text:
    Anna Dusenberry, complainant, v. Helen Ibach's Executors, defendants.
    [Decided February 11th, 1925.]
    1. The court of chancery may enforce an agreement for informal adoption of a child where there is sufficient consideration tQ sustain it.
    2. In a bill for specific performance, in which the complainant claims the rights of a natural child against the executors of the woman with whom she had lived, she not being the child of the defendants’ testator, such claim should be established by clear and convincing evidence, and where the proofs merely attempt to show an agreement with the husband of the defendants’ testator, who died before his wife, and left her all his property, and when the wife died she left a legacy to the complainant, the proofs are not sufficiently clear to justify a decree, especially as there was surprising delay and lack of diligence in making the claim.
    On bill, &c.

      Messrs. Morrison, Lloyd & Morrison, for the complainant.

      Messrs. Maclcay <& Maclcay, for the defendants.
   Lewis, V. C.

This is a bill for specific performance of an alleged agreement between Hugo Ibach and Helen Ibach, and Otto Schneppendahl, father of the complainant. The complainant claims the rights of a natural child in the estate of Helen Ibach, and brings this action against her executors. In re Book, 90 N. J. Eq. 549 (at p. 552).

Complainant contends that the case is within the principles laid down in Van Dyne v. Vreeland, 11 N. J. Eq. 370, but the evidence in the instant case is entirely different. The learned vice-chancellor said; in his resume of the testimony in the Van Dyne Case:

“The complainant has been greatly wronged. He has devoted the prime of his life to the service of the defendant Vreeland. He served him twenty-five years upon the faith of an agreement made at the solicitation of the defendant with the complainant’s father, and for such services the complainant should be provided for at the defendant’s death as his own son. He was deprived of a participation in his father’s property upon the assurances of the defendant made to the father that he need make no provision for his son, because the defendant, in fulfillment of his agreement, would stand toward him in the place of his parent, and, as he had stipulated,, would provide for him by will. He received the complainant into his family upon the terms of the agreement, and the services of the complainant were rendered and were accepted upon the expectation of that agreement being carried out in good faith. The defendant has repeatedly acknowledged his obligation to fulfill the agreement by making different wills from time to time in accordance with its provisions and the understanding of the parties. He has verbally renewed the agreement frequently with the complainant and induced him to continue his services, assuring him that the fulfillment of the agreement by him should be a reward to the complainant for his fidelity. Eor twenty-five years the defendant accepted the services of the complainant upon the understanding that the agreement was the basis of the relationship existing between them. Now, the defendant, for the sole purpose of defrauding the complainants, has fraudulently put out of his hands all of his property out of which he was to make the provision which he had stipulated to make by the agreement.”

Another situation is presented by the facts in this case. The complainant entered the home of Hugo and Helen Ibach as an orphan and lived with them until her marriage. She went there after the death of her parents and was reared and educated by the Ibachs. She was treated as a member of the family, secured an excellent home, and was the object of their tender consideration, attention and a beneficiary generally. There was no formal adoption, but this court may enforce an agreement for informal adoption of a child where there is sufficient consideration to sustain it. Drake v. Lanning, 49 N. J. Eq. 452. In this ease, however, I find m> consideration upon which the complainant can rely, which would warrant a decree in her favor against the executors of Helen Ibach. No fraud was practiced on the complainant, but her condition in life was improved by her transfer'to the Ibach home. She married from there, and, significantly enough, gave the name of Anna Schneppendahl in obtaining the marriage license.

The testimony heard by me was very brief, and at its conclusion the defendant rested without tendering any proofs, -and the bill was dismissed. A careful perusal of this evidence fails, to my mind, to reveal any agreement enforceable at this time against the executors of Helen Ibach. The right of the complainant must, of course, be clearly established to entitle her to the remedy now sought in her behalf. The consideration shown, and the generosity of the Ibachs to the complainant, and the surrounding circumstances generally, might lead a court to withhold specific performance at this time. It is true that an attempt was made to show an agreement on the part of Hugo Ibach, the husband of Helen Ibach, with Otto Schneppendahl, the father of the complainant, hut I am not satisfied that the proofs offered establish it, although at the best it is simply between Hugo Ibach and the father of the complainant. There was no ratification by Helen Ibach. It rests largely on the testimony of a Mrs. Hill, who says that at the deathbed of the father of the complainant, about thirty years ago, she heard him say that if anything happened to him Mr. Ibach might have his child as his own, and that Mr. Ibach said he would gladly take her and she would be his own. Others testify to the pleasant home life of the complainant with the Ibachs and to their constituting a family group. Hugo Ibach predeceased his wife, and in his will he made no provision for the complainant, but left his entire estate to his widow, Helen Ibach. He made no mention in this will of any agreement, and upon the death of his widow, Helen Ibach, she left a legacy to the complainant and to the complainant’s child and made other bequests. It is quite apparent that she had no knowledge of the alleged agreement.

Complainant has been guilty of surprising delay and lack of diligence, unless an attempt is now being made to establish a false claim. She knew at the time of Hugo Ibach’s death that he had made no provision for her in his will, or any mention of an alleged agreement, but now that both the Ibachs’ lips are sealed in death, she institutes the present proceeding.

The hill should he dismissed.


source: Caselaw Access Project

author: Lewis, V. C.

license: Public Domain

text:
    William F. Glasser & Company, complainant, v. Peter A. Muencks and Anna Muencks, his wife, defendants.
    [Decided May 13th, 1926.]

      1. A declaration of no offset to a mortgage is not required to be in wriring.
    2. Where the owner of land had made a verbal declaration to the effect that a mortgage thereon was a good mortgage and that he owed the money on it, and had also asked several extensions of the time of payment of part of the principal thereof, saying nothing about any deductions claimed against the full amount of the mortgage, such actions clearly indicate that the owner had in mind no valid claim for deductions from the principal thereof.
    On pleadings and proofs.

      Mr. John L„ Griggs, for the complainant.

      Mr. Addison P. Eosenkrans, for the defendants.
   Lewis, V. C.

The hill in this ease is filed to foreclose a mortgage given by the defendants to the United States Building Corporation to secure the sum of $14,000, payable in quarterly installments until the payments aggregated a certain sum, with interest. The defendant Muencks, as owner, had entered into an agreement with the United States Building Corporation, whereby the building corporation was to erect a building for the defendant. The contract was in writing and was filed in the office of the county clerk, pursuant to the statute, and so the building was subject to a mechanics’ lien only at the instance of the contractor. The mortgage under foreclosure is a second mortgage, and was given in the course of the construction of the building, to enable the building corporation to finance its operations and complete the building. There was a first mortgage placed by a building and loan association. Under the terms of the building contract the mortgage for $14,000 was to be given by the owner to the contractor upon the completion of the building. When it became apparent that the contractor could not finish the contract without financial aid, an arrangement was made between it and the owner whereby the mortgage in question for $14,000 was given by the owner to the contractor. This was in advance of the time fixed by the contract for the execution and delivery of ^ the mortgage, for the building had not yet been completed. The Paterson National Bank took an assignment of the mortgage and advanced $5,000 to the contractor upon it. Later, this mortgage was assigned by the bank to the present complainant at a discount from its face value.

When the complainant was considering the purchase of the mortgage from the bank, one of its officials said that he interviewed the defendant Peter A. Muencks with regard to the validity of the mortgage, and that he was assured by that defendant that it was a good mortgage and that he owed the money on it. A written declaration of no set-off appears not to have been exacted at that time, but the complainant, relying upon that verbal statement of the defendant, thereupon took an assignment of the mortgage from the bank.

When the first installment on the mortgage became dtie a demand for its payment was made on defendant by the complainant, but the defendant asked for an extension of time until the date when the second installment fell due, stating that he would then pay both installments together. When the second installment fell due the defendant made a request for a further extension. Later, another official of the complainant company interviewed the defendants with regard to the payment of the installments due, and he says that Muencks simply asked for further time in which to make the payments. Both officials of the complainant company testified that upon none of these occasions did the defendant say anything to them about any deductions claimed against the full amount of the mortgage. Finally, howev'er, the defendant referred the complainant to his attorney, and upon interviewing him they learned that the defendant claimed that he had paid certain claims based upon stop-notices which had been filed with him after the mortgage was given, and that he had had an arrangement with the contractor whereby he should be permitted to deduct from the amount of the mortgage any amount so paid on stop-notices, if such stop-notices should thereafter be filed with him.

In the present suit there is no dispute with regard to the right of the complainant to foreclose the mortgage, but the defendants insist that they are entitled to deduct from the amount of the mortgage the sum total of the payments made on the stop-notices.

Under the provisions of the Mechanics’ Lien act, the owner would be liable to creditors who filed stop-notices if payments had been made to the contractor in advance of the terms of the contract. The giving of” this second mortgage for $14,000 prior to the time fixed by the contract was, in effect, a payment in advance of the time so stipulated, and, under ordinary circumstances, if the owner saw fit to make such á payment without exacting releases of claims from those who furnished materials, or performed labor on the building, he would be, nevertheless, liable to pay the stop-notices from his own funds.

In this case, however, the owner claims that his arrangement with the contractor entitled him to deduct from the mortgage the amounts of these stop-notices paid by him, and that that is an equity between himself and the contractor, which he can assert against the assignee of the mortgage. The complainant, however, contends that he was careful to inquire of the owner about the validity of the mortgage before he took an assignment of it, and that he was assured by the owner that it was a valid mortgage, and that he owed the money upon it. If this is true, then the present holder, of the mortgage is protected as against the equities between the mortgagor and the contractor. It would not be necessary that such a declaration of no set-off should be in writing, but as to whether or not there was such a declaration, without its being in writing, simply makes the proof of it more difficult.

I am inclined to the conclusion that the actions of the defendant Peter A. Muencks, at the times that the demands for the payments of installments were made, clearly indicates that he had in mind no valid claim for the deduction which he now insists should be made; otherwise, he certainly would have informed the officials of the complainant company of his right in that respect. The testimony of the official of the complainant company who made the inquiry prior to the taking of the assignment is forceful and unequivocal. In addition to that, we have the evidence of his co-official to the effect that he also made inquiry with regard to the payment of one of the installments, and that no claim was then made by the defendant of the right to make the deduction. This harmonizes with the like situation when the other official of the complainant company made his request or demand for the payment of the first installment.

If the owner makes a payment to a contractor in advance of the time fixed by the building contract for such payment, he does it at his peril; and if, thereafter, stop-notices are served on the owner by workmen or materialmen who have not been paid by the contractor, the owner, upon the establishment of their validity, is obliged to pay them himself, even though he has no further funds in his hands due and payable to the contractor, because he saw fit to make the payments of those funds to the contractor before they were really due under the contract. But if, at the time the advance payment is made (either in cash or other valuable thing), and at that time the owner and the contractor agree that the owner shall not be held liable for stop-notices that are thereafter filed, then that creates an equity between the owner and the contractor whereby the owner can look to the contractor for reimbursement for the funds which the owner is obliged thus to pay on the stop-notices. This is what Muencks claims was done in the present case. And where a mortgage is given by the owner to the contractor, instead of cash, on account of the contract price, the owner would have the right when it came time to pay that mortgage to deduct from it any amount he had paid on stop-notices in accordance with his agreement between himself and the contractor; and the assignee of that mortgage, under Walz v. Oser, 93 N. J. Eq. 280, would be bound to pay the equity existing between the mortgagor and the mortgagee, unless he obtained from the mortgagor a declaration to the effect that he had no claims or- set-offs against the amount due the mortgagee on the mortgage. Of course, if the mortgagor gave such a declaration to the prospective assignee he would then be estopped from setting up, as against that assignee, any secret equity which he might have had against the original mortgagee. Fow, that declaration of no set-off is not required to be in writing. The Verbal assurance is just as effective to work an estoppel as though it were written; but as in all such cases where the arrangement is verbal, and there is no instrument in writing executed between the parties, the proof to establish such an arrangement simply becomes more difficult. In the present case tlp.e complainant says that there was a declaration made by the defendant Muencks to the effect that the mortgage was a valid mortgage and that he owed the money on it. If such a declaration was made, then, manifestly, the defendant cannot now claim the right to deduct from the complainant any sum from the face of. the mortgage. As to whether or not such a declaration was made, depends upon the testimony produced. The complainant says that it was made, and the defendant says that it was not. In support of the complainant’s statement, however, that it was made, we have these additional circumstances: Several demands were made upon the defendant by different officials of the complainant company for the payment of the respective installments due under the terms of the mortgage. At the times those demands were made, the defendant made no assertion or claim that he was entitled to deduct from the face of the mortgage any payments on stop-notices as per an arrangement between himself and the contractor, until the last demand was made, and then he referred complainant to his attorney. All that the defendant did when these demands for the payments of the installments were made was to ask for extensions of time within which to make them, and nothing was said by him about any right to make deductions because of the payments on the stop-notices until he referred the complainant to his attorney at the time of the last demand. It seems to me that in the ordinary course of business, and as between business men, if there had been any such secret arrangement between the owner and the contractor as the defendant now contends, that would have been the first thing that the defendant would have called the complainant’s attention 'to when a demand was made for the payment of the mortgage, or any part thereof. His silence in this respect on the several occasions referred to, plus his request for an extension of time within which to make the payments, indicates to my mind that the defense of part payment because of the stop-notices and the right to deduct the amount so paid from the face of the mortgage is simply an afterthought, interposed in opposition to the payment of the mortgage in full when foreclosure was commenced. The weight of the evidence in this respect, to my mind, is in favor of the complainant, under all the circumstances disclosed by the evidence, and I am, therefore, thoroughly convinced that the defendant is not entitled to make any deductions in the manner he claims, and that the complainant is entitled to a decree for the full amount of his mortgage, with interest and costs, with no deductions therefrom because of the amount paid or claimed to have been paid by the defendant under the stop-notices.

I will advise a decree accordingly.


author: Backes, V. C.

text:
    Susanna Storch, complainant, v. Meyer I. Tepperman et al., defendants.
    [Decided January 22d, 1926.]
    1. An election to take damages for breach of contract for the sale of land will bar specific performance.
    2. An offer by a vendee of an executory contract for the sale of land to take the land upon a reasonable abatement of the purchase price, or his down money and a stated sum for damages, unaccepted, is an option, not an election.
    3. A bill for specific performance of a contract for the sale of land must be promptly filed after refusal to perform.
    4. To constitute one a ’bofia fide purchaser for value the consideration price must have been paid in full before notice of the superior equity.
    5. Only recorded, contracts for-the sale of lands are void as against subsequent purchasers if suits to enforce the contract are not brought within three months, as provided by section 116 of the Conveyance act. Comp. Btat. p. 1573. Unrecorded contracts are not affected by the act.
    On bill, &c.

      Mr. William Harris and Mr. Israel B, Green, for the complainant.

      Mr. Hugo Woerner and Mr. Samuel S. Ferster, for the defendants.
   Backes, V. C.

This bill is by a purchaser to compel the specific performance of a contract to convey lands with a house and garage to be built thereon, to be finished and deed to be delivered November 1st, 1924. The house and garage were not completed and ready for occupancy untl the 23d of the month, and then not in certain details, for which the complainant asks for an abatement of the purchase price. While the parties were negotiating the amount of the abatement, Tepperman, the owner, conveyed the property to Levenson, the builder of the house, who took with notice. Levenson then contracted in writing to sell to the defendant Becht, who paid down an earnest, without notice of the complainant’s contract, and later, with notice, actual and constructive, after the bill was filed and Us pendens recorded, paid or secured the balance of the consideration and took title, now of record. Becht was made a defendant by supplement to the bill. The defenses offered are—

1. That the complainant waived.specific performance and elected to accept damages for breach of the contract. If she elected, and, relying upon the election, the owner sold the property to Becht, the complainant is not entitled to the extraordinary relief of specific performance. Meidling v. Trefz, 48 N. J. Eq. 638; Milmoe v. Murphy, 56 Atl. Rep. 292; affirmed, 65 N. J. Eq. 767. It is established that, from the time the house was completed, in November, until the following January 27th, the parties were trying to adjust the complainant’s claim for deficiencies in the structure with the object of consummating the sale, and that that was the purpose of a meeting on that day in the office of the owner’s lawyer. There $200 was offered and rejected, and it is claimed, and supported by a number of witnesses, that the complainant’s husband, who represented her throughout the deal, some time during the discussion offered to take back the down money and $500 for damages, which was also declined. Mr. Storch denies that he made the offer, and says that it was made to him, and that he promised! to take it under advisement.with his lawyer. His lawyer testified that at the meeting Mr. Storch was offered and refused the down money only, and countered, that he would take it if paid his damages, but that he did not want the money and was insistent upon having the property. He also denied, saying the next day, in response to an inquiry from defendants’ solicitor as to his client’s attitude towards the $200 abatement offer, that the complainant stood by his offer (to take damages). None of the witnesses has given a true picture of what actually occurred. The meeting was undoubtedly animated. There were offers and counter-offers of settlement, and assuming, without deciding, that Mr. Storch expressed a willingness to take back the down money, plus $500, it was merely a proposition, not then entertained, and, as an afterthought, conveniently seized upon and pressed into service as an election. Taking the most favorable view for the defendants, it was an option to them, i. e., the land with an abatement or the return of the down money, and $500' damages. And it is plain that it was not made, or looked upon or understood by the defendants as a waiver of the right to the iand, for, within a few days after the meeting, a demand was made by the complainant’s solicitor for a performance of the agreement, and on February 10th following defendants’ solicitor, by letter communication, tendered his client’s readiness to carry out its terms and his willingness to resume the negotiations. The matter was thereafter left entirely to the lawyers, and though efforts were made by them to bring about a settlement, nothing was accomplished up to the time of the filing of the bill, March 13th, and even then negotiations were under way to carry out a proposition which had been pending, and which had been earlier suggested, to submit the question of abatement to arbitration, and a draft of an agreement to that effect was sent to the defendants’ solicitor, with a copy of the bill, with a request that it be executed. There was never any mistaken belief upon the part of the defendants that the complainant’s husband had forsaken her right to the performance of the contract, nor that, having expressed a willingness to take money damage, he was constant in his efforts to have its terms carried into effect.

It appears that the property was bought by the complainant and her husband for a home, and that occupancy on the .day fixed for the transfer was of importance, as they had given up their right to their then apartment; and that realizing beforehand that the house would not be finished in time, and feeling that they would be without shelter, bought another house, the one in which their apartment was located. Erom this it is contended that the complainant’s husband was minded to abandon the contract, and that it argues in support of the defendant’s contention that he elected to take damages in lieu. A complete answer to this is that, after he bought his present home, he was as insistent as before upon closing the bargain with the defendants, and that they cooperated.

Tepperman testified that Mr. Storch said he did not want the house under any circumstances, and Levenson, referring to another occasion, uses substantially the same phrase in describing another alleged refusal to accept the house. No other witness gave testimony that he ever expressed any such sentiment, and in view of the later conduct of the parties the remark, if made, was either a loose expression or was loosely interpreted and translated into testimony, and is of no significance. The defendants have not sustained, by the weight of the evidence, the alleged facts upon which they ■rest the defense of waiver.

2. Laches. A bill for specific performance for the sale of land must be promptly filed after a definite refusal to perform. Ketcham v. Owen, 55 N. J. Eq. 334; Agens v. Koch, 74 N. J. Eq. 528. Here there was no express refusal. There was a failure to agree upon terms of performance concerning which the complainant’s husband had not relaxed in his efforts, nor the defendants in their apparent desire to agree, up until the filing of the bill, although the latter had secretly sold the property to Becht ten days before. The refusal of the defendants to perform came to the complainant only with the information that they had sold to Becht, and then, on the same day, or the next, the bill was filed. There was no lack of diligence.

3. Tender. The complainant was willing and demanded, and offered or tendered performance consistent with her meritorious claims for an abatement of the purchase price. More than that is not required. Worch v. Woodruff, 61 N. J. Eq. 78.

4. Bona fide purchaser. There is no pretense that Levenson is within the favored class. Becht took title upon condition that the consideration price be held in escrow and paid over or returned to him, depending on the outcome of this suit,- and it is now in the possession of a stakeholder. He is not an innocent purchaser for value. To constitute one an innocent purchaser for value, and entitled to the protection of equity, or the Conveyance act (Comp. Stat. p. 1558 § 54), the consideration price must have been paid in full before notice of a superior claim. Haughwout v. Murphy, 22 N. J. Eq. 531; Bridgewater v. Ocean City Asso., 85 N. J. Eq. 379; affirmed, 88 N. J. Eq. 351; Schwarz v. Munson, 94 N. J. Eq. 754.

The complainant’s contract was not void as to Becht, because it was not -recorded as permitted by the Conveyance act. Section 116 of-the act (Comp. Stat. p. 1578) provides for the voiding of recorded agreement for the sale of land as to subsequent purchasers for value, unless the vendee sues for specific performance within three months, and does not apply to unrecorded agreements. That provision is a limitation upon the right of action against subsequent purchasers with or without notice by vendees who chose to protect their equities by recording their contract. Gerba v. Mitruske, 84 N. J. Eq. 141.

5. The point that this is a suit to enforce a building contract, and that such suits will not, as a rule, be specifically enforced, is not well taken. The building had been substantially completed. It is proved that the wall plaster is not of the thickness and workmanship specified, and that there are many other deficiencies. The practice in equity is to enforce such agreements, and abate the purchase price to the extent of the difference in the value of the property between the substantial and precise completion, of which the cost is, in most instances, the sole measure. The difference in this instance is appraised at $500.

Decree accordingly. There will be an adjustment of the rents, &c., as of November 1st, 1924, and if the parties cannot agree it will be referred to a master.


text:
    Mary V. Hebble, complainant, v. Amos Hebble, defendant.
    [Decided February 3d, 1926.]
    Evidence examined, and held, that the alimony advised by the master in this cause should be allowed and his report thereon confirmed.
    On exceptions to master’s report.

      Messrs. McDermott, Enright & Carpenter {Mr. James D.. Carpenter), for the exceptant-defendant.

      Mr. Frank R. Pentlarge, for the complainant.
   Backes, V. C.

The bill in this case charged unjustifiable abandonment and refusal to support, and the case came on for trial before Yice-Chancellor Eielder, who, on November 23d, 1920, advised a decree awarding the wife $3,000 yearly alimony, payable in monthly installments; one-half of the yearly interest of a mortgage ($75); yearly dividends on certain corporate stock ($70); the rent of premises called the Nineteenth street house, Newark ($480), and the use of the homestead (Yernon Terrace); the husband to pay the yearly fixed charges of the two houses, approximately, $500; the wife to keep them in repair. The alimony totals $3,975, plus the use of the homestead. This somewhat unusual decree was, evidently, agreed upon by the litigants, because it bears the consent of their counsel.

The husband took upon himself to repair the houses, claiming that his wife neglected them, and to reimburse himself collected the rent of the Ninteenth street house, and took the balance out of the alimony In 1924, he was ordered to show cause why he should not be adjudged in contempt and why the allowance of the wife should not be increased. In an ’answering affidavit he admitted disregarding the decree in the manner just related and asked to be excused, and that his course be approved and his expenditures be allowed; and further, that the yearly alimony be reduced to $2,400. The matter was referred to a master to investigate the husband’s capacity and the wife’s needs and to report on the applications for increase and decrease of the alimony, and also to take an accounting. The master recommended that the alimony be increased to $5,700 annually, and that the decree be modified relieving the defendant of the future payments of the fixed annual charges of the homestead and the Nineteenth street property ($500), and that he thence have the rent of the Ninteenth street property ($960); he to make the repairs on the latter. On the accounting the master reported that the defendant was—

In arrears for alimony .................. $1,017.50
And that of the $1,280 rent collected by him from the Nineteenth street house, the wife was entitled at the, rate of $40 a month.. 640.00
- $1,657.50
The master reported that the defendant expended for repairs..................... $2,323.50
That of this amount he should not be allowed for $540 for a furnace and $294.46 for electric 'appliances installed in the Nineteenth street house, because they were cap-
ital improvements not repairs..........’. 834.46
- $1,489.04
Balance due for alimony, March, 1925..... • $168.46

Exceptions' were filed by the defendant to the increase in alimony and to the failure to give credit for the capital improvements, and.were disposed of orally at the conclusion of the argument, the proofs having been previously submitted.

The decree was modified in accordance with the master’s recommendation except as to the accounting, which was corrected in this manner:

Arrearage of alimony .................... $1,017.50
The wife was allowed all the rents collected from the Nineteenth street house after the repairs were made, as she was charged with repairs resulting in. the increased
rent ................................. 1,280.00
- $2,297.50
Expenditures for repairs ................. $2,323.50 The cost of capital improvement,
furnace ..................... $540.00
Electrical appliances .......... 294.44
$834.46
Was divided proportionately per use, based on the life of the improvement, estimated at ten years, and the complainant was charged with................
160.00
- 684.46
- 1,639.04
The decree entered for arrearages, viz............... $658.46

Both sides desired a modification of the decree eliminating all matters except a straight money allowance. The reasons for the provisions in the decree, which lead to the present complications, had been removed. At the time it was entered the husband claimed to own the mortgage mentioned in the decree, which stood in his and his wife’s name, and also the Vernon Terrace house, to which she held title. She claimed to own the Nineteenth street house, which stood in the husband’s name-. In Episcopal Church v. Hebble, 95 N. J. Eq. 117, a moiety of the mortgage was given to each and the Vernon Terrace house to the wife. In another suit, as I am informed, the husband succeeded as to the Nineteenth street property.

At the time of the original decree the defendant’s salary was $10,000 annually. For the past three or four years it has been $15,000. One-third of the husband’s income is usually allowed the wife for alimony, and an additional allowance for the support of children. This, of course, is only a guide and not a hard and fast rule. Each case must be separately judged according to the circumstances, which is often a trying task. ■ I felt at the time of the decision, as I do now, that the sum recommended by the master was reasonable and just to the wife. In addition to the upkeep of her home, and supporting and clothing herself, the wife maintains her youngest son at Princeton at a yearly cost of $1,500, which the husband does not criticise, and the needs of another, older, son, now an adult, but not as yet fully self-sustaining, are not overlooked by her. Last year her expenses were, so she testified, $5,200, and it is not shown that she was not careful. She had to use the money received from the Board of Mission’s mortgage. The defendant claims that the homestead is too large for her use, and contends that she should rent it and seek smaller quarters. The answer to this is that she is living in the home he provided, and only in the style and manner that she would be living if he were living with her, and to that she is entitled. His income and their station in life justifies her conduct. She is not called upon to cheapen her course of living unless his means require it, and that they do not. Her right to her mode of living fluctuates with his earning capacity and style of living, and it does not appear that he is denying himself the luxuries of a gentleman’s existence. It may be the fact that the wife’s expenses are now nearly as much as when the two were living together, but that should not deprive her of the comforts of the home he created, which he can afford, and which she offers to share with him, but which he declines.

The defendant also claims that his ‘wife ought to compel his adult son to pay board “for his own good.” The young man is, it would appear, striving for a foothold in business, and is it to be held against the mother that she is encouraging him in his struggle by feeding and housing him ? The defendant-father offers him no assistance.

The exception to the master’s report, that it does not provide for a reduction of the allowance to the amount of the son’s keep at Princeton upon his graduation, is premature. The time to apply for that is upon the happening of the event.

Eurther explaining the correction in the accounting: The master refused to allow the defendant credit for two items— furnace and electrical appliances in the Nineteenth street house — holding that they were improvements, not repairs. Under the amended decree the defendant resumes ownership of this property. The allowance should have been made for the time the articles were used by the complainant as that time of the estimated life of the articles bears to the cost. The estimated life of ten years is low, and the amount allowed favors the defendant.

Until the defendant made the repairs on the Nineteenth street property, it yielded but $40, as against $80 thereafter. The master thought that the complainant was not entitled to the increase, and charged the defendant with but $640 of the $1,280 rent collected by him. She paid for the improvement and was entitled to the resulting benefit. The error was palpable and conceded by the defendant.


text:
    Raymond J. Baldwin, complainant, v. The Berry Automatic Lubricator Corporation, a corporation, and John C. Hoshor, defendants.
    [Decided February 20th, 1926.]
    1. Chancery has not jurisdiction to regulate the internal affairs of a foreign corporation.
    2. Chancery has jurisdiction to appoint a receiver of the property in this state of an insolvent foreign corporation doing ¡business in this state.

      Mr. Samuel M. Hollander and Mr. Israel B. Green, for the complainant.

      Messrs. Burnett, Sorg, Murray .& Duncan {Mr. Murray), for the defendants.
   Backes, V. C.

The defendant is a Delaware corporation. The complainants, stockholders and creditors, filed this hill (amended) to enjoin it from exercising its corporate franchise in this state, for a receiver.

The company was formed in May, 1925, by Christopher H. Berry, an inventor, and John C. Hoshor, a New York stock broker, using dummy shareholders, with an authorized capital stock of $1,000,000, divided into one million shares at a dollar a share. Berry had invented a grease cup, and had a patent pending, and for a license to manufacture the cup all the authorized capital stock of the company was issued to him— that is, the license to manufacture the cup was capitalized for a million dollars. Seven hundred and fifty thousand of the shares were immediately handed over to Hoshor and fifty thousand shares were returned to the treasury of the company for sale to the public. The corporation then entered into a contract with Hoshor’s stock brokerage concern, Hoshor, Montayne & Company, later changed to Hoshor, Presby & Company, to sell the company’s fifty thousand shares of treasury stock, the company to pay all expenses and ten per cent, commission. The stock floating campaign was then launched. The public was circularized with the usual alluring literature, guardedly phrased, but false in spirit and fact, in which the Berry Automatic Lubricator Company was represented as an active manufacturer and distributor of lubricators; that its customers were some of the largest manufacturers in the nation, and that there were reasonable prospects of a twenty per cent, dividend in 1926, all designed to intrigue their victims into the belief that the company was in prosperous and successful operation. Crafty salesmen were sent into the field, and with glib tongue and false heart, and by wicked and false pretenses, swindled them of their money and securities — securities paying a lower dividend. The promise of a twenty per cent, dividend was the bait dangled at the end of their line of misrepresentations. After two thousand three hundred and eighty-three shares had been disposed of at a dollar and a half a share, the promoters, evidently feeling that they were selling them too cheap, and that $5 and over could be as readily gotten, recapitalized the license at $5,000,000, increased the authorized capital stock to that amount, and the shares to $5 each, and, thereafter, one hundred shares were sold at $4 a share, twenty-four thousand four hundred and. sixty-seven at $5 per share, one hundred and thirty-one at $7 per share and one thousand five hundred and seventy-nine at $7.50 per share, yielding a total of $139,015.50. Of this sum, $76,100.50 represents stock and securities taken in exchange and resold for $54,481.23, leaving a net yield of $117,396.23 in cash. Of this, over $96,000 — to be exact $96,293.69 — has been eaten up by expenses, salaries, commissions, &e. A shop had been rented in Newark and second-hand machinery had been installed at a cost of $11,000 on deferred payments, but not a wheel was turned nor a cup marketed for profit. Half a dozen or more mechanics made cups by hand, a few a day, in all a few hundred, which were sold or sent to large manufacturers as try-outs or samples. These were the much-advertised cusr tomers. It was sought to show that lack of co-operation between the stock brokerage and factory management was accountable for the failure of machine production on a larger scale, but the facts tend to show that the factory was a mere sham and pretense, and that the grease cups functioned mainly in lubricating the sale of stock. It is not questioned that the invention has merit, but fixing its value and price at a million dollars of the capital stock of the company implies fraud at the outset, and later raising the face value of the issue to $5,000,000 demonstrates it, as well as the cupidity of the promoters. There is nothing left to show for the $117,396,23 except some second-hand machinery, as yet unpaid for, office furniture and stock on hand, all appraised at $14,000; $7,678 due from Hoshor, Presby & Company, which, apparently, is uncollectible, a few dollars in bank. From this showing, and the figures are taken from the account furnished by Hoshor, Presby & Company, can it be doubted that the corporation was manipulated solely as a stock-selling swindle, and that the scheme is only one of many by which the public is fleeced of a billion dollars annually, as statistics show?

It may be as contended, that all the related misuses and abuses of the corporation and of the public are foreign to the jurisdiction of this court in these proceedings, but it cannot be plausibly argued that they are not influential in solving the issue of insolvency presented by the bill. Foreign corporations licensed to do business in this state are subject to the provisions of our Corporation act only so far as they are applicable. For the regulation of their internal affairs the courts of the state of their creation must be resorted to. But when such companies are engaged in business in this state and have their property here, an injunction may issue and a receiver be appointed, as in cases of domestic corporations, upon insolvency, actual or potential, and it is on this single ground and issue that the bill is entertained. The company never functioned in legitimate business. Its liquid assets have been dissipated. The company’s factory is a liability. It has no business. It has orders, so it is claimed, for three hundred and eighty-five cups from seventy-nine concerns, ranging in price from ninety cents to $6 per cup, a total of $916.20, mostly samples, and no funds to pay for labor or material. It must buy for cash, and it has none. Its total debt is not large, only $2,724.14, but it cannot pay. It has asked its creditors for an extension of time; with what result is not disclosed. Numerous checks, given in payment of bills, have, time and again, been dishonored, and some are still under protest and unpaid. These are Hosher, Presby & Company’s checks given in settlement of merchandise and wage accounts. They were the company’s fiscal agents. It is said that the company has $874 in bank and $447.53 bills receivable. If that be so why are not the protested checks paid? It is urged in the affidavits and argument that $5,000 would set this five-million-dollar company on its feet, and that to enjoin it and to appoint a receiver would be unjust and disastrous to the stockholders. Hoshor, Presby & Company owe the company $7,678, remnant of the stock sales. Why that is not used to “salvage” the concern is obvious. The appeal for leave to further exploit the public spells its own answer of bankruptcy. The company is hopelessly insolvent, and, in the language of our statute, “is not able to resume its business in a short time * * * with safety to the public and advantage to the stockholders.”

A receiver will be appointed.


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    Isaac Sandusky, complainant, v. Ellen E. Allsopp et al., defendants.
    [Decided January 15th, 1926.]
    Equity will not refuse to enforce a group or neighborhood scheme, restricting the use of land to certain classes of buildings, because of a change in the character of the neighborhood, unless such change clearly neutralizes the benefits to the point of defeating the object and purpose of the restriction.
    On bill, &c.

      Mr. Harry A. Augeribliclc, for the complainant.

      Messrs. Bum, Tamblyn & Golyer (Mr. Ralph B. Bum), for the defendants.
   Backes, V. C.

This bill is filed under the provisions of “An act to compel the determination of the existence and validity of covenants * * * and of restrictions contained in deeds of conveyance of real estate.” Comp. 8tat. p. 5405. The complainant and the defendants, Allsopp, Schwartz and Delaney, each own one of four adjoining lots on the east side of Johnson avenue, Newark, at the corner of Alpine street, upon each of which stands a detached single family dwelling-house, thirty-six feet back from the street. The remaining defendants own four lots in the rear, facing Milford avenue. The plot, fronting two hundred and seventy-two feet on Johnson avenue, two hundred and seventy-four feet on Milford avenue and two hundred and sixty-six feet in depth, was at one time owned by Sleght and JellifE. In their several conveyances of the lots on Johnson avenue to the predecessors in title of the complainant and the named defendants they incorporated a restriction against the erection on the lots of certain classes of buildings, inter alia, apartment-houses, and a requirement that all buildings on Johnson avenue be set back thirty-six feet from the curb line of the street; and in the first conveyance of lots on Johnson avenue it was stipulated that the restrictions would be inserted in the conveyances of the remaining lots on Johnson avenue, and that was done. The restrictions were carried in all the deeds forming the chains of title of the complainant and the named defendants with the exception of the deed from the complainant’s grantor. This omission was, apparently, to qualify the complainant to file this bill, as the act precludes the right to one whose deed contains the restriction. A similar restriction as to apartment-houses was inserted in the deed of the lot first conveyed on Milford avenue, and required that buildings be set back twenty-four feet from the curb line, and also a stipulation that the restrictions would be placed in all deeds conveying the remaining lots on Milford avenue. The deed for the second lot on Milford avenue contained the restrictions, but they were omitted in the conveyances for the remaining two lots sold by the common grantor in 1918 and 1921, and upon these two lots an apartment-house has been erected. The complainant wants to build an apartment-house on his lot and filed this bill to íelieve his lot of the restrictions, setting up that the character of the neighborhood has changed from one once devoted to private residences to an apartment-house section, and that, therefore, the object of the restrictions has been defeated, and that they “are unjust and vexatious and unenforceable.” The defendants Schwartz and Delaney answered and object.

That such restrictions are lawful and enforceable in equity is not open to question in this state. Kirkpatrick v. Peshine, 24 N. J. Eq. 206; Coudert v. Sayre, 46 N. J. Eq. 386; Sanford v. Kerr, 80 N. J. Eq. 240.

The only ground alleged in the bill for nullifying the restrictions is, that the character of the neighborhood has changed, and the right to relief must rest there, but the complainant has gone further in his brief and urges that the right to specific performance has been lost to the defendants by abandonment of the group scheme, in that the common grantor failed to include the restrictions in the conveyance of the two lots on Milford avenue, and that the restrictions have been waived by the answering defendants acquiescing in the erection of the apartment-house thereon. There is .no merit in this. The scheme of the common grantor was, undoubtedly, to exclude apartment-houses from the entire plot, but the benefits and burdens of the restrictions were not intended to be common to all subsequent lot owners, for they were confined to the several lot owners on Johnson avenue as a unit and independently of similar restrictions imposed upon the unit of lot owners on Milford avenue. The proof of the limitation is found in the stipulation in the first conveyance of a lot on either avenue, to the effect that the restrictions would be inserted in future conveyances of lots on that avenue only. The erection of the apartment-house on Milford avenue was, unquestionably, in violation of the restrictions upon the Milford avenue lots, but with this the owners of lots on Johnson avenue had no concern, and they were not in a position to prevent it. The restrictions were not for their benefit.

The fact that the neighborhood has undergone a change, in that many large apartmentdiouses have been erected in the vicinity, does not commend itself as a sufficient reason for withholding from the defendants equitable protection from invasion of their group of properties. The parties bound to the observation of the covenant have not themselves permitted or suffered any infraction of its provisions nor relaxed in any degree any of its terms, so as to dissuade a court of equity from lending its aid, as in Scull v. Eilenberg, 94. N. J. Eq. 759, where it declined to interfere with the erection of a store in violation of a building location line because others in the neighborhood scheme had been allowed to violate the restriction. And it is no answer to those who are anxiously guarding the light, air and prospect of their homes, assured by the covenant, and it is a vain appeal to equity to remain dormant, that the complainant’s lot is no longer desirable for a single dwelling-house, because it can be more profitably utilized for an apartment for many families, and because others in that section, strangers to the covenant, have advanced their holdings by such structures. When the parties bound by the covenant have not themselves waived or abandoned or forfeited the restriction upon the use of land, a change of character of the surrounding territory will not induce a court of equity to refuse to enforce the covenant unless the influence of the change upon the restricted area is such as to clearly neutralize the benefits of the restrictions to the point of defeating the object and purpose of the covenant. Page v. Murray, 46 N. J. Eq. 328; Trustees of Columbia College v. Thatcher, 87 N. Y. 811. Unless the restrictions are stripped of all material benefit a party to the covenant is entitled to protection. The situation here disclosed has not reached that stage, and the bill will be dismissed.


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    Laura Jane Oram, complainant, v. Thomas W. Oram and Rorert F. Oram, Jr., defendants.
    [Filed March 11th, 1926.]
    If a wife is entitled to an inchoate right of ’dower in land held in trust to the use of her husband, and the use appears of record, purchasers take with notice of her right, and she has no standing in equity to impress it upon the title. Brown v. Brown, 82 N. J. Eq. lfi, distinguished.
    On bill, &c.

      Mr. William Tyache, for the complainant.

      Mr. Richard J. O’Connor, for the defendants.
   Backes, V. C.

The object of this bill 'is to impress lands, and the proceeds of the sale of lands, alleged to be held in trust for the complainant’s husband, with her inchoate right of dower.

Robert E. Oram, now deceased, by the first clause of his will devised his real estate and bequeathed the remainder of his personal property to his executors, in trust, to hold the real estate for twenty years for the use and benefit of his estate, and to pay the rents, issues and profits in equal shares to his four children, two sons and two daughters, one of whom is the husband of the complainant, with power to sell the lands if advantageous to the estate, and to invest the proceeds and divide the income as the rents, issues and profits of the lands were directed to be divided. By the fifth clause it is provided:

“It is my will, and I do hereby order and direct my said executors, or the survivors or survivor of them, at the expiration of the twenty years as aforesaid, to make partition by sale or otherwise as to them may seem best, of all my real estate then remaining among my said four children, share and share alike.”

The shares of the daughters to be held upon further trust, to pay them the income for life with remainders to their children and grandchildren, and, in default, to the testator’s surviving children or their heirs. The trustees sold some of the lands during the twenty-year period and some since then. The complainant claims an inchoate right of dower in the proceeds and in the lands unsold, and prays that it be impressed on both, and she rests her right to relief on Brown v. Brown, 82 N. J. Eq. 40. The doctrine of that case is not appropriate here. There the husband, with intent to cheat his wife of her dower, caused the title to property he had purchased to be put in the name of another. There was nothing of record to show that it was held in trust for him, and, to frustrate the fraud, Chancellor Walker impressed her inchoate right upon the land to protect it as against innocent purchasers. No such protection is necessary in the present case. Under the Dower act a widow is entitled to •dower in the lands of which her husband, or any other to his use, was seized during coverture. . Comp. Stat. p. 204e. As wife she has a vested interest in his lands during coverture inherent of her prospective estate as widow. Whether potential or consummate, a dower interest or estate is in the land, and altogether apart from the husband’s fee, and inalienable against the wife’s will. If the lands here involved were •or are held in trust to the use of the complainant’s husband, and she has an inchoate right of dower therein, all alienations by the trustees will be ineffectual as to her estate of •dower if and when it becomes consummate upon her surviving her husband and in her then suit to have it assigned. 'The husband’s use, if there is one, appears of record, and purchasers, however innocent in fact, are charged by law with notice of her separate interest or estate.

In this view of the case it is unnecessary to decide that there was a conversion as to the lands sold by the trustees within the twenty-year period (Cook v. Cook, 20 N. J. Eq. 875), and that there was none as to the lands sold thereafter. Meeker v. Forbes, 84 N. J. Eq. 271. The husband’s share of the proceeds of the sale of lands, in the trustees’ hands, is either personal property or was derived from the sales of his estate, not including any interest that his wife may have in the lands, and it is not chargeable with her claim of inchoate right of dower. The bill will be dismissed.


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    William L. Brunyate, George E. Chandler and Paul R. Chandler, executors, &c., complainants, v. Ethel T. Chandler et al., defendants.
    [Filed March 11th, 1926.]
    1. Executors are entitled to the advice of the court only so far as necessary to guide them in the administration of the estate in their charge.
    2. A' bequest to testator’s children, “the child or children of any deceased child to have the share of his, her or their deceased parents,” as applied to the remainder of a trust fund for life created by the will, means death of a child before the life tenant and not death before the testator; and in case of such death the substituted beneficiary takes directly under the will.

      Mr'. William L. Brunyate, for the complainants.

      Mr. Ralph E. Bum, for the defendant Ethel T. Chandler.

      Mr. Arthur Harris, for guardian of the infant defendants.
   Backes, V. C.

D. Harry Chandler, now deceased, by the first clause of his last will and testament, devised and bequeathed his homestead and its furnishings to his wife for life, and by the third clause gave to his executors, in trust, $90,000, to pay the interest thereof to his wife for life. By the fourth clause he devised to his sister, Mary Chandler, a house for life, and by the fifth clause he gave to his executors, in trust, $25,000, to pay her the interest thereof for life. By the seventh clause he provided:

“Seventh. I do give, devise and bequeath all the rest, residue and remainder of my estate of whatsoever kind or nature, or wheresoever situate, unto my children, Horace H. Chandler, E. May Chandler Brunyate, George W. Chandler, Florence Chandler Kennedy, Paul R. Chandler and H. (Harry Chandler, Jr., in equal portions or shares, the child or children of any deceased child to have the share of his, her or their deceased parent; the distribution to my said children of my residuary estate, as herein directed, shall be effected as soon as may be done conveniently after the establishment of the trusts as provided for in the third and fifth clauses of this my will; and the distribution to my said children of the remainders after the life estates established by the first and’ fourth clauses of this my will; and the distribution to my said children of the principal of the trust funds established by the third and fifth clauses of this my will shall be effected as soon as may be done conveniently after the deaths of my said beloved wife and! sister as each shall occur.”

The testator’s sister, Mary Chandler, died August 26th, 1925. Horace H. Chandler, testator’s son, mentioned in the seventh clause, predeceased her, testate, leaving a widow and three children, infants, one posthumous. By his will he gave his estate to his widow. The executors say that they are in doubt as to what disposition to make of the remainder of the land devised for life to Mary Chandler by the fourth clause and of the trust fund of which she was beneficiary for life under the fifth clause. The complainants are entitled to the aid of the court only so far as necessary to guide them in the administration of the estate in their charge. Hoagland v. Cooper, 65 N. J. Eq. 407. They have no concern in the remainder of the real estate devised to Mary Chandler for life. That passed directly to the devisees under the will, and a decision as to who are the takers thereunder, the original or substituted devisees, would be of no binding force. The executors Rave power of sale, but they have not exercised it, nor is it alleged that they intend to do so. If they sold at this time there would be no conversion, and the proceeds would pass as real estate. Meeker v. Forbes, 84 N. J. Eq. 271.

The remainder in the trust fund created by the fifth clause of the will passed under the seventh clause to the children of the testator living at the death of the life beneficiary —the period of distribution — and to the children of a deceased child, in this case to the children of the deceased son, Horace H. Chandler, living at that time. The latter take directly under the will in substitution of their deceased father. Redmond v. Gummere, 94 N. J. Eq. 216. The posthumous child is to be regarded as living at the period of distribution for the purpose of taking under the will. In re Haines Will, 98 N. J. Eq. 628.

The substitution of the children of a deceased child as beneficiary related to the death of a child before the period of distribution and not death in the lifetime of the testator. The residuary estate vested in the testator’s children at the death of the testator subject to being divested if any died before it was open to enjoyment. There would be no repugnance of construction of this clause, as suggested in one of the briefs, to hold that Horace H. Chandler was vested in possession of his share of the residuary estate exclusive of the remainder of the trust funds created for his mother and Mary Chandler for life, and not so vested of the residue of said funds. He took the former because as to it the period of distribution was the time of the death of the testator, while as to the latter it was the death of the life tenants. The intention of the testator as to which, the original beneficiary or the substitute, was to take, is to be gathered by applying language of the residuary clause to the dispositions made by the rest of the will.

The superadded words to the residuary clause, “the principal of the trust funds established by the third and fifth clauses of this my will shall be effected as soon as may be done conveniently after the deaths of my said beloved wife and sister as each shall occur,” were merely directions to speed the distribution, and were not intended to limit or vary the prior provision substituting beneficiaries.

The executors will be advised accordingly.

P. S. — The complainants, executors, have amended their bill, setting up that the land in which Mary Chandler had a life estate has been sold by them, and desire instructions as to the disposition of the proceeds.

The sale did not effect a conversion. The proceeds must be treated as realty. Meeker v. Forbes, 84 N. J. Eq. 271. Counsel are in agreement that Horace H. Chandler was divested of his estate in the real estate upon his death in the lifetime of the life tenant, and that his children took as devisees under the will. The proceeds must be paid to them.


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    Michael DeMasi, complainant, v. F. W. Bowden Company et al., defendants.
    [Filed March 17th, 1926.]
    1. A stop-notice under the third section of the Mechanics’ Lien law operates as an assignment pro imito of the money due the contractor, and is recoverable at law.
    2. A judgment at law against an owner, for the amount of a stop-notice, is general and res judicata,, and he cannot compel the holder to interplead in equity to the debt or funds owing 'by him to the contractor.
    On bill, &c.

      Messrs. Wolber & Gilhooly, for the motion.

      Mr. Pasqualino 0. Gorbo, for the complainant.
   Backes, V. C.

Defendant moves to strike the bill for want of equity. The bill discloses that the complainant has in his hands $1,008.76 due from him to a contractor for the erection of a building, under written contract, duly filed; that on December 22d, 1924, the Bowden company served on him a notice, in the nature of a stop-notice, for $492.49, for materials and labor; that on February 16th, 1924, defendant Brill served a like notice for $482.44; that thereafter other materialmen and laborers served stop-notices; that the stop-notices total $2,-452.93; that Brill recovered a judgment against him July 11th, 1925, in the first district court of Fewark, for the amount of his stop-notice, and that he threatens to collect it; that he is unable to determine which of the claimants to pay, and offers to pay the money into court, and he prays that the claimants interplead, and that Brill be enjoined from executing his judgment.

The bill is defective in that it does not allege that the stop-notices recite a demand upon the contractor and his refusal to pajr, but no point is made of that.

It is not a ground for interpleading claimants to a fund, that the possessor is unable to determine to which of them he should pay it. He must allege facts showing a conflict of claims, causing reasonable doubt. This the bill does not disclose, except incidentally. In setting up the stop-notices it is alleged that they are for moneys due for material and labor furnished by the claimants to the contractor. There is no apportionment of the amounts due for labor and what for materials. As labor is entitled to preferential payment (Comp. Stat. p. 8298), that may be the cause of confusion; but no point is made of that either.

binder the third section of the Mechanics’ Lien law stop-notices operate as assignments to the claimants pro tanto of the moneys due from the owner to the contractor. They are payable in the order of priority of service, not pro rata. Association v. Williams, 59 N. J. Eq. 617. Recovery must be had at law. Commonwealth Roofing Co. v. Riccio, 81 N. J. Eq. 486. All available defenses must be made there. The judgment is general against the owner, and res judicata. Pusakowski v. Woodward Co., 87 N. J. Eq. 665. That there are no funds, or that they were perempted by prior stop-notices, or that there was nothing due the claimants, or that they failed to comply with the statutory requirements, or any other matter that would defeat the stop-notices as an assignment, are pleadable. The complainant has had his day in court. He cannot have a retrial in this court by forcing Brill to interplead. That would be the effect of a decree to inter-plead, for Brill again would be compelled to defend his stop-notice against objections that were available to the complainant in the law suit, and which by his bill he invites Brill’s co-claimants to make. Motion granted.


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    Fidelity Union Trust Company, as trustee under the last will and testament of William Rowland, deceased, complainant, v. Jennie Rowland et al., administrators, &c., of the estate of Charles Rowland, deceased, et al., defendants.
    [Filed March 24th, 1926.]
    A legacy in trust to use the income for the maintenance of the legatee until he arrives at thirty, and the corpus to the legatee “upon attaining the age of thirty years” is vested both as to income and corpus, and passes to the administrator of the legatee forthwith, though the latter, if living, would not be of the prescribed age.
    On final hearing.

      Messrs. Hood, Lajferty & Campbell, for the complainant.

      Messrs. Gaston & Cramer, for the defendant administrators of Charles Rowland.

      Messrs. Lindabury, Depue & Faulhs (Mr. Ashmead, of counsel), for the defendant William Rowland.

      Messrs. Harrison & Roche, for the defendant Grace R. Riva.
   Backes, V. C.

The will of William Rowland contains this clause:

“17. I hereby give and bequeath unto my executors hereinafter named, and the survivors and survivor of them, the sum of fifty thousand dollars L $50,000], in trust, however, for the following uses and purposes, to wit: To invest the same and keep the same invested and apply the net semi-annual income thereof to the maintenance, support and education of my grandson, Charles Rowland, son of my decesed son AVSUiam R. Rowland, until he shall attain the age of thirty [30] years, and upon my said grandson attaining the age of thirty [30] years, I give and bequeath unto him the said principal sum of fifty thousand dollars [$50,000].”

It is an accepted rule of construction that a legacy to a person “upon attaining the age of thirty years,” without more, is conditioned upon his reaching that age; the contingency is regarded as attaching to the substance of the gift. But the rule applicable to such legacies, like all other rules that serve to indicate the intention of the testator, yield to the influence of the'structure and context of the legacy and other provisions of the will importing that the words of contingency were merely intended to postpone the enjoyment of the gift, and that would seem to have been their purpose here. The testator made an absolute gift of the fund to his executors in trust. It was severed from his general estate and there was no gift over. The legatee was to have the income until thirty years of age, then the principal. The gift to the trustee is regarded in equity as a gift to the legatee, and as the fund vested in the trustee at the death of the testator so it vested in the legatee, with the immediate use in him of the income, the enjoyment of the principal being postponed until his thirtieth year. The secondary gift of the principal to the legatee, upon attaining the age of thirty years, amounts to a direction to the trustee, in possession of the fund, to pay it over at that time. The authorities are agreed in holding that legacies in the terms of the one under consideration are deemed vested. Roper on “Legacies” says (at p. 578):

“When the period of payment or enjoyment of the fund is deferred until the legatee attain twenty-one, and the first gift of it is made to him when or after he shall attain that age, but in the meantime the property is given to a parent, guardian or trustee, for the legatee’s benefit, the words ‘when’ or ‘after,’ which, import a condition precedent to the vesting of the legacy, will not be permitted to produce that effect; on the contrary, they win Ibe considered as merely descriptive of the time when the legatee was to be let into the possession of the fund, and then according to the rule mentioned in the first section, the interest in the legacy will vest at the death of the testator; and if the legatee die before twenty-one, his .personal representatives will be entitled' to the money. The principle is this: since the whole interest in the fund is given in one way or the other to and for the" benefit of the legatee, it could not be the testator's intention to mate it contingent whether the legatee should have the absolute interest. The interest is split into two parts, till one period it is given to the parent, guardian or trustee, and at the other it is given to the legatee. The reason why it was not given sooner to the legatee was from regard to his convenience, as it could not be conveniently given to a person under age. Hence, it is apparent that the conditional words were merely annexed to the payment, not to the gift of the legacy.”

In Gifford v. Thorn, 9 N. J. Eq. 702, 708, Chief-Justice Green, sitting for the chancellor, held that “where the interest of the legacy is directed to be paid’ to the legatee until he receive the principal, or where the legacy is placed in the hands of trustees for the exclusive benefit of the legatee until it is directed to be paid over, the legacy will be deemed vested.” Stapleton v. Cheales, Pr. Ch. 317; Lane v. Goudge, 9 Ves. 229; Hanson v. Graham, 6 Ves. 249; Hoath v. Hoath, 2 Bro. Ch. C. 3; Fondereau v. Fondereau, 3 Atk. 645; 1 Jarm. 764; 1 Rop. 572. The rule is quoted with approval in JDnsenberry v. Johnson, 59 N. J. Eq. 836, and the principle is stated or adverted to in Post v. Herbert, 27 N. J. Eq. 540; Fisher v. Johnson, 38 N. J. Eq. 46; Parker v. Glover, 42 N. J. Eq. 559, and Nielson v. Bishop, 45 N. J. Eq. 473.

The trustee is advised that the legacy vested in Charles Rowland, and upon his death, passed to his administrators, and is presently payable to them, although the legatee would not now be thirty had he lived. Bop. Leg. 870.


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    H. Ely Havens et al., complainants, v. Peter C. Brown et al., executors, defendants.
    [Filed March 19th, 1926.]
    1. An oral contract 'by a trustee to hold, during his lifetime, his own property, in trust for another, will not be enforced in equity against the trustee’s estate unless the contract, and part performance of the consideration, referable to the contract, is established by clear, unequivocal and convincing proof.
    2. Evidence examined and held not to meet the legal test.
    On final hearing.
    Eor the complainants, Mr. Harry E. Newman and Messrs. Durand, Ivins & Carton (Mr. James D. Carton, of counsel).
    Eor the defendants, Messrs. McCarter & English (Mr. McCarter, of counsel).
   Backes, V. C.

The complainants, H. Ely Havens, Allen D. Havens and Michael Giff, allege that in June, 1911, they entered into an agreement with Oliver H. Brown, now deceased, whereby Brown agreed to purchase for them a certain lot, one hundred by one hundred and fifty feet, on Clifton avenue, Lakewood, erect on it a store building, and stock the store with house furnishing goods and hardware, and to hold the same in trust for them (fifty per cent, for H. Ely Havens and twenty-five per cent, for each of the other complainants); that Brown was to retain the legal title to the property during his lifetime and to reserve to himself from the net profits of the business an amount approximately equal to the interest his investment, which was agreed upon to be $3,000 per annum. That they had been Brown’s employes for many years in his furniture store in Lakewood, which he had just then sold, and that' they were about to become associated with others in a similar line in Lakewood, and they set up as a consideration for Brown’s undertaking that they, or some of them, would, during Brown’s lifetime, continue to work for him during the summer seasons in his furniture store at Spring Lake, and that they would not engage in any competing or other business than that in the Lakewood store. That Brown bought the land, taking title in his own name, built the store and stocked it, and put them in possession September 12th, 1912, and that they exclusively operated and conducted the business as their sole and separate property until the death of Brown, April 1st, 1924; that they devoted their whole time and attention to building up the business, worked for Brown during the summer seasons at his Spring Lake store, and that they drew but small weekly salaries for their necessary support, and as a result they have materially increased the business and the value of the same; that they put back into the business all the profits except the weekly drawings and the amount paid to Brown annually, representing the interest on his outlay; that the services performed by them for Brown were of such special and exceptional character that they could not be adequately measured by ordinary pecuniary standards, and that it was not the intention of the parties to so measure them; that they took over the premises as their own separate property “subject to the trust agreement entered into between them and the said Brown whereby the said Brown was to hold the legal title to said premises in order to enable him to have the advantage of the special services rendered by the complainants, or some of them, in said Brown’s separate business at Spring Lake.” The prayer is that Brown’s executors be decreed to convey the lands, building and merchandise in the store.

Brown, for many years and up until his death, had furniture stores at Spring Lake, Asbury Park and Lakewood. He was a self-trained business man, shrewd and close in trade, and he prospered, leaving a large estate. In 1911 he sold his Lakewood store intending to quit the town, and the two Havens, who long had been his clerks, and Giff, then a mere boy, who had driven his delivery, were out of jobs. In June, 1912, he bought the site on Clifton avenue, Lakewood, for $15,000, put up a store at a cost approximated at $11,000 and stocked it with $10,000 worth of merchandise. Business started in September, 1912. H. Ely Havens took over the management. The other two complainants assisted in the store. It was left to them to buy and sell the merchandise, hire the help and to carry on with little or no supervision by Brown. The business was carried on in the name of O. H. Brown. His credit was used, and accounts were billed in his name. The store’s bank account was in Brown’s name, and he signed all checks — in blank and in batches — to be filled out by the Havenses as the business required. All accounts were paid out of the store’s resources, but not with Brown’s accustomed promptness practiced by him in his Spring Lake and Asbury Park stores, to which thereafter he devoted his activities. A new set of boobs was started and careful accounts kept of the store’s dealings with Brown and his Spring Lake and Asbury Park stores, from and to which goods were bought and sold. Brown, who had given his former Lakewood store personal attention, stopped in at the new one only about once a month, and then casually while in town attending directors’ meetings of a local bank. Statements of the condition of the business — its assets and liabilities — were rendered annually by the Havenses to him, and he paid the federal tax on the income as his personal income. In 1915 Brown made additions to the Lakewood store at a cost of $9,400, some of which was paid out of the proceeds of the store and charged to Brown, and the balance, $6,900, was paid by Brown. The interest on a mortgage, of $10,000 on the premises was paid out of the business, and in 1918 $4,265.17 of the principal was paid out of the store’s proceeds and the balance by Brown. A lease on part of the premises to a tenant was negotiated by Havens in the name of Brown, and the- rent was paid by check to the order of Brown and used in the business. Brown’s withdrawal from the Lakewood store amounted to, as the complainants say, $15,794.17, and, as stated by the defendant, $20,394.05. His total investment was, approximately, $35,000, and the profits of the store during the years of operation were, it is said, $70,000. This is the background of the following testimony offered by the complainants of declarations made by Brown, which it is argued tend to prove that he bought and held the property in trust for the complainants.

In the negotiations for the land Brown said to the owner, “I am buying this property — -I want this property for these boys [complainants]. They have been good boys.” To the managing editor of a local paper, in which he wanted a news ad. for the new store, Brown said “that he had bought this property and built this new store across the street. They were moving out of the old store, and that the Havens boj^s and Mr. Giff were the new owners of this property.” The news item, after describing the store, reads: “It is undoubtedly interesting to the patrons of the store and the friends of H. Ely Havens that, after twenty-one years connection with Mr. 0. H. Brown in the furniture business, he and his brother, Allen D., and also Michael Giff, have been taken into the business and now have an interest in the store.” Eive traveling salesmen, who sold him goods for his Spring Lake and Asbury Park stores, upon being solicited for trade with the Lakewood store, were referred by Brown to the Havens brothers or Ely Havens, and to one of them he said, “I have nothing to do with that store,” and to another, “I have not anything to do with it. * * * You got to see the Havens brothers; they are the ones you have got to see. They do their own ordering there, and they are right there.” To his life-long friend Dwyer, who, in 1921, commented on how hard the boys were working, Brown retorted, “Well, why shouldn’t they work very hard?” and being asked why, he replied, “Because they practically own that business,” and “your little friend Mike is also interested.” To a customer in his store in Spring Lake (Mrs. Thornton), upon whom Brown was waiting, and who asked for articles similar to those she had purchased at the Lakewood store, and was told that if she was Ely Havens’ customer to go back there and get them, as he did not want to bother with Ely Havens’ customers, upon being queried, “Why, its your store, Mr. Brown,” he replied, “Mine with a string to it,” and when she remarked “I have had gifts like that myself,” he answered, “Well, they sort of lease it,” and then, upon her remarking how hard the boys worked, he said that “Well, there is no credit to any man when he is working for himself.” To two witnesses, who solicited him for advertisements and subscriptions to a local newspaper, Brown said he had nothing to do with the Lakewood store, and referred them to Mr. Havens, or to Ely, Allen and Mike. To a clerk in his Spring Lake store (Warner), who was getting out some draperies for one of Brown’s numerous seashore cottages, he said: “That is right. I am glad to see you fix that up. I got to look to you fellows to do this. I am not able. [This was in 1923. Brown suffered a stroke in 1921.] You take care of them and I will take care of you. The Lakewood store I have nothing to do with; that belongs to Ely, Allen and Mike. I will fix this store the same.” (For the witness, as he thought), Brown told his chauffeur, who wanted some repair instruments from the Lakewood store, that “You’ll have to ask Ely. I have got nothing to do with it. You will have to take it up with him.” To a real estate agent (Eau), who asked him if he wanted to sell his Lakewrood store, he replied, “It is up to the Havens’ boys, and I will take it up with them for you.” One witness overheard Brown says to the manager of a local hotel “that he never would have built the store in Lakewood again after he had sold the old store if it had not been for the boys.” Dr. Disbrow, in a casual conversation, asked Brown why he had sold his corner store and built in the middle of the block, to which he answered, “Well, I’ll tell you, Doctor, how it was. Ivan Thompson was after me all the time to get that corner. I set a price on it and he took me up. I didn’t care to do business any more anyway, and I thought to let the thing go. But the boys come to me. They have been with me a number of years. They are sort of half crying over the thing — -it throwed them out of work — they wouldn’t have anything to do, puts them in a bad place. Why, I felt sorry for the boys — I can buy the Broderick place and put them up a store so that they can have something to do to work on. I don’t care about it myself, but the boys feel awfully about that — they were out in the cold.” Dr. Dis-brow says that Brown also stated that “they had not sufficient means themselves to go on with the business, so he came to their rescue.” ' •

The complainants were barred by the statute and objections from testifying.

There is not a word of .proof of an agreement by Brown to hold the property in trust for the complainants during his lifetime, and that they, in consideration, agreed not to engage in a competing business, and that they, or some of them, would work for him during the summer season in his store at Spring Lake, and that he was to have the interest on his investment fixed at $3,000 annually — the alleged contract upon which the complainants base their action. Nor is it an admissible deduction from the history of the case that the contract set up by the bill was the basis of the relation between the complainants and Brown. That there was some arrangement between them, not common to the ordinary relation of master and servant, is manifest. The case as made out is not inconsistent with that relationship and the promise of a reward of some kind, but that it was Brown’s undertaking that he was, during his lifetime, to be a mere trustee and these complainants the beneficial owners of his land, store and stock is highly improbable, and is challenged by his continued ownership and control of the property and business. And the yearly'reports rendered by complainants to him of the status of the business, and the payments by him of the income tax on the annual profits of the business,- to their knowledge, were sensible acknowledgments that their interest, whatever it was, was subordinate to his ownership. The ease also suggests the idea that Brown had set -them up and backed them in the business, but his grip on the property and business until his 'death leaves the impression that this was not unconditional and independent. What the arrangement was rests in speculation, not proof. That he agreed to huy and hold the land and building in trust for the complainants is not even a permissible surmise.

A thing that attracts attention is, why, if the complainants were the equitable owners of Brown’s Lakewood store, they did not have their rights reduced to writing, or have it declared, in equity, in Brown’s lifetime, when he could have assented or defended, and especially why this was not done in the last three years of his life, after the stroke, when it was, apparent that his days were numbered?

The contract sued upon rests entirely in parol. To guard against fraud upon estate the law requires that such contracts must be clearly proven. To justify a decree of specific performance, which in this case would take from the Brown estate and give to the complainants’ property, worth $100,-000 and upwards, the proof must be certain, definite, reliable and convincing. Vreeland v. Vreeland, 58 N. J. Eq. 387; Cooper v. Colson, 66 N. J. Eq. 328; Midmer v. Midmer Executors, 26 N. J. Eq. 299; Cutler v. Tuttle, 19 N. J. Eq. 519. The question of whether this oral contract is-taken out of the statute of frauds by part performance is not, considered. The exceptional character of the services rendered, and relied upon as part performance, consisted of' clerking in Brown’s Spring Lake store and laying linoleum,, oilcloth and carpets for his customers, the value of which may be easily estimated. Such services would appear to be not sufficient part performance. Cooper v. Colson, supra. The other alleged consideration, that the complainants would, refrain from engaging in a competing business with Brown in Lakewood, is fanciful. Brown had no business in Lakewood, and contemplated none with which there could be competition. “In every case, in order to take the case out of the-statute on the ground of part performance, irrespective of other questions, two things are requisite. The terms of the contract must be established by the proofs to be clear, definite and unequivocal, and the acts relied on as part performance must be exclusively referable to the contract.” Cooper v. Colson, supra.

The complainants’ proofs far from measure up to the standard fixed by law, and the bill will be dismissed.


text:
    Roderick D. Grant, complainant, v. Steenland Construction Company and Nordhoff Land Company, defendants.
    [Decided April 7th, 1926.]
    1. A trust may result in favor of one who at the time of the purchase pays the purchase price, or binds himself by an absolute obligation to pay it, though the legal title be taken in the name -of another; but a trust will not result in favor of one who guarantees the obligation of another to pay the purchase price.
    2. A joint venture in the sale of a piece of real estate, the defendant paying the purchase price and taking title in his own name, is within the statute of frauds and unenforceable unless in writing.
    On bill, &c.

      Mr. Andrew J. Whinery, for the complainant.

      Messrs. Morrison, Lloyd & Morrison, for the defendants.
   Backes, V. C.

The complainant, Grant, obtained an option from the Nordhofi Land Company to purchase a tract of land, about ■one hundred and five acres, in Bergen county, of which the parcel in controversy is a part. Before his option expired he interested Peter M. Steenland and his brother Rollo, the stockholders of the defendant Steenland Construction Company, in his enterprise, and on December 10th, 1923, secured a second option running jointly to himself and the Steenland company, by the terms of which they acquired the right to purchase parcel A of said land, about seventy-five acres; at $2,000 per acre, and to pay for the same by their joint and several bond for the total of the purchase price, payable January 1st, 1934, with six per cent, interest, payable January 1st, 1927, and semi-annually thereafter, secured by mortgage on the land. If the option as to parcel A be exercised, executed and performed, then the option as to parcel B, constituting the remainder of the Nordhoff tract, should be available until January 1st, 1929, upon substantially the same terms. The option as to parcel A was duly exercised by the complainant and the Steenland company December 17th, .1923. By a supplemental agreement a few acres of parcel B were added to parcel A and included in the deed and mortgage. The deed and bond and mortgage were delivered February 13th, 1924. The deed was made to the Steenland Construction Company and it executed the bond and mortgage for $153,178 in the terms of the option. Grant and the two Steenlands signed a guarantee annexed to the bond in this language:

“JPor value received the undersigned, Roderick D. Grant, Peter M. Steenland and Rollo Steenland, hereby jointly and severally guarantee the prompt payment of the principal of the within bond together with Hie interest thereon, and Roderick D. Grant unconditionally guarantees the performance of all the terms, covenants and conditions of the within bond and of the mortgage accompanying said ibond.”

The laud was bought for subdivision and development, and by arrangement between the optionees and owner the title was taken in the name of the Steenland Construction Company for greater facility and convenience in selling and conveying lots, with the understanding that it was to be held for the joint benefit of the optionees. Grant had no money; that was well known to the Steenlands. He was to have a drawing account of $100 per week during the promotion. He brought the proposition to the Steenlands to finance and promote with his help, and they were to share the profits equally. It was thought and hoped that the cost of development and payment of the mortgages could be anticipated from the proceeds of the sale of lots and that there would be a handsome profit. In this they were disappointed. During the first year, despite the activities of both Grant and the Steenlands, piz houses were built, but only one was sold. The Steenlands became dissatisfied and abruptly repudiated Grant’s interest in the enterprise on December 29th, 1924. They had spent $5,500 in surveys, blueprints, engineers, &c., in preparing .the tract for market and for advances to Grant, and the due date was rapidly approaching for part payment on the mortgage — payment for releases on ten per cent, of the area of the tract. It is open to suspicion that the reason for the Steenlands’ conduct was that they saw large profits ahead .and felt that Grant’s share was disproportionate. Grant insisted that they carry out their bargain or return the property to him so that he could seek capital elsewhere to promote the scheme, and after considerable futile negotiations to reach a working agreement, in which Grant offered to take a third instead of half of the profits, this bill was filed for an accounting and a declaration of the complainant’s right to an equitable estate or interest in an undivided half of the tract and a conveyance thereof of the legal title.

The complainant’s case cannot be sustained upon the theory of a resulting trust. In order that a trust result in his favor it must appear that at the time of purchase he paid his share of the purchase price, or bound himself by an absolute obligation to pay it. 3 Pom. Eq. Jur. § 1037; Krauth v. Thiele, 45 N. J. Eq. 407; Down v. Down, 80 N. J. Eq. 68; Phillips v. Phillips, 81 N. J. Eq. 459; affirmed, 83 N. J. Eq. 345. He did neither. The Steenland company alone, by its bond secured by mortgage, incurred the obligation to pay the consideration. The complainant’s guaranty of the bond and mortgage was a separate and independent contract with the holder to pay according to the tenor of the bond and mortgage in the event that the Steenland company failed to pay. It was collateral to, not a part of, the original obligation of the Steenland company. 12 R. C. L. 1053; Perkins-Goodwin Co. v. Hart, 83 N. J. Law 471. A trust may result in favor of one who obligates himself to pay the consideration price, but not to one who guarantees the obligation. The principle upon which this type of resulting trust rests limits the equity.

A trust does not result to the complainant because he and the Steenland company were equitable owners in common of the land by their joint acceptance of the option, and because he, in effect, conveyed his equitable estate to the Steenland company, by consenting to the conveyance by the Nordhoff company to it of the legal title, upon its promise to hold a moiety to his use. Had he held the legal title and conveyed it to the Steenland company upon parol trust to his use, no trust would have resulted, and his right of recovery of his equitable estate is no better than would be his right to recover his legal estate. In the Down Case, which expresses the views of the authorities on the subject in this state, it is held that, upon a conveyance of the legal estate to the use of the grantee, no trust results upon his promise to hold it to the use of the grantor, and that unless the promise is in writing it is not provable under the statute of frauds to establish an express trust, and this concise statement of the law is quoted from Fretz v. Roth, 70 N. J. Eq. 767: "Where a use is declared by a deed operating under the statute of uses, no other use or trust not expressed in writing can be shown.”

The action cannot be maintained upon the ground of a joint venture in the sale of real estate. The contract was not in writing. The point is decisively settled, so far as this court is concerned, by Yice-Chancellor Learning in the recent case of Partridge v. Cummings, 99 N. J. Eq. 14, in which he held that a parol contract of joint venture for speculation in real estate, in which one party engages to acquire in his own name a contract of purchase of certain land and to hold the contract of purchase and to cause operations under it in equal interest with the other party who advanced no money, wasxone that concerned an interest in land and to be within the fifth section of our statute of frauds, which provides that no action shall be brought upon a contract concerning an interest in land unless the contract shall be in .writing signed by the party to be charged; and he further held that equitable as well as legal interests in land were .embraced within the statute. • The vice-chancellor referred to the conflict of opinion as disclosed in the note in 18 A. L. R. 484, and adopted as sound in principle the doctrine of Mr. Justice Story in Smith v. Burham, 3 Sumn. 435, which followed in substance by Vice-Chancellor Pitney in Schultz v. Waldons, 60 N. J. Eq. 71. The rule of the Partridge Case is limited in its scope to simple contracts of joint venture in the sale of lands; other attending circumstances may render the statute inapplicable; as the authorities sh'ow, but the fact that in the present case the complainant surrendered his option as part consideration for the joint venture, a feature absent in the cited case, is not sufficient to take it out of the statute.

The bill will be dismissed.


text:
    Joseph Mechanick, complainant, v. Gustav Duschaneck and Martha Duschaneck, defendants.
    [Decided April 16th, 1926.]
    1. To a common bill for the specific performance of a contract -of sale the parties to the contract are the only proper parties.
    2. A subvendee is not an assignee of nor privy to the contract between the owner and his vendee, the vendor of the subvendee, and cannot enforce the original contract and compel the owner to convey direct to him.
    3. Query. Has not a subvendee such an equity in the contract between the owner and his vendee, the vendor of the subvendee, as to entitle him to a specific performance of the original contract in a suit to compel his vendor to perform?
    On motion to strike bill.

      Messrs. Wolber & Gilhooly, for the motion.

      Mr. Edward S. Bessman and Mr. Joseph S. Nardiello, for the complainant.
   Backes, V. C.

The defendant Dusehaneek, by contract in writing, agreed to sell and convey his land to one Abruzzo. Abruzzo assigned the contract to O’Donnell & Arotsky. O’Donnell & Arotsky agreed in writing to convey the land to the complainant, subject to acquiring title. The bill is to enforce the original contract and compel Dusehaneek to convey to the complainant.' The complainant cannot recover directly on the original contract. He is neither party nor privy to it; he is not an assignee. McVoy v. Baumann, 93 N. J. Eq. 360. To a common bill for the specific performance of a contract of sale the parties to the contract are the only proper parties. Bacot v. Wetmore, 17 N. J. Eq. 250.

But the complainant ought not be put out of court. He may have an equity which he is entitled to enforce. There is authority for maintaining a suit by a subvendee against the owner to compel him to perform his contract with his vendee, and in the same suit to compel the complainant’s vendor to specifically perform his contract. 25 R. C. L. 327; Fry Spec. Perf. 73, 74.

The motion to strike will prevail, with permission to amend. The original vendee and the vendors of the complainant must be made parties, and properly charged. The question whether the complainant may recover on his amended bill is not decided, and will be authoritatively disposed of only after the defendants’ counsel is heard on motion to strike the amended bill.