, F. & A. M. of N. J., 67 N. J. Eq. 711. And if procured by fraud it may be reformed or altogether stricken down — rescinded. In the light of the established facts attending the execution of the disputed document there can be no reasonable doubt that Bailey, the secretary, encouraged the officer of the complainant to sign it, knowing that they were laboring under the belief that it effected a discharge of the book account. That was a fraud. And to take advantage of it is also a fraud. Black Rec. & Gane. § 130, and cases cited; Scott v. Hall, 60 N. J. Eq. 451; Dunston Litho. Co. v. Borgo, 84 N. J. Law 623.

The written offer will be set aside, and if a prayer to that end is necessary it may be added to the bill. The fraud may also be charged by amendment.

Upon a rescission the slalus quo ante must be restored as nearly as may be. Here, there is nothing to restore. Payment bjr the Pathe company of the Schencker trade acceptance, which it claims was the consideration for the cancellation of the trade acceptance in hand, was its bounden duty. The extension agreement did not apply to the Schencker debt because it was signed by Cozzone after he became the owner of the trade acceptance. The Pathe company gave nothing for the trade acceptance in hand.

Decree accordingly, with costs.


author: Bacices, Y. C.

text:
    Raffaelo Celendano and Angela Celendano, complainants, v. Mary Blazejewski, now known as Mary Czenscik, and William Czenscik, defendants.
    [Decided June 25 th, 1925.]
    1. A married woman cannot contract to sell lands, enforceable in equity, except by a contract in writing duly acknowledged and certified.
    2. A memorandum of a contract of a married woman to sell her land, signed and duly acknowledged by her and certified, is not a contract enforceable in equity. It is merely evidence of her oral agreement, satisfying the statute of frauds. The acknowledgment 'is nugatory.
    On bill for specific performance.

      Mr. Jerome Alper and Mr Benjamin M. Weinberg, for the complainants.

      Messrs. Kanter & Kanter, for the defendants.
   Bacices, Y. C.

The complainants file their bill to compel the defendants, wife and husband, to convey the wife’s house and lot, which they agreed to sell for $5,500, and in acknowledgment of which, at the time of the down payment, they gave this receipt :

“Received from Raffaelo 'Celeudano and Angela, 327 Jefferson street, Newark, New Jersey, 200/two hundred dollars — deposit any house, 174 .South Sir..—
Price ........................................ $5500.00 Dollars
Deposit ....................:................. 200.00 “
Balance ...................................... $5300.00 Dollars
Newark, N. J., May 22d, 1924.
(Signed by cross) Mary Czenscik val Blaxejbwski
Charley Miller.
William Czenscik.”

Miller witnessed the signatures. A certificate of acknowledgment in due form is annexed, dated August 22d, 1924. Eire partly destroyed the house, and, after it was repaired, the defendants refused to convey, and they now set up that the complainants were to pay $5,500 and take the property subject to two mortgage encumbrances; that after the fire, the complainants abandoned the contract; that the certificate of acknowledgment is untrue, and that the memorandum in writing does not meet the requirements of the statute of frauds. I find against the defendants on the questions of fact. The memorandum contained all of the contract that the statute requires. Johnson v. Buck, 35 N. J. Law 338; Wollenburg v. Rynar, 96 N. J. Eq. 38.

But the contract cannot be enforced. A married woman cannot convey land except by a duly acknowledged deed. Whalen v. Manchester Land Co., 65 N. J. Law 206. And she cannot bind herself to convey land except by a contract in writing duly acknowledged. Corby v. Drew, 55 N. J. Eq. 387; Goldstein v. Curtis, 63 N. J. Eq. 454; Schwarz v. Regan, 64 N. J. Eq. 139; TenEnck v. Saville, 64 N. J. Eq. 611; Saldutti v. Flynn, 72 N. J. Eq. 157; Chassman v. Wiese, 90 N. J. Eq. 108; Crandall v. Graham, 93 N. J. Eq. 675; Rittenhouse v. Swiecicki, 94 N. J. Eq. 36; Kotok v. Rossi, 94 N. J. Eq. 327; Kolinsky v. Pilz, 94 N. J. Eq. 796. At common law a married woman could not contract to convey land. By the fifth section of the Married Woman’s act (Comp. Slat. p. 8226), she may contract as though she were unmarried, and, for breach of her unacknowledged contract in writing to sell land, is personally liable in damages. Wolff v. Meyer, 75 N. J. Law 181. But such a contract cannot be specifically enforced. All the enabling acts empowering her to convey or to contract to convey land require, as an essential to the exercise of the power, a previous acknowledgment, ■duly certified to her deed or contract. Section 39 of the C011-ve3rance act, amended P. L. 1918 p. 119, as to conveyances and contracts for the sale of land. Section 39a (Comp. Sial. p. 15kS), as to conveyances in which her husband joins by power of attorney, and section 40, as to conveyances by power of attorne3r, duly acknowledged by her. Section 8 of the Married Woman’s act (Comp. Slat. p. 8229), as to releases of interest in land, and section 8f (Comp. Sial. p. 8281), as to conveyances in execution of a written contract to sell lands, duly acknowledged:. The receipt satisfies the statute of frauds and is competent proof of an oral agreement. It is not a contract. It is only a memorandum of the contract. The certificate of acknowledgment to the memorandum is nugatory. TenEyck v. Saville, supra.

The bill will be dismissed.


author: Backes, V. 0.

text:
    Robert Paterson, complainant, v. Osceola Currier et al., defendants.
    [Decided June 25th, 1925.]
    1. Chancery has not jurisdiction by virtue of section 7 of the act (P. L. 1915 p. 181/) to decree rights of parties under deeds, wills and other instruments, unless the complainant has a right thereunder cognizable in a court of equity.
    2. Chancery has not jurisdiction under the act “concerning declaratory judgments and decrees” (P. L. 19f,l¡ p. 312) to declare rights purely legal. Chancery may declare equitable rights only. Legal rights must be declared in the law courts.
    On bill for declaratory decree.

      Mr. Arthur B. Seymour, for the complainant.
   Backes, V. 0.

The complainant holds paper title to land by deed from Louise Delannoy Harrison, a devisee under the inartificially drawn last will and testament of Sarah Ogden Wade, deceased, and he prays that the will be construed in respect of the devise, and that it may be declared what estate passed by the devise to the said Louise Delannoy Harrison, and what estate was conveyed by' her to him. In Hoe v. Hoe, 84 N. J. Eq. 401, it was held that chancery had not jurisdiction to construe a will, where the question is purely one involving the legal title to land. Hoagland v. Cooper, 65 N. J. Eq. 407. Since that decision, the seventh section of the supplement of the Chancery act (P. L. 1915 p. 184) provides:

“Decree to declare rights. Subject to rules, any person claiming a right cognizable in a court of equity, under a deed, will or other written instrument, may apply for the determination of any question of construction thereof, in so far as the same affects such rights, and for a declaration of the rights of the persons interested.”

The complainant claims no equitable right under the will or his deed, “cognizable in a court of - equity,” and his bill does not come within the purview of that act. Snyder v. Taylor, 88 N. J. Eq. 513.

In 1924 the legislature passed “An act concerning declaratory judgments and decrees” (P. L. 1924 p• S12), which provides:

“1. Courts of record within their respective jurisdictions shall have power to declare rights, status and other legal relations whether or not further relief is or could be claimed. n No -action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect, and such declarations shall have the force and effect of a final judgment or decree.
“2. Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance-, contract or franchise, and obtain a declaration of rights, status or other legal relations thereunder.”

This act confers jurisdiction on the law and. equity courts to declare rights of parties in such matters only as the courts respectively would, otherwise, have jurisdiction over if the rights were ripe for relief. The question upon which a judicial declaration is sought does not come under any recognized head of equity jurisdiction. It relates to the legal title to land, and is cognizable at law only. Thropp v. Public Service Electric Co., 84 N. J. Eq. 144. Equity can no more declare purely legal rights than a court of law can declare equitable rights. The statute plainly reads that the courts, “within their respective jurisdictions,” i. e., each within its own jurisdiction, may give declaratory judgments and decrees.

The bill will be dismissed.


author: Baches, Y. C.

text:
    Solomon Aron, complainant, v. Charles Wagner, defendant.
    [Decided June 29th, 1925.]
    Upon a partnership accounting, it is too late to complain that the system employed by one of the partners in carrying on the business resulted in loss; the complaining partner having had full notice of the system, and although complaining, having taken, periodically, over a long term of years, his share of the profits.
    On exceptions to master’s report.

      Messrs. Rilcer & Rilcer {Mr. Theodore McQ. Marsh), for the exceptant.

      Mr. W. Howard Remarest, for the defendant.
   Baches, Y. C.

The complainant and defendant were' partners from 1914 to May, 1922, in conducting a meat shop in Montclair. The store was fitted up by the defendant; the complainant’s share of the cost were taken out of his share of the profits of the business. The defendant ran the business, for which he was to receive $25 per week, in addition to half of the profits. The complainant invested nothing, and, apparently, did nothing, except to complain, and take his share of the profits. An accounting was ordered, and the master, to whom it was referred, has filed his report, to which exceptions are taken.

The defendant operated a chain of stores, but the com* plainant was interested only in the one at Montclair. In 1916 he started a warehouse from which he supplied the stores, including the one at Montclair, and charged the latter with its proportion of the cost of operation. He sold to the Montclair store at cost, plus a small, uniform charge for shrinkage in weight — the difference between what the meat weighed when received at the warehouse and when delivered at the store.

The complainant sought to surcharge the defendant with the operation cost of the warehouse apportioned to the Montclair store, the charge to cover shrinkage, the sum total of the $25 dollars per week paid the defendant for managing the store, claiming that he did not give it the required attention, a depreciation charge on the fixtures in the store, and interest on money withdrawn by the defendant. All these items of surcharge the master quite properly refused to allow, and in his report gives his reasons, to which little is to be added.

The • warehouse system was carried on as an economic measure, in the benefits of which the Montclair store shared proportionately with the other stores of the defendant, and it is but just that the store should stand its share of the cost of operation. The uniform charge for shrinkage was not in excess of. the money loss in weight, and it does not appear that the cost price of meat charged to the Montclair store, including the shrinkage or charges, exceeded the market price of day-to-day purchases from the meat houses. In fact, it appears to have been less. By the warehouse system the defendant was able to buy in large quantities at advantageous prices, and take advantage of the market when the prices were off. The Montclair store got the benefit, and also the advantage of choice of selection, and quick and ready service. There was no profit to the defendant in either item.

As to the $25 a week. The Montclair store was in charge of a local manager. The complainant thought the defendant should give it personal and closer attention. I think he gave it all that was understood he was to give. He managed it executively, as he did his other stores. He was to do no more.

The complainant was conversant with the methods employed by the defendant in carrying on his joint store enterprises, and regular periodical statements of the business were made to him, accompanied by checks for his share of the profits, which, demurringly, he took over a period of years. His complaint now, after this long lapse of time, is too feeble to be heard. The partnership was for an unlimited time, and, if the course of dealings of his partner was objectionable, it was his privilege to terminate the relation. That was his time to act. Having reaped the profits of the system, he cannot be permitted to take advantage of its imperfections, if any there were.

The depreciation and interest items were correctly disposed of by the master.

Exceptions dismissed.