text:
    Roy U. Smith, petitioner, v. Frances B. Smith, defendant.
    [Decided October 29th, 1923.]
    Evidence examined, and held to sustain the charges of the petitioner of the adultery of the defendant.
    On final hearing on petition for divorce.

      Mr. Merritt Lane and Mr. William W. Evans, for the petitioner.

      Messrs. Ward & McGinnis, for'the defendant.

      Mr. Wood McKee, for James J. Donnelley, corespondent.
   Lewis, V. C.

This is an action for divorce on the ground of adultery. The answer is a denial and an attempt is made to show extreme cruelty; but I am unable to discover a scintilla of evidence to sustain such a charge. Moreover, extreme cruelty is not a defense to adultery.' The defense does not attempt to show condonation. The case took about a week to try and there is a great mass of testimony. Several of the witnesses, sworn in behalf of the petitioner, were close and intimate social friends of both the petitioner and defendant for many years. They attended the same social functions and were well acquainted with them. They maintained their friendship for both until they obtained knowledge of the misconduct of the defendant with the co-respondent, Donnelley. Most of these witnesses are well known residents of Paterson and are of unquestioned integrity. It is quite evident that some of them were extremely loth to testify against the defendant.

The petition filed by the husband names two co-respondents, Harry E. Pearsall, of Boston, Massachusetts, and James E. Donnelley, of Paterson, New Jersey. The time fixed for .wrong-doing between Pearsall and the defendant is August, 1918, at the home of Mrs. Pearsall, the co-respondent’s stepmother, at Oxford. Mrs. Prances B. Smith, the .defendant, was a visitor at the Pearsall home at this time with Mr. and Mrs. William H. Smith, her father-in-law and mother-in-law, and Pearsall was also visiting there. It appears from the testimony of Pearsall, who is a married man, having a wife living in Boston, Massachusetts, and from the testimony of Mr. and Mrfe. William H. Smith, that the defendant and Pearsall grew very friendly and intimate almost immediately .upon meeting one another. Pearsall stayed at his stepmother’s home for several days. His explanation of his visit there is that he came to settle up a small estate left by his father; but it appears that he only made one visit during his stay to the lawyer of the estate. He found time, however, in addition to taking out the defendant with the other parties at his stepmother’s home, to take her out on a trip alone to a country fair. His explanation for taking her alone on this •"trip was that he found her so agreeable. Mr. and Mrs. William H. Smith, the father-in-law and mother-in-law, testified that after they had retired at night, at about eleven, o’clock, they left Pearsall and the defendant downstairs in the house, and that on two nights after they had gone to their bedroom they heard someone tiptoeing from Pearsall’s room in the direction of the defendant’s bedroom. These witnesses heard the defendant and Pearsall come upstairs together and heard Pearsall go to his room, which adjoined theirs. It was only a few minutes afterwards that. they heard him going through the hall toward the defendant’s room. It was a very soft tread, they avow, and that he stopped at the defendant’s room, for there was no other place to go. The defendant’s room, from the diagram produced, appears to have been in the front of the house and there was nothing else in this locality. They discussed the matter, but did not tell the petitioner of it until after the occurrence of November 19th, 1921, in the Blue home.

This proof standing alone I, of course, would not be willing to accept as satisfactory to establish a charge of adultery, although the testimony as to the conduct of the defendant and Pearsall at the Oxford home shows them to have been on terms of greatest familiarity and friendship and ample opportunity was there offered for the commission of the offense.

William H. Smith, among other things, tells of finding Pearsall and the defendant in the bathroom on one of the mornings after the night he heard Pearsall go into Mrs. Smith’s room. Pearsall was in the bathroom and the defendant in the doorway. The. co-respondent was dressed and the defendant had on a kimona. He says that he said to the defendant, “are you crazy?” Amd she replied, “it is none of your business what I do.”

The evidence discloses a continuation of the friendship and relationship between Pearsall and the defendant. After the meeting at the Oxford home they met in New York on various occasions and had luncheon and dinner together—they say in company with a Mrs. McGee. They danced together on these occasions. The defendant says that she told her husband she was going to meet Pearsall in New York; but he denies having any knowledge of their meetings. All agree that he never met Pearsall, and, strange to say, according to Pearsall and the defendant, it appears that all the appointments made for meetings between them were through 'Mrs. Mc.Gee. Pearsall, in his testimony, says that he never met Smith, the petitioner, and never telephoned to the defendant to make appointments. He knew that she had a telephone at her home and could readily have been reached by him in this way.

Mrs. McGee, who arranged all the meetings between the defendant and Pearsall, was not called as a witness. It is alleged that she is a resident of New York state; but, from the testimony of the defendant, it is shown that she was on terms of intimacy with her at the time of this trial. In fact, she testified that Mrs. McGee had recently visited her in Paterson and that she had been on a long automobile ride with her. The defendant could, without doubt, have procured her attendance at the hearing and her testimony would have thrown some light on these clandestine meetings of Pearsall, the married man from Boston, and the defendant. The defendant’s explanation of their meetings, which were had, as is apparent, without the knowledge of Pearsall’s wife or the defendant’s husband, is entirely unsatisfactory and I cannot but conclude, under all the circumstances, they were for guilty purposes.

Now, relating back to the testimony of Mr. and Mrs. Smith, father-in-law and mother-in-law, I believe they told the truth as to the relationship between Pearsall and the defendant at the Oxford home. Their evidence of what happened there, together with the further testimony of secret meetings in New York, are to my mind sufficient to warrant the court in finding that Pearsall and the defendant were guilty of the charge contained in the petition. ‘

The charges against the co-respondent, Donnelley, are sustained by convincing evidence. A large number of witnesses have testified to’having seen the defendant and Donnelley together under circumstances which preclude the belief that their meetings were innocent and for innocent purposes. I do not need now to give the names of all the parties who have appeared as witnesses in this action and have testified to having seen them together. Evidence is offered to show that they were at' Asbury Park together, and at one time, while the petitioner was absent, it appears that Donnelley and the defendant went to the Allenhurst Club to a dance in tjre evening. They walked from Asbnry Park to Allenhurst, along the boardwalk. Frequently they were seen out in the automobile belonging to the husband of the defendant, and it is established, beyond peradventure, that this was without the knowledge of the petitioner. The defendant testifies that she was in the habit of renting her husband’s car to Donnelley to take out other young women. Her explanation for doing this was that she wanted to get a little extra money, as her husband was not supplying her with sufficient funds, although it appears 'that he was liberal to her considering his earning capacity. He allowed her $30 a week for household expenses, and, during the last year they lived together, he had given her besides that in the neighborhood of $730. The story of renting her husband’s car to Donnelley is absurd and, in my belief, was manufactured for the purposes of meeting the testimony of Edward Fairhurst as to the occurrence on December 4th, 1920.

The witness, Fairhurst, who is a young man of excellent reputation and a well known resident here, has known both petitioner and defendant for many years. He says he was taking a horseback ride on an unfrequented road in the neighborhood of Warren Point on December 4th, 1920, and that, as he was passing through the woods to the Dunkerhook road, he saw the car of Smith, the petitioner, parked about twenty-five feet off the road. In the car he saw the defendant and Donnelley on the back seat and they were embracing and kissing each other. The defendant denies that she was in the car on this day and tells of meeting the co-respondent Donnelley, at the Young Women’s Christian Association, on Ellison street, on that day and renting him the car to take out a young girl friend of his named Miss Myers. Donnelley swears that this was the girl that Fairhurst saw him with on this occasion.

I am satisfied that Fairhurst tells the truth in this matter. His credibility is not impaired in any way and other circumstances corroborate his story. Fairhurst, undoubtedly as an act of friendship, called up the defendant after the event and asked her to see him. She came to his office and he spoke to her in a most friendly manner, cautioning her against her conduct and the perils involved. She told him that it was none of his business; that she would look out for herself, and furthermore said: “If I am interfered with I will lie. I will stop at nothing and if this thing goes into court and any attempt is made to take those children away from me I will swear they are not Eoy Smith’s.”

On the witness-stand the defendant endeavored to convey the impression that Fairhurst’s charges against her on this occasion were prompted by jealousy on his part, as she says he had been in love with her before her marriage—had proposed marriage to her—and that subsequent to her marriage, almost every time they met, he had obnoxiously forced his attentions on her; all of which Fairhurst denies and which appears to be without the slightest foundation. If his attentions to her were obnoxious and offensive why should she have gone to his office after the occurrence on the roadside of December 4th, 1920, which Fairhurst has related? On the last day of the taking of the testimony a picture -postal card, written by the defendant while she was away on a summer vacation to Fairhurst, was put in evidence, which reads as follows:

“Mr. Edward Fairhurst,
East 29th Street, nr. 14th Ave..
Paterson, N. J.
Dear Eddie:
IVliat do you mean by dolling off to Philly? Thought you were a busy man these days. Have you seen Hoy? I am still here and apt to stay, but I really like it. Dove.
(Signed) Frances.”

This communication certainly doesn’t indicate an unfriendliness towards Fairhurst. It was suggested that it may have been written to Fairhurst, her husband’s closest friend, for the purpose of keeping track of her husband’s movements. It certainly stamps her story of her attitude toward Fairhurst as false. Her husband has entered a flat denial of her statement that she complained to him about Fairhurst’s attentions.

Another charge against the defendant is la'd on the night of November 19th, 1921. It is shown that she and Donnelley spent that evening together at the home of her sister, Mrs. Edna Bine. Her sister and her brother-in-law were at a dance that night at Pompton Lakes. Mrs. Smith, it is said, went to her sister’s house to take care of her sister’s baby. Donnelley, however, appeared upon the scene. Donnelley says that he came there that night in response to a letter signed by the defendant saying that she wanted to see him. The letter, he says, has been lost. The defendant says she saw the .letter and thought someone was playing a practical joke. Andrew Blue, the brother-in-law of the defendant, arrived at home about eleven o’clock. When he reached there he found Donnelley in the house. There was an immediate row, the cause of which was not disclosed, as Blue was not put on the witness-stand, although he lives at this house with his wife, the sister of the defendant, in the city of Paterson. A Mrs. M.arsden testifies that she called at the Blue house that night and that the defendant, Donnelley and herself spent the evening together partaking of light refreshments. The defendant says that Mrs. Marsden arrived first and stayed until Donnelley had gone. Blue, of course, knows whether Mrs. Marsden was there when he came home^ and had the row with Donnelley; but he is not called as a witness. I am disinclined to believe that Mrs. Marsden spent the evening there. Why is it that an important witness such as Blue should be kept from the court when his presence and testimony, if Donnelley’s visit to his sister-in-law was for innocent purposes, might have lead the court to another conclusion than that the object of the meeting on this November night was for wrong-doing. As aforesaid, there was an immediate row between Donnelley and Blue, and Donnelley was seen rushing from the house after Blue had entered. He was pursued by an elderly lady, who also was not produced. Donnelley admits on the witness-stand that Blue called him a dirty dog and acted like a wild man, and yet he claims that his visit that night was an entirely innocent one. A hasty examination of Donnelley’s testimony, under cross-examination, indicates clearly what was going on at the Blue home and sheds great light on his entire relationship with the defendant. When the information was conveyed to Smith, the petitioner, as to what had taken place at the Blue house on the night of November 19, 1921, he severed relationship with his wife and refused to live with her.

There is other testimony as to meetings between Donnelley and the defendant. One witness, Harry Burns, a crossing tender at the New York, Susquehanna and Western railroad, in the locality of the home of Donnelley and the defendant, pays that he saw them repeatedly during the summer months of 1921 around eleven o’clock at night standing on the pathway between the crossing and the Broadway station, which is an unfrequented passageway at this hour of the night. He says they were very loving and were kissing each other. Rudolph Wiseman (a member of the bar in this state) testifies to having-seen the defendant and Donnelley going up the railroad tracks (New York, Susquehanna and Western railroad) towards Seventeenth avenue at eleven o’clock one night. This evening he had accompanied Smith, the petitioner, on a hunt for his wife, her absence from her home being unaccounted for on this occasion. He did not inform the petitioner at the time of his discovery because he felt delicate about doing so.

Thomas Spagnola, a fruit dealer with whom the defendant had dealt and who had a store near the New York, Susquehanna and Western railroad crossing at Park avenue, testified to having told the defendant that he has been informed that she was meeting Donnelley in that locality. James Wright testifies to having seen Donnelley and the defendant near the Smith home in an automobile about eleven o’clock at night, when he had left the petitioner downtown at a lodge meeting, and Walter L. Dunstan tells of seeing Donnelley and the defendant automobiling through Passaic city,- and on one evening having seen them entering the Smith homestead through the kitchen door about eight-thirty. Smith, the petitioner, testifies that he never saw Donnelley at his home.

Donnelley is a single man and was not a friend of the petitioner, or even on terms of intimacy with him, and it does not appear that he was ever with the defendant when her husband was present. Rudolph Wiseman, the witness before mentioned, testified that Blue had told him that when he entered his home on the evening of November 19th, 1921, he found his sister-in-law and Donnelley in bed; but this testimony is objectionable and I have ruled it out and not considered it in reaching my conclusion. In fact, giving no consideration to all testimony objected to by the defendant’s solicitors, I am lead, however, to the inescapable conclusion that the charge of adultery against the defendant and the go-respondent, Donnelley, has been proved.

There is other testimony affecting the defendant’s conduct —one an occurrence in the United States hotel in Paterson, where a detective testified that he saw her in the restaurant at eleven o’clock at night with a tall, dark-haired man. They ¡svere having, supper. This was on July 22d, 1922. He watched for them to come out; but at one o’clock, although they had disappeared from the restaurant, he had not seen them come out. An effort was made to have Mrs. Smith admit that she spent the night at the hotel, and, while admitting that she was in the restaurant, says she left there about eleven o’clock. The man- with her was not her husband. No attempt was made to amend the pleading and there is no charge of adultery based on the meeting at this hotel.

Smith, the petitioner, is a silk salesman and a resident of Paterson. He is a young man of good character and standing. None of the witnesses had any charge of misconduct to make against him, save that an attempt was made by Mrs. Blue, the sister of the defendant, to show that he had made improper advances to her. It was quite apparent, however, that the object in view was to discredit him in the eyes of the court. She says that his attentions were objectionable to her, but admitted a continuation of friendship with him after she had found them so. It is my view that he was never guilty of any improper or ungentlemanly conduct toward her. There is, of course, no charge of adultery made against him. His attentions to his sister-in-law were simply those arising from their relationship and there is a grave question in my mind as to whether he manifested any particular interest in her.

As before indicated, the attempt to convey the impression that Fairhurst was moved by jealousy in making his charge 'against the defendant has failed utterly. There is nothing whatever to indicate that he was lead to become an actor primarily in this matrimonial controversy for any ■ other reason than his friendship for the petitioner and the defendant and his desire to avoid the very situation which has now come to pass.

An outstanding feature of this case is that so many witnesses, apparently within the defendant’s control, who could throw light upon the situation have not been produced. Why is it that Andrew Blue, the defendant’s brother-in-law, who drove Donnelley from his home (Blue’s home) on the night of November 19th, 1921, is not produced; the old lady who chased Donnelley from the Blue residence that night; Mrs. McGee, friend of the defendant, who arranged the secret meetings between Pearsall and the defendant, and Miss Myers, who Donnelley says was in the. car with him on the roadway on December 4th, 1920, the afternoon that Pairhurst swears positively that he saw the defendant with him. Why is it that none of them were called as witnesses? No explanation was given by the defense for their failure to bring them to court, nor is it apparent that any attempt was made to procure their attendance.

The petitioner is entitled to relief and a decree may be accordingly entered..


source: Caselaw Access Project

author: Lewis, Y. C.

license: Public Domain

text:
    Edward Shauinger et ux., complainants, v. Olga Apter et al., defendants.
    [Decided November 2d, 1923.]
    On a bill in foreclosure, alleging non-payment of interest and default in payment of installments of principal, which defaults are admitted, but are met by a counter-claim for damages for the violation of the covenant for quiet enjoyment in the deed from the mortgagee to the mortgagor, because the mortgagor could not obtain possession of the premises for the reason that they were occupied by another claiming under a lease from the mortgagee made while he was the owner of the premises. Evidence examined, and held not to sustain the allegations of the counter-claim.
    On bills, &c.

      Messrs. Autenreilh & Gannon, for the complainants.

      Mr. J. Leo Rothschild, for the defendants.
   Lewis, Y. C.

This bill is filed to foreclose a mortgage on premises situated at No. 406 Madison avenue, borough of Bradley Beach, State of New Jersey. The mortgage was given by Philip Apter, now deceased, husband of the defendant, to complainant for $2,000, with interest at six per cent., payable semi-monthly, and providing for the payment of $250 semi-annually on account of the principal. The defaults alleged are:

(1) Non-payment of interest.

(2) Non-payment of installments due under the terms of the mortgage.

(3) Non-payment of taxes and water rents within the time prescribed by the terms of the mortgage.

It was admitted by the defendants that the interest and principal had not been paid and the'third ground of foreclosure was abandoned by complainants at the hearing.

The defendants filed a counter-claim, claiming damages for a breach of the covenant for quiet enjoyment contained in tire deed of the premises to Philip Apter, it being alleged that the complainants had granted a lease for the summer season of 1920 to one Garfinkel and that the defendants, in consequence thereof, were unable to obtain possession and had to go out and hire other premises. They claimed, as a measure of damages, the amount of $800, which was the rent they say they had to pay for the other premises. It appeared from the testimony that Garfinkel, the alleged tenant, was not in possession of the premises at the time of the delivery of the deed and mortgage and it was denied by the complainants and their witnesses that the tenant went into possession under an agreement with them, they having made no arrangement for letting with him. The evidence further shows that the tenant did not go into possession until three weeks after the date of the delivery of the deed and the mortgage in question. The deed and mortgage were delivered on May 18th, 1920, and Garfinkel, the tenant, went into possession on June 5th, 1920. The defendants permitted the tenant to remain in the premises for four months after the delivery of the deed to them and the giving of the mortgage. He was not in possession at the time of the delivery of the.deed. No attempt whatsoever was made by the defendants to collect any rent. This fact is established by Garfinkel, who says the defendants never asked any rent from him. They were the owners—there was no lease of record and they permitted him to stay on the premises. The complainant Mrs. Shauinger’s only interview with Garfinkel, the tenant, occurred some time in May or April, when she told him that she had sold tire property and that he could not take possession of it. He said that he had rented the property in January'and would not give it up. The circumstances and evidence would indicate that Garfinkel might be regarded as a trespasser. He entered the property under an alleged verbal lease made by Frank C. Borden, a real estate agent. Borden says he had authority to rent the premises; but the complainants deny any such authority. “A person cannot, by his own mere assertion, prove he is the agent of another.” Smith v. Delaware and Atlantic Telegraph and Telephone Company, 64 N. J. Eq. 770.

The letters of Mrs. Shauinger, many of which are undated, are in effect a direction to Borden to submit the property for letting and to bring propositions for the same to the landlord’s attention. Borden sent a copy of the lease made with Garfinkel to Mrs. Shauinger, the complainant, for approval; but she refused to approve it and it was never executed. It is significant that Garfinkel never signed this proposed lease. Mere authority to lease property for letting does not constitute authority to make a lease without the approval of the landlord.

It is true that Mrs. Shauinger received a check from Borden, after deducting his commissions, as a deposit for renting and, after some delay, she returned the same to him. This in itself is not sufficient to hold that the complainant had ratified Borden’s act and the further evidence offered does not satisfy me that such was tire case. This, with the other evidence of ratification, does not meet the rule laid down in Lyle v. Addicks, 62 N. J. Eq. 123, and other cases. Borden admits that his recollection of the transaction with Mrs. Shauinger is very dim. (See pp. 14, 15 and 16 testimony. )

It developed during the trial of this cause that the defendant had instituted a suit in the New York courts based on the same allegations as contained in their counter-claim and, at the time of the proceedings in this court, had not discontinued their action in New York. The New York suit was started August 11th, 1920. The defendants’ answer, setting up a counter-claim in this court, was filed on September 17th, 1921, so it is clear that the New York action was first instituted. I intimated at the trial that it might be within the jurisdiction of this court to compel the defendants to elect their remedy in either the New York action or in the counter-claim in this suit; but I am informed by solicitor of the defendants that since the submission of this case he has withdrawn the New York action. It is my recollection that the objection was first urged by the complainants to proceeding in this suit at the closing of argument. I shall not, however, deal with this question now, as my view is that the counter-claim should be dismissed because the evidence does not sustain it.

A decree of foreclosure for the sale of the property may be accordingly entered.


author: Backes, Y. C.

text:
    Jonathan Ackerman Coles, complainant, v. The City of Newark, Charles E. Gillen, director of parks and public property, defendants.
    [Decided July 25th, 1923.]
    1. A gift of a statue to a municipality for use in a park vests complete title in the municipality, which holds it, however, in trust for public use.
    2. A gift of a statue by an individual to a municipality, and the selection of a site for it by the donor and the municipality before the completion of the gift, does not imply that the statue may never be moved.
    3. Though one giving a statue to a municipality for use in a park loses all property rights therein, the municipality acquiring title in trust for the public cannot do what it will with the statue, or sell or destroy it, so long as it serves the public use, such course being an arbitrary abuse of its trust.
    4. Where a city holding title to a statue in trust for the use of the public in good faith seeks to remove it from the site selected for it, intending to use it in a reasonable manner to beautify the city, equity will not interfere with its discretion and enjoin such removal.
    5. A preliminary injunction is not warranted if the complainant’s asserted rights are, as a matter of law or fact, doubtful.
    On motion for preliminary injunction.

      Messrs. McCarter & English (Mr. Robert II. McCarter), for the complainant.

      Mr. J eróme T. Congleton and Mr. Chales M. Myers, for the defendants.
   Backes, Y. C.

In 1895 the complainant gave to the city of Newark the “Indian Group” erected by him at the northerly apex of Lincoln Park, a place selected by the city and the donor. The statute was gratefully received, and was dedicated with solemn ceremony befitting the donation of this attractive and costly work of ant. The city now intends to remove it to a slightly less prominent side in the park, a short distance from its present location, to make room for the “world war monument.” The donor objects and asks that the removal be restrained.

The gift of the “Indian Group” was absolute and unconditional. Complete title is in the city of Newark; held by it, however, in trust for public use. Guild v. Newark, 87 N. J. Eq. 38; Lawrence v. Prosser, 89 N. J. Eq. 248; Crane’s Will, 57 N. Y. Supp. 407; affirmed, 159 N. Y. 557; In re Harteau, 204 N. Y. 292. That the gift has also- the virtue of a charitable trust, in the sense that it is educational, is urged by the complainant, but this is of no moment as tire gift was not upon private trust (as in the Bishop Phillips Brooks monument—Eliot v. Trinity Church, 232 Mass. 517), and the rule against perpetuity is not involved. It is said that the monument was-to commemorate the historic fact that New Jersey was acquired from the Indians without bloodshed. There is no- inscription to make this known to the observer. Per se the group is unintelligible. Its significance varies with the imagination and fancy. The impression is that of a beautiful work' of art—nothing more.

The.claim of the complainant that the mutual selection of the site by him and the city before the completion of the gift implied a condition of irremovability is not apparent. The gift had no strings to it; it was outright, for public purposes—the ornamentation and embellishment of the city, and possibly, but remotely, for charity. The city became trustee for the public, forever and always so long as the monument endures and serves the public interest. I quite agree "with the contention of the city that the gift worked a change of title and that the donor lost all property rights therein, but I cannot give assent to its assertion that: “If that is so, it is within the power of the city to do what it will with the monument, even so far as to dispose of it by sale or demolish it, if in the judgment of the present officials of the city of Newark such disposition of it is advisable.” Not so long as the monument serves the public irse. To sell or demolish it, arbitrarily, would be an abuse of the trust the city owes the public, and would be enjoined upon the application of the cestui que trust—the public, or the donor could intervene. Mills v. Davison, 54 N. J. Eq. 667. Only when it ceases to serve the public use will the trust end.

As long as the city acts in good faith in the execution of its trust, i. e., uses the monument in a reasonable manner to beautify the city, equity cannot interfere with its discretion. Attorney-General v. Moore’s, 19 N. J. Eq. 503; Berdan v. Passaic Valley Sewage Commission, 82 N. J. Eq. 235. If it is kept in mind that the real trust of the city is the adornment of the town, and that the monument is only an instrument to that end, the case is simple. When the monument was erected the city trustee selected the present site as the one then most suitable for carrying out the trust. The donor approved. Now if to enhance the beauty of Lincoln Park the city sees fit to remove the “Indian Group” to another point in the park, not remote or obscure, but, as I understand, in close proximity to other monuments of as great or even greater artistic value, to make room for an imposing and inspiring War Hero Monument, and which, for obvious reasons, has the call of the day, I fail to see how, reasonably, it can be said that the city is not discharging its trust in letter and spirit; or, to put it more closely, how can it be said that it is abusing its trust? That the city at one time thought that the present site of the “Indian Group” was then the appropriate place for the fulfillment of the trust is not an obstacle to the selection of another, and the donor’s acquiescence in the earlier location does not imply a privilege to obstruct the choice of a new one. Suppose the site had since been surrounded by factories, would it not have been within the discretion, yes, would it not have been the duty of the city to chose another and fit place for the monument ? And could the donor object?

A preliminary injunction is not warranted if a complainant’s asserted rights are, as a matter of law or fact, doubtful. Citizens Coach Co. v. Camden Horse Railway Co., 29 N. J. Eq. 299; Allman v. United Brotherhood, 79 N. J. Eq. 150.


author: Backes, V. C.

text:
    Ben. A. Matthews, as trustee in bankruptcy of the Pope Trading Corporation, bankrupt, complainant, v. Bessie Pope and James E. Pope, defendants.
    [Decided July 25th, 1923.]
    1. A corporation’s transfer of its property to its sole stockholder in exchange for notes of another corporation of which the transferee was the principal stockholder, with knowledge on the part of the transferee that both corporations were hopelessly insolvent, held void as to creditors of the first corporation.
    2. A director of a corporation is chargeable with knowledge of the financial condition of the corporation.
    3. The sole stockholder of a corporation is chargeable with notice of the financial condition of the corporation.
    4. Under section 64 of the Corporation act an insolvent corporation’s transfer of all its property to its sole stockholder, with knowledge on the part of the stockholder of the insolvent condition of the corporation, is void as to the corporation’s creditors, the stockholder not being a dona fide purchaser for value.
    On final hearing.

      Mr. Gustave L. Goldstein and Mr Harvey P. Mann (of the New York bar), for the complainant.

      Messrs. Garrick & Wortendyke (Mr. Charles L. Garrick), for the defendants.
   Backes, V. C.

This suit is by the trustee in bankruptcy of the Pope Trading Company to reach real estate in Hudson count}', this state, belonging to the company and conveyed by James E. Pope to his sister, Bessie Pope. At the time of the conveyance, James E. Pope held the title to the property in trust for the trading company. The Pope Trading Company and the Pope Metals Company were New York corporations. The trading company was engaged in foreign trade and the metals company. in domestic trade in the metals market. James E. Pope managed and dominated the business of both. Both companies were adjudged bankrupts in March, 1922. Bessie Pope owned the trading company. She was the sole stockholder. She was also owner of fifteen hundred of the twenty-five hundred shares of stock of the metals company. She had loaned the metals company $25,000, for which she took demand notes. She transferred these notes to the trading company and for which James E. Pope conveyed to her the property of the trading company of the value of about $25,000, by deed dated September 30th, 1921. At that time both the trading company and the metals company were insolvent. •The property turned over to Bessie Pope was the only available and valuable asset the trading company had. The notes she exchanged for it were uncollectible and worthless. The metals company was hopelessly insolvent, not only in the sense in which insolvency is defined by our court—a general inability to meet current obligations by available assets or an honest use of credit—but also in the sense that its liabilities far exceeded its assets. The metals company could not pay its debts. It had not the cash or other means, and, as James E. Pope said, it had not credit at the banks because the banks had "shut down” on it. Its insolvency was also certified by a recital in an agreement of the parties made at the time of the conveyance, wherein the conveyance of the trading company’s property for the metals company’s notes was sought to be justified, to the effect that the metals company was unable to meet its obligations and unable to pay Bessie Pope $25,000 admittedly due her. A comparison of liabilities and assets shows hopeless insolvency. Comparing the book value assets with the irreducible liabilities—not book liabilities but actual liabilities—and eliminating from the book values accounts included therein as assets that should have been struck off because the debtors were bankrupts, it is found that the liabilities are far in excess of the assets. The trading company was no better off. It owed $93,000 besides a debt to the American Manganese Company of about $15,000, as I recall, which was later reduced to judgment, and a large amount due to the federal government for taxes. To meet this it had but $961 in bank, the worthless metals company notes of nearly $200,000 and accounts receivable of $41,000, much of which was uncollectible, and some stocks and bonds and other tangible property which sold for a few hundred dollars.

The contention that the conveyance of the trading company’s property for the worthless notes of the metals company was a bona fide sale is absurd. Bessie Pope knew as well as her brother that her notes were without value. As the owner of the trading company and the major owner of the metals company she must have known of their insolvency. If not, I am inclined to think that she is chargeable, in law, with' notice. I am not holding that a stockholder, as such, is chargeable in law with knowledge of the condition of his company. A director is, and I see no reason why a stock'holder in a close corporation should not be, where, as here, the stockholder and the company are one and the same. But be that as it may, Bessie Pope had actual knowledge of the insolvency of the metals company because her brother told her the company could not pay her debt, and he told her why it could not. As -the sole owner of the trading company she was charged with knowledge of its precarious and hopeless condition. It is argued that Bessie Pope is a woman inexperienced in business, that she was guided entirely by her brother’s advice and that she surrendered her notes for the land in perfect good faith. Granting that, the answer is that she gave no value in return, and she knew it. She went through the form of buying from her own company without giving to the company anything of value. But I am not ready to accept the assertion of her innocence in the scheme. When the crash was imminent her brother inspired her to make demand upon him for payment; to consult her counsel and have him make formal letter demand; to negotiate with him (her brother) not for the money which was due her and which he knew she could not collect, but for and to salvage, at the expense of the creditors of the trading company—her oto company— its last bit of property of value. James E. Pope at the time was living with his sister. Why, if this was an honest purchase, should she consult counsel for the single purpose of having him make formal demand for her debt ? Why should James E. Pope exact official notification of his sister’s demand, and then—having “persuaded” his sister Bessie to take the only thing the trading company had in payment of the worthless metals company notes—have it certified in the agreement already referred to that.this peculiar transaction -was due to the precarious condition the trading company would be in, because of its large holdings of the metals company notes, if Bessie Pope should force payment from the metals company? The pains of formality spells insincerity. The fraud is so plainly obvious—even, it must be to a woman—that I fail to' see how Bessie Pope can be absolved of the charge of active participation.

The appropriation by her of the only asset of the corporation that amounted to anything for the valueless and worthless notes of the metals company was a palpable fraud upon the creditors of the trading company. The deed must be set aside on the ground of fraud upon the creditors of the trading company.

There is another reason why the deed must go down. Section 64 of the Corporation act (Comp. Stat. p. 1688) provides that:

“Whenever any corporation shall become insolvent or shall suspend its ordinary business for want of funds to carry on the same, neither the directors nor any officer or agent of the corporation shall sell, convey, assign or transfer any of its estate, effects, choses in action, goods, chattels, rights or credits, lands or tenements; nor shall they or either of them make any such sale, conveyance, assignment or transfer in contemplation of insolvency, and every such sale, conveyance, assignment or transfer shall be utterly null and void as against creditors; provided, that a liona fide purchase for a valuable consideration, before the corporation shall have actually suspended its ordinary business, by any person without notice of such insolvency or of the sale being made in contemplation of insolvency, shall not be invalidated or impeached.”

The trading company, as already said, was insolvent at the time the deed was made, and to the knowledge of Bessie Pope, and she does not therefore come within the proviso as a bona fide purchaser for value.

I will advise a decree that Bessie Pope holds the property in trust for the trading company and that she convey it to the company. Or if, under the federal law, title passes to the trustee, as it does to receivers under our Corporation Insolvency law, then she will be ordered to convey to the trustee. She must account for the rents, issues and profits from September 30th, 1921. The increments, if there were any, were fraudulently obtained. Costs and counsel fee of $500.


text:
    Amy C. Duryee, complainant, v. Mary O. Duryee, defendant.
    [Decided October 19th, 1923.]
    Testator gave his estate to his wife for life, remainder to his children in equal shares. The shares of his daughters to he invested by the executors, the income to be paid to them during life, and the principal “to be paid over according to the disposition she may make of the same by her will.” Held, that the limited right of disposition by will was not a mere power to appoint by will; that the legacies were vested in the daughters and formed part and parcel of their estates for general testamentáis disposition.
    On bill for directions to a trustee.

      Mr. Henry H. Dawson, for the complainant.

      Mr. Howard F. Kirie, Mrs. -John L. Ranlein and Mr. Francis Lafferty, for the defendant.
   Backes, V. C.

By the fifth clause of his will Peter S. Duryee testated as follows:

“It is my will that at the termination of my wife’s life all my estate, real and personal, excepting the residence and furniture that may in the opinion of my executors be requisite, as stated in the second and third items, for my family, be equally divided among the children of myself and wife as follows: The portion of each of my daughters is to be invested and my executors are to pay them, during their respective lives, the income arising therefrom; and the principal of each daughter’s portion is at the death of such daughter to be paid over according to the disposition she may make of the same by her will, and if she dies intestate then to be paid over to her child or children, if ghe leaves any, and if she dies intestate and leaves no child or children, the principal is to be equally divided among my other children.”

(The remainder of the clause provides for the pajnnent of the legacies to the sons at the age of twenty-one.)

Anna B. Duryee, a daughter, died recently leaving a last will and testament in which she bequeathed to various legatees about $39,000; residue to her brothers and sisters; children of deceased brothers and sisters to take their parent’s share. She also empowered her executors to make settlements of her interests in the estates of her father and mother, and to give full and complete releases for the same.

The complainant is in doubt and asks to be advised whether Anna’s portion of her father’s estate is disposed of by her will.

The bequests to the daughters vested in them at the death of their father, with a limitation upon their right of disposition, subject, however, to being divested if they died intestate. ■ They could not spend the principal, but they could dispose of it by will. The portions given to the daughters were incorporated in and became a part of their estates if they died testate and passed by their will.

The instant case is not one of mere power of appointment by will, as in Farnum v. Pennsylvania Company for Ins., &c., 87 N. J. Eq. 108, where it was held that the intention to execute such a power must, in some form of expression, be found in the appointor’s will, either bjr express, terms or recitals or by necessary implication.

It was also Miss Duryee’s conception that her share of her father’s estate formed a part of her estate for disposition by will, for the amount of her legacies far exceeded her private fortune. This is also emphasized by the authority given to her executors to make settlement with her father’s estate.

The complainant is advised, in distributing Anna B. Duryee’s estate according to the directions of her will, to include that which came from her father.


author: Rackes, V. C.

text:
    G. Edward Christine, complainant, v. Horace F. Baldwin, defendant.
    [Decided October 19th, 1923.]
    Where -property is left to trustee to pay income to a life tenant, and upon her death to pay over, transfer and convey the principal to designated persons, the trust does not cease upon the death of the life tenant, but the trustees are under a further duty to convey to the persons designated in the will, and their deed, executed for that purpose, is good.
    On motion to dismiss bill.

      Messrs. Smith & Slingerland, for the complainant.

      Mr. Gilbert M. Cornish, for the defendant.
   Rackes, V. C.

The bill is filed to compel the defendant to take and pay for land which he agreed to buy from the complainant. The defendant moves to strike out the bill because, as he says, that on its face it shows that the complainant has not a marketable title. From the complainant’s chain of title set out in the bill it appears that the property belonged to one Frederick H. Smith, Jr., who died in 1916, leaving a last will and testament in and by the third clause of which he provided:

“Third: I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, of whatsoever nature and description and wheresoever situate, of which I shall die seized and possessed or to which I shall, in any manner or way, be entitled at the time of my death, as follows:
“1. A one-quarter part of my said residuary estate to my executors, hereinafter named, jointly, in trust nevertheless, to hold and manage, invest and reinvest the same, and to collect and receive the interest. rents and income arising therefrom, and to pay over the net interest, rents and income thereof to my wife, Joanna D. Smith, in quarterly payments during her life; and upon her death to pay over, transfer and convey the principal of said one-quarter part of my said residuary estate to my then living issue, share and share alike, taking per stirpes and not per ewpita, absolutely.
“2. A one-quarter part of my said residuary estate to my daughter, Josie Downing Field, absolutely.
“3. A one-quarter part of my residuarj' estate to my son, Frederick I-I. Smith, 3rd, absolutely.
“4. A one-quarter part of my said residuary estate to my son, Karl G. Smith, absolutely.”

By the fourth clause he provided:

“Fourth: I hereby authorize and empower my executors hereinafter named, and the survivor of them, both in their capacity as such executors and also as trustees of the trust created under subdivision ‘I’ of the third paragraph or clause of this my will, to invest and reinvest the assets of my estate and of the said trust so created under this my will, in any bonds, stocks or securities, or in any manner in their absolute discretion, acting in good faith, and shall not be confined to the usual investments which trustees, by mere virtue of their office, are authorized to make in the states of New Jersey and New York. And I do hereby further authorize and empower them, or the survivor of them, to sell, mortgage, lease or otherwise dispose of any or all of my said estate and the assets of said trust, both real and personal, at public or private sale, at such time or times and upon such terms as to them, or the survivor of them, may seem proper. And further, to settle and compromise any claims I may have against others in such manner and at such time or times and upon such terms as to them, or the survivor of them, may seem proper.”

The life tenant died in 1918, and thereafter the surviving executor and trustee under the will conveyed the land to the complainant’s predecessors in title.

The contention of the defendant is that as the trust came to an end upon the death of the life tenant that thereby the trustee’s right to exercise the power terminated. This view is not sound. The trustees held the property in trust not only to pay the income to the widow but also in trust to convey. The title remained in them until it was paid over and their duties and powers did not cease until they so devested themselves. The trust was not self-executing. Phil lips v. Vermule, 88 N. J. Eq. 500. Under the terms of the power given by the will, which are of the broadest nature, the trustees had authority to convey not only during the existence of the life interest but also for the purpose of carrying into effect the provisions of the will to “pay over, transfer and convey.” Eor convenience of distribution it was within their discretion to convert the trust estate into money, or they could have conveyed it in kind. Hatt v. Rich, 59 N. J. Eq. 492. The cestui que trust could have elected to receive in kind. Huber v. Donohue, 49 N. J. Eq. 125.

The complainant has good title to convey. The motion to dismiss will be denied.


text:
    Alexander Milmoe and Catherine Milmoe, his wife, complainants, v. August Zimmerman and Theresa Zimmerman, his wife, defendants.
    [Decided October 29th, 1923.]
    1. On a bill to redeem lands sold under the Martin act, the proceedings leading up to the sale cannot be attacked; but the proceedings subsequent to the sale may be.
    2. The rule of law that every step in the proceedings under the Martin act must be duly performed, even in the most minute particulars, does not obtain in a bill to redeem after conveyance made.
    3. Where the record shows that the notice required by the Martin act was served upon the wife of the owner of the land at the place of abode of the owner, the objection that the record does not show that the wife was over fourteen years old and a member of the .owner’s family, is purely technical.

      4. Where the record shows that the notice required by the Martin act was served by the purchaser’s clerk in his employ, the objection that the record does not show that the clerk was the purchaser’s agent is also purely technical. The fact that the prooís were not statutorily perfect worked no harm to the owners, as they had actual notice of the «ale, as the Mar-tin act bars the owners from setting-up formal defects or irregularities and forbids the court to disregard the deed of the comptroller unless injury is suffered.
    On bill to redeem. On final hearing.

      Mr. Michael J. Quigley and Mr. Hugo Woerner, for the complainants.

      Mr. Nicholas W. Kaiser, for the defendant.
   Backes, Y. C.

This is a bill to redeem land sold and conveyed under the Martin act. Comp. Slat. p. 5205. The city of Newark sold the land of the complainants for unpaid taxes to Charles Bierman in 1910. The comptroller of Newark made a conveyance to the purchaser a year later, after six months’ notice in writing of the sale to the owners and proof of service of notice. In 1919 the comptroller executed a second deed to the purchaser after a second six months’ notice in writing of the sale and proof of service. The purchaser later conveyed to the defendants. The complainants cannot, and, of course, do not assail the proceedings leading up to the sale. Their remedy in that respect is at law, by certiorari, but in equity on a bill to redeem the proceedings subsequent to the sale may be attacked. If the proceedings and the deed are not in conformity with the statute the deed is ineffective and the owner may redeem. Nugent v. Hayes et al., 94 N. J. Eq. 305.

As to the first deed: It is regular in form and in compliance with the statute. The notices are in due form and were served timely upon the owners. One is addressed to each owner and the proof of service appended to- each, and made by the purchaser, states that he served the one addressed to Catherine Milmoe “on Catherine Milmoe personally by delivering the same at her residence, 83 Littleton avenue, Newark, on the 30th day of November, 1910,” and the other, addressed to Alexander Milmoe, “On Alexander Milmoe personally by delivering the same to his wife, Catherine, at 83 Littleton avenue, on the 30th day of November, 1910.”

As to the second deed: It is also regular in form and the notices in writing to the owners are in legal shape. The proof of service annexed to each notice was made by Julia F. Wright, who deposed that she served the same on each of the owners personally February 4th, 1919, and further, “that at the time of effecting such service deponent was a clerk in the employ of Charles Bierman [the purchaser].”

The complainants held the land by the entirety and they claim that they were not disseized by the first deed because the proof of service of the first notice of sale on Alexander Milmoe does not disclose that.it was served upon him personally or by leaving the same at his place of abode with a member of his family above the age of fourteen years; and they further contend that if the deed is ineffective because of this defect in the proof, that they were not divested of their title by the second deed because the proofs of service of the second notice of sale do not show that the notices were served upon them by the purchaser of the property or his agent. The point in this respect is that the averment of Julia F. Wright, who served the notices, that at the time she made such service she was a cleric in the employ of the purchaser does not show that she was his agent. If the case were in the supreme court on certiorari to set aside the certificate of sale, or in chancery to foreclose the right to redeem the certificate of sale, the points might be regarded as well taken, for, as is laid down by the authorities and as stated by YieeC'hancellor Lewis in Harrington Co. v. Horster, 89 N. J. Eq. 271: “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 proceeding, even in the most mjnute 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. 859; Wilson v. Doe d. Bell (Va.), 7 Leigh 22.”

But this rule of law does not obtain on a bill to redeem after conveyance made. The statute so commands.

Before an owner can be divested of his title to land by a tax deed he is entitled to a written notice that his property has been sold for taxes, served upon him at least six months before the conveyance, and the notice must be served by the purchaser or his agent on the owner, either personally or by leaving the same at his place of abode with a member of his family above the age of fourteen years, and upon surrender of the certificate of sale and due proof of service of notice the comptroller must deliver to the purchaser a deed for the land. And the statute then provides (Comp. Siat. p. 5212 § S1'2) that the purchaser

“shall take a good and sufficient title to the property sold in fee-simple absolute, free from all encumbrances * * * of which the said deed shall be presumptive evidence in all coui'ts and places, and in any proceedings or actions to be by such purchaser, his heirs, legal representatives or assigns, taken, prosecuted or defended for the recovery of the possession of the property so sold as aforesaid or in the establishment or defense of his or their title, shown as aforesaid by such deed, the title shall not fail or be defeated by reason of any irregularity or formal defect in the procedure taken under this act. upon which the sale shall have been made or the title conveyed as aforesaid, * * * provided * * * it does not appear that any substantial injury was done to the owner of the property by reason of the irregular or illegal manner or method of' fixing, imposing or collecting said tax, assessment and lien.”

This legislation, imposes on the owner the burden of overcoming the presumption of title in the purchaser by showing that non-compliance with the provisions of the statute is substantial and resulted in injury to him; in other words, that the non-compliance is not a mere irregularity or formal defect in the procedure. The objections to the proofs of service of both sets of notices are purely technical. That service of each set was actually made upon the owners as directed by the statute is not disputed. That, at the time of the service of the first notice on Alexander Milmoe, 83 Littleton avenue, was his place of abode, and that his wife was over the- age of fourteen and a member of his family, is not questioned. Nor is it controverted that Julia E. Wright, who served the second notices, was at the time the purchaser’s agent for that purpose. The things to which the complainants point, and on which they rely to overcome the presumption, is that the proofs do not set forth the actual facts of service in the precise language of the statute. They do, however, set forth such facts from which, clearly, can be inferred that service was made in substantial compliance with the statute. They show that at the time of the execution of the first deed service was made on Mrs. Milmoe personally at her residence, 83 Littleton avenue, Newark, and on Mr. Milmoe by delivering same to his wife, Catherine, at 83 Littleton avenue. Eead together the natural inference is that that was their place of abode, that they were living together and that the wife was more than fourteen. At the execution of the second deed the proofs showed Miss Wright to be the clerk of the purchaser in effecting service. While a clerk is not necessarily an agent (1 Bouv. L. Dict. 505), agency is suggested. That the proofs were not statutorily perfect worked no harm to the owners; they had actual notice of the sale. The shortcomings in the proofs, so far as the owners are concerned, are mere irregularities or formal defects and cannot be taken advantage of to avoid the conveyance. The Martin act bars the owners from setting up these defects or irregularities and forbids the court to disregard the deed of the comptroller unless injury is suffered. A similar act was passed in 1881 (P. L. p. 194) to prevent the setting aside of tax assessments by the courts, law or equity, for any irregularity or defect in form or illegality in the assessment if the person assessed was in fact liable to taxation, and the court of appeals held that its effect was to destroy, root and branch, the power to defeat such a proceeding except on a meritorious ground, and that the express purpose of the law was to prevent for the future the frustration of taxation on the ground of erroneous procedure. Conover v. Honce, 46 N. J. Law 347; Jones v. Landis Township, 50 N. J. Law 374.

If the first deed of the comptroller was not efficacious to convey the title because of the inadequacy of the proof of service of notice, it was not a legal obstacle to the execution of the second deed, which was attended by proofs of service more nearly perfect.

The bill will be dismissed, with costs.


text:
    Alois Alt, petitioner, v. Caroline Rose Alt, defendant.
    [Decided October 30th, 1923.]
    1. Where a husband files a petition for divorce on the ground of desertion, and the wife files a counter-claim charging extreme cruelty, and praying for maintenance, she must sustain her charge by such quality of proof as would entitle her to a divorce if she were the petitioner.
    2. Evidence examined and held that the defendant has established her charge of extreme cruelty, and is entitled to a decree for maintenance.
    On final hearing. On petition for divorce and counterclaim.

      Mr. John F. Faughnan, for the petitioner.

      Messrs. Dairymple & Campbell, for the defendant.
   Backes, Y. C.

This is a petition for divorce for desertion. The parties were married in 1901. They lived together until 1917, when the defendant left. Her desertion was willful, continued and obstinate for two years, unless she can substantiate her 'charge of extreme cruelty, and this she must sustain by such quality of proof as would entitle her to a divorce were she the petitioner. Rogers v. Rogers, 81 N. J. Eq. 479. By counter-claim she sets up abandonment and refusal to support and prays maintenance under section 26 of the Divorce act.

When they were married the husband worked in a brewery and the wife was a maid. He continued to labor in the brewery until five years before the desertion, after which he kept a saloon in Newark. He tended bar and she did the vile work of keeping the barroon clean. A year after they were married she left him because, as she says, a night or two before he came home drunk from a party, struck her in the stomach and threw a lighted lamp on the floor behind the stove, but not at her, and that she feared a recurrence because he was preparing to go to another party. He persuaded her to return shortly afterwards. They then lived together until 1915 without any outstanding incidents except two, to be presently alluded to, when she again left because, as she says, he charged her with unfaithfulness. It seems they had just installed a telephone and her brother-in-law, in a spirit of fun, called her up early one morning. She saj^s her husband had been up all night and was sitting with a bottle of whiskey before him, drinking, when the ’phone rang, which she answered, and upon explaining that it was her brother-in-law who called he refused to believe her and gave voice to his suspicion that the call was not for an honest purpose, and ordered her to pack her clothes and get out before he blew her brains out. She was away a short time and again he induced her to return. She quit finally in 1917, and her reason, as she tells it, is that he kept an opossum in the barroom, which he refused to remove after she had repeatedly complained that she feared the animal. She says that she became obsessed with fear of the beast and its presence tortured her night and day, awake and asleep. He finally removed it, and that night, she says, after her husband had closed the saloon, he came to the bedroom in an ugly mood and upbraided her, saying: “I will finish this thing. I will see whether you are going to have your way about things or whether I am going to have mine. [Meaning about having the opossum in the barroom.] So he took and went for me; grabbed a revolver and went to hit me; I clung to him and begged that he not do harm to me and finally, when he quieted down, I got to bed and so did he. I made up my mind then and there if I lived until the day he went out and I would see my way clear to get'out of that house I certainly would go never to return.” She left a few days later while her husband was away gunning.

The two additional affairs related by her are: When her son was a boy his father struck him in the face and as he ran bleeding to her, and upon her remonstrating with her husband, he beat her. On another occasion, during a quarrel, she says, he chased her from the house, she in her night dress, and that he called out of the window to her to come back or that he would shoot her, and that in fear that something might happen to her boy she went back.

The background of her picture is a life with a drunken husband, brawls, abusive and vile language, cursings, beatings and threats of beatings, threats against her life, misery and despair, and from which, she says, there was no relief except by the step she finally took.

The son of the couple, now a young man, describes the life of his parents as one constant quarrel, and he puts all the blame on his father, and he corroborates his mother in the two matters last above related. He wus not at home when his mother left in 1917. There is also slight corroboration from others, in that, when the husband solicited his wife’s return upon three occasions after she left, he admitted ill-treatment and threats against her life, and that he promised reformation.

The husband makes a general and sweeping denial, and says that none of the alleged incriminating occurrences ever took place, and he points to the evidence of patrons °of the saloon and some of the neighbors who gave testimony that to all appearances the couple were on friendly relations and seemed to get along as well as most married folks; that they never heard the wife complain. In refutation of his wife’s story he also calls attention to the fact that she did not leave until three or four days after the alleged assault in 1917, and that about a month before he had transferred his property and his bank account into their joint names. The testimony of his patrons and the neighbors is negative. Wives seldom parade their troubles. The transfer of the property was only just—the wife had helped to earn it; and the delay in her final departure was simply the awaiting of a favorable opportunity to carry out the purpose fixed in her mind on the night of the assault. While the occurrence of that night is not specifically corroborated, I find sufficient corroboration in the corroboration of much, if not all, of the rest of her tale of ill-treatment. Orens v. Orens, 88 N. J. Eq. 29; Lasker v. Lasker, 91 N. J. Eq. 352.

Extreme cruelty as defined by the authorities is established. Csanyi v. Csanyi, 93 N. J. Eq. 11; Cavileer v. Cavileer, 94 N. J. Eq. 160.

The petition will be dismissed and maintenance will be awarded the wife, with costs.


author: Baokes, V. C.

text:
    John J. Barry, complainant, v. David Tunick et al., defendants.
    [Decided October 22d, 1923.]
    1. A judgment at law establishing an easement of right of way is res adjudieata in a second suit, involving the same issue, as to parties privy in estate to 'the parties in the sure at law.
    2. Where the parties are not privy in estate a former recovery is not a defense to the second suit, though the same issues are involved.
    3. Twenty years adverse user establishes an easement of right of way.
    On final hearing.

      Mr. Oharles F. LigMhipe, for the complainant.

      Mr. Henry T. Sleison, Mr. William H. Osborne, Mr. W. Bradford Smith and Mr. Louis B. Lesser, for the defendants.
   Baokes, V. C.

This is a bill to qniet the title to land. The question involved is the right of the defendants to the use of a twelve-foot wide carriageway over the complainant’s land as a means of ingress and egress to and from the rear of their premises. The complainant’s lot is on the south side of Main street, Orange, one hundred and forty and five-tenths feet front by three hundred and sixteen feet in depth, excepting therefrom the three lots of the defendants Tunick and Reznik, Krasner and Long, seventy feet front by one hundred and fifty feet in depth. Tunick and Reznik’s lot, twenty-five feet in width, adjoins the carriageway on the east. Krasner’s lot, twenty-two and five-tenths feet, adjoins theirs, and next to that is the lot of Long. The title to the entire premises was in one Allen, in 1866. They were used by him and previous owners as a tavern. The carriageway was used to reach the stables in the rear of the lot. It is still used for that purpose. When it was opened is beyond memory. One witness recalls its existence as far back as 1857.

On October 1st, 1866, Allen conveyed to one Robotham the now Tunick and Reznik lot. On the same day he conveyed to one Coon the now Ivrasner and-Long lots. In the deed to Robotham it was agreed that Allen should maintain for himself, Robotham and Coon, the carriageway twelve feet in width, extending from Main street to the rear of Robotham’s lot, and further, that Coon should have a right of way over the rear of Robotham’s lot' to his premises. The deed to Coon contained a like covenant respecting the carriageway. Prior to 1870 Robotham and Coon erected three store buildings covering their entire frontage; so that the only means of drive access to the rear of the properties is over the carriageway. When Allen conveyed to Robotham and Coon his property was subject to a mortgage of $10,000 held by one Reeve, who at that time released the three lots, without :eference, however, to the carriageway. In 1876 Reeve filed a bill to foreclose his mortgage, to which the then owners of the three lots were made defendants because of their interest in the carriageway. A decree was duly entered and the property was sold in 1877 to the complainant’s predecessor in title. The property was sold in parcels, the third parcel being the carriageway, described as twelve feet in width and one hundred and fifty feet in depth. Despite the bar of the decree the owners of the defendants’ lots continued to use the carriageway as before, and their successors in title have done so down to the filing of this bill, November 9th, 1921, with a single interruption in 1907, when the complainant obstructed and closed it. One Poster, then the owner of the Robotham lot, brought an action at law in trespass and recovered a six-cent verdict, on which judgment was entered. Brigetta Kazenmaver, who had a life estate in the Krasner lot, also sued in trespass and recovered a judgment for six cents. The records show that the right to the easement was the only thing put in issue. Mrs. ICazenmayer has since died. The chains of title of the complainant and defendants are undisputed and in the title deeds of the defendants, with possibly one or two exceptions, the agreement as to the use of the carriageway originally set out in the deeds from Allan are recited or referred to.

The right of the defendants Tunick and Reznik to the use of the carriageway is established by the judgment at law recovered by Foster, to whom they are privy in estate, and is not open to attack in this suit. Manning v. Port Reading Railroad Co., 54 N. J. Eq. 46. The easement involved in the law suit is the one defended here. At the outset of the hearing complainant’s counsel admitted this, but was permitted to withdraw the admission and thereupon the fact was established and is not now disputed.

ICrasner does not enjoy the advantage of the Kazenmayer judgment. He was not privy in estate to her. She had but a life estate, which is extinct.

Aside from the judgments at law I think the defendants have established their rights to the carriageway by adverse user for more than twenty years. Their contractual rights, acquired by the covenants in the Allen deeds, of course, came to an end in 1877 by the bar of the foreclosure decree; but for thirty years thereafter, and until 1907, when the complainant interfered, the respective owners of the defendants’ lots used it under a claim of right. The use was open, notorious and adverse or hostile, to the knowledge of the owners of the servient land. It may be true, as complainant’s counsel contends, that the carriageway was originally opened by the owner of the land for his own convenience and was common to those who cared to enter the tavern property and that such a user was permissive, from which no adverse rights could arise; but here the owners of the defendants’ lots used the carriageway for a single purpose—to enter the rear of their lots; first by agreement and then, when that was judicially abrogated, for more than twenty years under a claim of right, adverse and hostile to the owners, of which he had notice and in which he is presumed to have acquiesced. Cobb v. Davenport, 32 N. J. Law 369, 386.

The dimensions of the easement, it seems to me, a-re fixed by the original description of the carriageway and that the defendants’ adverse user was co-extensive with that description.

The complainant’s decree will fix the rights of the defend' ants accordingly. Costs to the defendants.


author: Backes, Y, C.

text:
    Edward G. Vail, Jr., complainant, v. Israel Diamond, defendant.
    [Decided November 2d, 1923.]
    1. A recognizance given in a suit not criminal in a county court does not bind land in another county even when a certified copy of the recognizance is filed and recorded in the county where the land lay.
    2. A writ of attachment binds only land owned by the defendant in attachment, and does not affect land conveyed by - him before the writ was issued, though the deed was not recorded prior to the levy.
    3. Where land was conveyed by a father to a son for the purpose of enabling the son to qualify as a surety, and immediately reconveyed by the son to the father, this is a -palpable fraud on the son’s creditors which equity will set aside upon bill filed for that purpose.
    On final hearing.

      Messrs. McCarter As English (Mr. George M. McCarter), for the complainant.

      Mr. John A. Bernhard, for the defendant.
   Backes, Y, C.

This is a bill to quiet the title to land in Union county. By1 deed dated August 4th, 1920, recorded August, 9th, 1920, the complainant conveyed the land to his son, Clinton E. Vail, for the purpose of enabling the son to qualify as surety on a recognizance for $5,000, given August 9th, 1920, by Herman Bartsch to the defendant herein, Israel Diamond, in a suit for fraud brought by Diamond against Bartsch in the Essex county circuit court. The suit went to judgment in favor of Diamond for $8,000, and Bartsch and his surety defaulted on their recognizance. On the same day that the complainant conveyed the land to his son, the son made a reconveyance thereof to his father, but the deed was kept off record until June 21st, 1921.

A certified copy of the recognizance was filed and recorded in the clerk’s office of Union county January 11th, 1921.

On April 4th, 1921, Diamond brought an action in attachment in the supreme court against Clinton E. Vail, the surety, based on the debt established of record by the recognizance, and the sheriff of Union county levied upon the land. An auditor was appointed, judgment was duly entered and upon an order to sell dated September 24th, 1921, the auditor, after proper advertisement, struck off and sold the land to the defendant, Diamond, and conveyed it to him by deed, which was-recorded December 22d, 1921.

1. The defendant, Diamond, has no claim by virtue of the recognizance. By the recognizance Clinton E. Vail pledged his land and subjected it to a lien to the amount of the bail, enforceable by scire facias in the suit in which it was given. The pledge or lien attached only to land within the jurisdiction of the circuit court, and which that court could enforce by its own process. State v. Stout, 11 N. J. Law 124; 11 N. J. Law 362. The certified copy of the recognizance filed and recorded in Union county is a nullity. I have searched and have not found any statute authorizing the filing of a recognizance in a foreign county and thereby imposing a lien upon land. There is a statute to that effect but it applies only to bail in criminal cases. Comp. Stat. p. 1828 § 25.

2. The defendant, Diamond, took nothing in the nature of a legal estate in the land by his attachment and the sale and conveyance to him by the auditor, because at the time the writ was served (April 14th, 1921) Clinton E. Tail, the defendant therein, had, before that time, conveyed the land to his father. The levy of an attachment binds the property and estate of the defendant in attachment only; not property previously conveyed by him. That the deed was unrecorded at the time of service is immaterial. Our Conveyance act (Comp. 8tat. p. 1553 § 5k) does not give priority to an attachment over a previous but unrecorded deed. Garwood v. Garwood, 9 N. J. Law 193; Campion v. Kille, 14 N. J. Eq. 229; 15 N. J. Eq. 476; Brink v. Flannagan, 87 N. J. Eq. 630. While the defendant, Diamond, has no legal estate in the land, yet I think he has an equitable interest which he can perfect and set up. The immediate reconveyance to the father by the son after the father conveyed the land to the son to qualify him as surety was such a palpable fraud that equity will set it aside, as was done in Bourgeois v. Risley Real Estate Co., 82 N. J. Eq. 211. The recognizance was in contemplation. A voluntary conveyance given in anticipation of becoming indebted is fraudulent. Beekman v. Montgomery, 14 N. J. Eq. 106; Mellon v. Mulvey, 23 N. J. Eq. 198; City National Bank v. Hamilton, 34 N. J. Eq. 158.

I will hold the cause to enable the defendant, Diamond, to file his bill to set aside the conveyance and to set up the facts by a supplemental answer. Twenty days will be given for that purpose.


text:
    Emely Allen Elfreth, executrix, complainant, v. Charles J. Allen et al., defendants.
    [December 6th, 1923.]
    1. When a foreign corporation, not suable in this state, is.brought into court by service of process in conformity with section 88 of our Corporation act, the question of jurisdiction is properly raised by a motion to dismiss the bill and not by by a motion to quash the service.
    2. An allegation in a bill against a foreign corporation not doing business in this state, that a deed of assignment of patent rights to the corporation was signed in this state by the signors, does not amount to a charge that such foreign corporation made a contract in this state in respect to which it may be sued in this ,state.
    3. Where the recovery sought against a foreign corporation not doing business in this state is in personam for damages for unlawful use of patents, a prayer for annulment of the deed assigning such patent to the corporation is not sufficient to hold the bill, where it is not alleged in, and there is no inference to be drawn from the bill that the deed is a contract or the result of a contract made in this state in respect of which the corporation may be sued in this state.
    On motion to quash the service of process.

      Mr. Peter Backes, for the motion.

      Mr. Henry H. Wittstein, contra.

   Backes, V. C.

The complainant filed this bill as one of the executors of the estate of Samuel L. Allen, deceased, against her co-executors and the S. L. Allen & Companjq Inc., to set aside a deed of assignment of certain letters patent belonging to the estate, executed by her co-executors to the company, and for an accounting by the company of the profits made by it from the use of the patents, and also to charge such profits against

her co-executors, on the ground that the assignment was voluntary, without consideration and a fraud on the estate. The S. L. Allen & Company, Inc., is a corporation of the State of Pennsylvania and its plant is located at Philadelphia. William H. Roberts, its president, resides at Moorestown, in this state, and, subpoena ad respondendum, directed to the company', was served upon him at his residence. Hnder a conditional appearance the company moves to quash the service on the ground that it is not ameanable to the jurisdiction of this court, in that it did not and never has engaged in business in this state. Service was correctly made in the manner prescribed by section 88 of our Corporation act. Comp. Stat. p. 165S.

Motion to quash service is proper only where service is not made in compliance with the statute. Prior to the Chancery act of 1915, which abolishes pleas and demurrers and substitutes motions, the question of jurisdiction here presented could only be raised by plea or demurrer; by demurrer if lack of jurisdiction appeared on the face of the bill. Wilson v. American Palace Car Co., 65 N. J. Eq. 730; Puster v. Parker Mercantile Co., 70 N. J. Eq. 771, 1 Dan. Ch. Pr. (6th ed.) 550m. This motion, which is brought on order to show cause, should have demanded the judgment of the court whether the company should be compelled to make answer, and for a dismissal of the bill, instead of a motion to quash the service; but on the hearing the motion was treated as in the nature of a demurrer. It was also conceded that the S. L. Allen & Company, Inc., was a foreign corporation and that it had never transacted business in this state.

The bill alleged that the deed of assignment was signed at Moorestown, in this state, by the complainant's co-executors, and the complainant contends that therefore, upon the authority of National Condensed Milk Company v. Brandenberg, 40 N. J. Law 111, wherein Mr. Justice Dixon said that “Since the case of Moulin v. Insurance Co., 4 Zab. 222, and 1 Dutch. 57, it must be regarded as the settled law of this court that if a corporation makes a contract in a state other than in which it was chartered, it thereby submits itself to the jurisdiction of sucli foreign sovereignty so far as to be liable to suit therein in regard to that contract when summoned according to the laws of the state,” the company had submitted itself to this jurisdiction. My notion of the Moulin’s Case is that it does not go so far; but be that as it may, the present case as made by the bill does not fall within Mr. Justice Dixon’s interpretation. That the assignors signed the deed of assignment in this state does not charge that the company made a contract in this state.

Furthermore, this suit is not a suit in regard to a contract The recovery sought against the company is in personam for damages for the unlawful use of the patents. The prayer for the annulment of the deed is not sufficient to hold the bill. It is not alleged and there is no inference to be drawn from the bill that the deed is a contract or the result of a contract.

A decree will be advised that the bill be dismissed as against the company.


text:
    Ralph W. Potter et al., complainants, v. Ernest J. Steer et al., defendants.
    [Decided November 16th, 1923.]
    1. A statutory acknowledgment, duly certified, is an essential part of a married woman’s deed to convey her lands.
    2. A certificate of acknowledgment attached to a deed is only prima facie evidence of its contents, but to establish its untruth and overcome the strong presumption of its integrity the proof must be clear, satisfying and convincing.
    3. Where an officer has certified the acknowledgment to a deed, and the instrument has passed from his custody, his powers are exhausted, and, in the absence of statutory authority, he cannot thereafter correct the certificate or make a new one without a re-acknowledgment by the grantor.

      4. Where a certificate of acknowledgment of a married woman was faulty, and another notary made a second one in proper form, but the grantor denied appearing before the notary, and acknowledging the deed, evidence examined and held that the second certificate of acknowledgment was false.
    On final hearing.

      Messrs. Lum, Tamblyn & Collier (Mr. Ralph Lum), for the complainants. ' "

      Messrs. Osborne, Cornish & Scheclc and Mr. Edwin G. Adams, for the defendant, Mrs. Steer.
   Backes, V. C.

This is a bill to foreclose a deed of mortgage given by a married woman, on her separate estate, to secure her husband’s obligation. The defense is that the instrument was not acknowledged by her as required by the statute, and that the certificate of acknowledgment, in due form, attached to the document and executed by a New York notary, is untrue. It is settled law that a statutory acknowledgment, duly certified, is an essential part of a married woman’s deed to convey her lands. Brady v. McHugh, 94. N. J. Eq. 336. Section 39 of the act concerning conveyances as amended (P. L. 1918 p. 119) provides that:

“No estate or interest of a feme covert in any lands, tenements or hereditaments, lying and being in this state, shall hereafter pass by her deed or conveyance without a previous acknowledgment made by her before one of the officers mentioned in the twenty-second, twenty-third and twenty-fourth sections of this act, as the case may be, that she signed, sealed and delivered the same as her voluntary act and deed, such officer being satisfied that she is the person named in such deed or conveyance and 'having first made known to her the contents thereof, and a certificate thereof written on, or under, or annexed to the said deed or conveyance, and signed by the officer before whom it was made,’’ &c.

It is also well settled that the certificate of acknowledgment is only prima facie evidence of its contents, and that it may be shown to be untrue. Wright v. Wells, 12 N. J. Law 131; Marsh v. Mitchell, 26 N. J. Eq. 497; Whalen v. Manchester Land Co., 65 N. J. Law 206; Brady v. McHugh, supra. But to establish its untruth and overcome the strong presumption of its integrity the proof must be clear, satisfactory and convincing. The question is, has the defendant sustained the burden thus put upon her? Mrs. Steer’s husband, Ernest J. Steer, for many years and up until about the time the deed was given was a highly paid official of the Barrett Company of New York. As a side line he dabbled in the stock market. He played with his own money and also with that of a few associates and friend's who had confidence in his judgment, was imprudent and mingled their funds with his own, and lost all. He compromised with them all except Cooney. He had nothing left for him. Criminal proceedings for embezzlement, although not exactly threatened, were in the air. To appease Cooney, Steer hurriedly had his New York lawyer draw the deed conveying his wife’s property in Montclair— her home—to Potter, the complainant, in trust, to secure Cooney from any damage he would sustain if Steer did not deliver to him certain stocks (stocks that Steer had bought for Cooney) within a given period. Steer that evening explained, in a way, to his wife the meaning of the deed, that it was only a makeshift or a temporary security to tide him over with Cooney and that it would come to nothing. He was hopeful, and I think believed, that his account with his brokers would show enough in his favor to pay off Cooney. In this he was later disappointed. Mrs. Steer was apprehensive of losing her home and demurred and protested, but finally gave in and executed and acknowledged the deed that same night before one Treacy, a notary public in Newark, and Steer mailed it at once to Potter, at Erie, Pa. Treacy’s certificate of acknowledgment, drawn by the New York lawyer, was not in statutory form and Potter’s counsel in Erie forwarded the deed with a correct certificate attached to their New York correspondent, Mr. Link, a lawyer, for re-execution. The deed and the Treacy certificate bear date September 30th, 1921. The second certificate is dated October 13th, 1921, is subscribed by one Keelen, a New York notary, and purports to have been executed in New York. Mrs. Steer testified that she did not appear before Iieelen on October 13th, or any other time, and acknowledge the instrument. Mr. Steer says she was not there, and Keelen, the notary, says he has no independent recollection of the occurrence. Keelen’s explanation is that if Mrs. Steer did not in fact appear before him the deed must have been surreptitiously inserted among his other papers of like character by Steer, and that he signed it in the ordinary routine. I hardly think it happened that way, because the venue to the certificate as originally written was “State of New Jersey, Essex County,” over which Keelen, by rubber stamp, put “State of New York, County of New York,” and attached to his signature, by rubber stamp, his official title and impressed his official seal. This preciseness of conduct, it seems to me, indicates circumspection ana care and not imposition. Steer says it happened in this way: Link asked him on the day of ihe date of the certificate, October 13th, 1921, to have the deed properly acknowledged, and upon stating that his wife was not in town and that he could not go out to Montclair and get her, Link said: “Well, you can get that fixed up. Mr. Keelen will fix it up for you,” and that his recollection is that Link gave him only the sheet containing the new certificate; that he took it to Keelen, who was in the same building, a few floors removed; asked him to fix it up; that Keelen attested it and that he returned it to Link within twenty minutes. Link testified that he received the document with the blank form of acknowledgment attached from the Erie lawyers October 5th; that he immediately gave it to Steer to have it executed and that it was returned to him October 15th, and that he did not tell Steer to go to Keelen and have it fixed up. I will not attempt to reconcile the -conflict in the testimony of these two witnesses; but considering Mrs. Steer’s revolt before the first execution in the Newark notary’s office, and her reaction, and that Steer undoubtedly shrunk from the ordeal of a second effort, for, according to Link, Steer came to him some time after he had the deed and wanted to know if his, Steer’s, secretary could not witness it, and being told that she could if Mrs. S+eer acknowledged it before her, he said he didn’t want to do it that way, it becomes more than a probability that he did not again approach his wife, but took one of the two shorter cuts already related. As to Mrs. Steer, I doubt if she could have been persuaded a second time. Now, in whatever manner the certificate was procured; whether Keelen signed it to accommodate Steer, or whether he was imposed 'apon by Steer smuggling it among his papers, the outstanding fact is that Mrs. Steer did not appear before him and acknowledge the deed. Pier testimony on this point stands unimpeached. She appears to be a woman of refinement and high character, and the frank and candid manner in which she testified impressed me that she was telling the truth. She was not seriously cross-examined on this vital point, and, I think, because counsel was also impressed with her honesty. Then there are circumstances that lend support to her denial. Keelen has been for many years a clerk in the Barrett company. His duties seem to have been the taking of affidavits and acknowledgments for the company, its officers and emnlcyes. The Barrett company was tor many years at 17 Battery place, New York. On August 1st, 1921, they moved to 40 Rector street, where they occupied a number of floors. Steer was relieved of his position with the company September 1st, 1921, probably due to his misfortune in Wall street. He took an office at 179 Broadway, although for a month or so he continued to go to 40 Rector street to attend to odds and ends. His office and Keelen’s were not on the same floor. Mrs. Steer said she was never in that building, and as to. this I think she could not be honestly mistaken, and she says further that she had not seen Mr. Keelen in five years. Keelen said that he took acknowledgments of deeds for Mrs. Steer when the company was at Battery place, but he had no recollection of having seen her at 40 Rector street. Mr. Adams, Mrs. Steer’s attorney, who made investigation preliminary to the filing of the answer in this suit, says that Keelen told him he did not see Mrs. Steer after September 1st, 1921. Keelen admits saying so with the qualification that he did not recollect seeing her.

It was suggested, but not pressed, that Keelen might have taken Mrs. Steer’s acknowledgment in New York elsewhere than at 40 Rector street; but it seems to me that such an unusual occurrence would have been readily recalled by the notary. Furthermore, Keelen used his office paraphernalia of rubber stamps and official seal on the certificate and it is not at all likely that he carried them about on his person.

The testimony satisfies me that the cenificate is untrue. Whether it was procured by the fraud of Steer or voluntarily made by Keelen to accommodate Steer, the deed is a fraud upon Mrs. Steer and a fraud upon the record.

In three of the four cases in this state brought to my attention, in which the certificates were attacked because untrue, the proofs were inconclusive 'and therefore insufficient to overcome the presumption created by the certificate. Tooker v. Sloan, 30 N. J. Eq. 394; Black v. Purnell, 50 N. J. Eq. 365; Gould v. Hurley, 75 N. J. Eq. 512. In Brady v. McHugh, supra, Vice-Chancellor Fielder found the certificate to be untrue and invalidated the mortgage.

At the trial Treacy, the Newark notary, subscribed to a new certificate, drawn conformable to the statute, and annexed to the deed. This is not curative. Delivery of a deed is essential to the passing of title to land, and the statute relating to acknowledgments of deeds by married women requires a previous acknowledgment and that the certificate accompany delivery. Furthermore, the notary was without authority at the'time to make the certificate. In 1 Corp. Jur. 871, it is said that “according to the weight of authority, where the officer has certified the acknowledgment, and the instrument has passed from his custody, his powers are exhausted and, in the absence of. statutory authority, he cannot thereafter correct the certificate or make a new one without a reacknowledgment by the grantor.” The text is supported by the authorities cited. In Bours v. Zachariah, 11 Cal. 281, one of the cases cited, the subject is learnedly discussed by Justice Baldwin of the California supreme court, in which Justice Field, afterwards of the United States supreme court, concurred. The conclusions are concisely set forth in the headlines thus: “A notary derives his power to take and certify acknowledgments to deeds from the statute. He acts as under a special commission for that particular case—clothed with limited statutory power. He is to take the acknowledgment and certify it as part of the same transaction. After taking the acknowledgment and delivering the return his functions cease and he is discharged from all other authority and cannot alter or amend his certificate.”

The bill will be dismissed as to Mrs. Steer. There may be a decree as against Mr. Steer and his inchoate right of curtesy. Armstrong v. Ross, 20 N. J. Eq. 109, 120; Hackensack Trust Co. v. Tracy, 86 N. J. Eq. 301. This execution will be withheld until the curtesy becomes consummate. This meager relief may be rendered altogether nugatory. Bucci v. Popovich, 93 N. J. Eq. 121; affirmed 511.