author: Stevenson, Y. 0.

text:
    John D. Van Horn v. Samuel R. Demarest, Jr., and Byron G. Van Horn, executors of John C. Van Horn, deceased, et al.
    [Decided November 26th, 1909.]
    1. Upon a bill by the complainant against the executors of a testator and others, not for the specific performance of any contract, but for compensation or damages on account of the breach of a contract alleged to have been made by the testator whereby he legally bound himself to provide, by will or otherwise, for the accession by the complainant, upon the testator’s death, to a parcel of his real estate and a large share of his remaining estate—Held, that the rights, legal or equitable, asserted by the complainant, must be based upon a contract made by the complainant with the testator and that the testator’s will is not in litigation, and held, after examination of the evidence, that no such contract was proved.
    2. When property is transferred, or services rendered, upon the understanding that compensation is to be rendered therefor through a legacy or devise, the value of what has been so supplied is generally recoverable in an action at law.
    3. Where the decree of this court, on its face, will be within its jurisdiction '(i. e., involve no proceeding foreign to the court, and grant no remedy with which the court is not equipped), it is generally safe for tlie court to retain the bill and proceed to decree, even though the whole case has turned out to be strictly cognizable at law, provided, as here, no objection is made by the parties to the litigation, and any right of trial by jnry has been waived, and provided further, that the court, for its own protection, does not feel called on to dismiss the bill at the end of the hearing.

      Final hearing on bill, answers, replications and proofs, taken in open court.

      Mr. Elmer W. Demarest, for the complainant.

      Mr. Peter W. Stacjg, for the defendants.
   Stevenson, Y. 0.

It is somewhat difficult to determine under what head of equity, 'if any, the bill of complaint in this cause can be classified. It is not a bill for the specific performance of any contract. Ho contract is alleged or proved which was capable of specific performance when the bill was filed, as the complainant then well knew. The bill perhaps may be best described as a bill for compensation or damages on account of the breach of a contract alleged to have been made by the. testator, Garret C. Yan Horn, with the complainant, by the terms of which Garret C. Yan Horn legally bound himself to provide by will or otherwise for the accession by the complainant, upon the death of said Garret C. Yan Horn, to a parcel of real estate and a large share of the remaining estate of the testator. This statement of the object of the bill, if substantially accurate, indicates the jurisdictional question presented by the case.

[The vice-chancellor then proceeded to show that the rights, legal or equitable, asserted by the complainant must be based upon a contract made by the complainant with his deceased uncle Garret C. Yan Horn—that the will of Garret C. Yan Horn was not in litigation in this case, the same having been admitted to probate after the complainant had had abundant opportunity to contest its validity; that the complainant might be conceded to be suffering a hardship on account of the change in his uncle’s testamentary purposes, but that no such hardship could be recognized in this ease or be made the basis of any equitable relief; that perhaps courts, as well as juries, in cases like this, where testators have changed their minds sometimes are too ready to give support to a feeble case of broken contract because of a very strong ease of disappointed testamentary expectations.]

The complainant in this case, in my judgment, fails to establish any contract with his uncle, the testator, by which the complainant, upon the death of his uncle, was to receive the farm, or any portion thereof, or any share of the uncle’s other estate.

[The evidence on this subject, which is very voluminous, was set forth and discussed by the vice-chancellor at length for the purposes of the argument of the cause before the court of errors and appeals. The vice-chancellor regards tire publication of this discussion of mere matters of fact as unnecessary.]

The declaration of testamentary intentions and purposes even when the beneficiary of those intentions and purposes acts upon such declaration to his injury, does not necessarily constitute a contract. The lure of a legacy is often held out to attract attention and service. Personal attention and service are often assiduously rendered in the hope of a legacy. When property is transferred or services rendered upon the understanding that compensation is to be rendered therefor through a legacy or a devise, the value of what has been so supplied is generally recoverable in an action at law. Brown St. of F. § 118; Duvale v. Duvale, 54 N. J. Eq. (9 Dick.) 581, 588.

The defence of the statute of frauds is available to the defendants under their answer which denies the making of the contract. Lozier v. Hill, 68 N. J. Eq. (2 Robb.) 300, and cases cited on p. 305.

Counsel for the complainant admits that the statute of frauds would bar any action at law on the alleged contract to devise the farm. Whether parol evidence of a lost memorandum in writing can be admitted is a matter about which the decisions are said to be conflicting. Brown St. of F. 346. If evidence that a written memorandum once existed can satisfy the statute, it is a safe rule to insist that the proofs must be “reasonably clear and certain.” 29 Am. & Eng. Encycl. L. (2d ed.) 875. If we assume that the letter described in the amended bill constituted a sufficient memorandum—a matter certainly open to debate—the evidence that such a letter was ever written by the testator is, to my mind, far from convincing for reasons which have been heretofore stated. But extensive discussion of this subject is unnecessary. Counsel for the complainant does not claim that any sufficient memoranctum in writing has been proved in this case; his contention is that part performance of the alleged contract on the part of the complainant takes the case out of the statute! This argument, it seems to me, is fallacious because all the alleged acts of part performance are plainly referable, not to any contract to give the farm to the complainant at the testator’s death, but to the contract which confessedly existed between these two parties in pursuance of which the complainant lived upon and worked the farm. It is true that the complainant for four years tilled this large farm in pursuance of a contract, but the difficulty is that nothing that the complainant so did during all this period presents the slightest indication that the contract contained the provision which is the subject of the dispute in this case. An ordinary tenant of a farm holding under a lease, verbal or written, fixing the rent which he is to pay and the use which he is to enjoy of the demised premises, cannot invoke his life and work on the farm as evidence that'as a part of the contract the farm was to be conveyed to him. The rule which gives efficiency to acts in the way of part performance of a contract to take the contract out of the operation of the statute. of frauds only in case those acts are plainly referable to the contract, has been fully adopted and repeatedly applied in this state. Vreeland v. Vreeland (Chancellor McGill, 1895), 53 N. J. Eq. (8 Dick.) 387; Cooper v. Colson (Court of Errors and Appeals, 1903), 66 N. J. Eq. (21 Dick.) 328. I cannot see how the defendant’s occupation and cultivation of this farm and his care of these old people on the farm could possibly be deemed such efficacious part performance of this alleged contract to give the farm to the complainant without practically overruling the decision of our court of last resort in the last, cited case. The court of errors and appeals, through Mr. Justice Fort, say (at p. 330) : “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.” This opinion and the cases therein cited also support the general proposition that where the services rendered as the consideration of the promise to make the devise of land are capable of complete compensation in an action at law upon a quantum meruit, the case stands within the operation of the statute. In the most of the cases of the class to which the present case belongs where complainants have been successful, the court has found that the remedy on the quantum meruit would be inadequate; that the defendant had changed his position in life, sacrificed his prospects or in other wa}rs subjected himself to loss of an indeterminate nature and extent so that he would suffer from hardship, or even fraud, if the land were not awarded to him. This feature is conspicuously absent in the present case.

It could hardly be gravely asserted on behalf of the complainant that what he did and suffered on behalf of his aged uncle while he was living on the uncle’s farm at Closter, called for compensation to the extent of $68,000, or even $7,000, which counsel for the complainant estimates as the value of one-half the farm.

If we leave the statute of frauds out of view it seems to me that for reasons which perhaps have already been sufficiently exhibited, the contract which the complainant undertakes to prove in this case is not one which would be specifically enforced by a court of equity. The uncertainty as to the exact subject-matter of the contract, its improvidence, its lack of consideration moving to the testator, and the laches of the complainant in respect of the enforcement of his rights under an important part of the alleged contract would, I think, bar the complainant of relief. But as stated at the start, this is not and could not be a suit for the specific performance of any contract. It is a suit to recover damages for the breach of a contract. The complainant does not seek to have the farm conveyed to him, but, on the contrary, admits in his bill that the farm is beyond his reach. The complainant does not seek to recover a legacy but a sum of money which will compensate him for the loss of the legacy which he alleges the testator bound himself to leave him in his will. The complainant, if successful, would be theoretically placed in the same positiop as if the legacy had been given to him in the will, but the remedy thus secured is not technically the specific performance of a contract. Where land is the subject-matter of the contract of the testator the case may be different. Where the contract deals with a legacy the pecuniary recovery at law or in equity, in case of a breach, is no more an instance of specific performance than where the defendant is compelled by stress of judgment and execution at law to pay the amount of his promissory note with interest.

During the progress of the trial the question was raised by the court whether the complainant’s case as alleged or proved brought it within the cognizance of equity. The defendants by their counsel raised no such point either in their answers or at any time during the progress of the, trial. The answers joined issue upon the allegations of the bill and the proofs taken and the arguments submitted were alL addressed to the proof or disproof of those allegations. As has been heretofore several times pointed out, this is not a suit for the specific performance of a contract because, as the bill alleged, the land had been conveyed away and placed beyond the reach of the complainant during the lifetime of the testator. The cases which establish the jurisdiction of a court of equity to retain a bill for specific performance and award the complainant damages, where prior to the filing of the bill, and without the knowledge of the complainant, the subject-matter of the contract has been put beyond reach, do not in the slightest degree support the jurisdiction of the court in this case.

The complainant’s case, however, as alleged and as exhibited in the proofs should probably be regarded as exhibiting some equitable feature. If the widest claim of the complainant had been recognized and enforced, an accounting according to the insistment of complainant’s counsel would seem to be necessary, and other proceedings might follow which could not be conveniently taken in a court of law. There is also authority, I think, for the proposition that the conveyance by the testator of the Closter farm to Dr. Curtiss in the spring of 1901 without the knowledge of the complainant would have been a fraud upon the complainant if the complainant had then been the equitable owner of the farm under a contract which gave him the farm absolutely upon the testator’s death. If this transaction was fraudulent the defendant Byron G. Yan Horn participated in the fraud.

The scintilla of equity is perhaps as perceptible in this case as it was in Palys v. Jewett, 32 N. J. Eq. (5 Stew.) 302.

See Varrick v. Hilt (Court of Errors and Appeals, 1903), 66 N. J. Eq. (21 Dick.) 442; Lehigh Zinc Co. v. Trotter, 43 N. J. Eq. (16 Stew.) 185, 204; Seymour v. Long Dock Co. (1869), 20 N. J. Eq. (5 C. E. Gr.) 396, 407; Coast Company v. Spring Lake, 56 N. J. Eq. (11 Dick.) 627; Mertens v. Schlemme, 68 N. J. Eq. (2 Robb.) 544, 548.

It may be that the doctrine of scintilla equitatis will be found to have a relation to the jurisdiction of the court of chancery analogous to that which anciently the doctrine of scintilla juris bore to the support of a shifting use. Where the decree of the court on its face will be within its jurisdiction, i. e., involve no proceeding foreign to the court, and grant no remedy with which the court is not equipped, it seems to me that it is generally safe for the court to proceed even .though the whole case has turned out to be strictly cognizable at law, provided no objection is made by the parties to the litigation, and any right of trial by jury has been waived, and provided further that the court for its own protection does not feel called upon to turn the litigating parties away at the end of an expensive trial. In such case the doctrine that consent cannot confer jurisdiction seems to be inapplicable. The supreme court by consent of the parties cannot grant a judgment of divorce. The court of chancery with the consent of the parties at the end of an expensive litigation cannot grant a decree ousting the defendant from the office of sheriff and giving such office to the complainant. Where, however, the parties have come into a court of equity in good faith not seeking to impose on the court, and have tried their case, the mere fact that the absence of some evidence or the presence of some evidence leaves the case subject to the jurisdiction of the courts of law, ought not, I think, to induce the court on its own motion to decline to proceed to a decree. The parties to a litigation in the court of chancery have a right to stipulate evidence into the cause which the court will receive even though such evidence is essential to exhibit a case of equitable cognizance. Where the parties do not expressly supply the necessary jurisdictional facts by a stipulation, it would seem that their conduct in litigating the cause and insisting that the court shall hear and determine the same may well be deemed equivalent to such a stipulation. See Varrick v. Hitt, supra, 444. Of course, the court of chancery will guard itself against imposition and will not permit parties to try an action in equity which they know is exclusively cognizable by a court of law. No .doubt this court has the power to reject a formal stipulation signed by all the parties to a cause if necessary to thwart such an attempted imposition. The parties themselves, however, would all be estopped to deny the existence of the facts necessary to found equitable jurisdiction which they had stipulated into the case.

I have considered with some care the question whether or not the decree in this case denying the complainant relief should be without prejudice to his right to bring an action at law either on a quantum meruit or for damages on account of the breach of the alleged contract or contracts between himself and the testator. This law suit, however, it seems to me, is the very thing which this court has now tried by the procurement of the complainant and with the consent of the defendant, both parties insisting that such trial should be held. If the complainant had filed a bill strictly for the specific performance of the contract to give him the farm, and on account of the statute of frauds or on account of the indefiniteness of the promise or its testamentary character specific performance had been refused, the case would have been entirely different and the complainant might properly be remanded to the law court for any action which he might be able to maintain on a quantum meruit for the value of any services which he rendered upon the understanding that such services would be compensated for by a devise of land. If this court has jurisdiction to decide what it has undertaken to decide in this case, it seems to me that the complainant can get all that is due him either by the action of this court or of the court of errors and appeals, without being required to start over again in an action at law. It may be again noted in this connection that it does not appear from the evidence that the complainant rendered any service or gave anything of value to his uncle, the testator, for which he was not fully and fairly compensated under the terms of the contract with reference to the occupation and management of the farm. This suit is a bold effort to recover in equity a very substantial fortune estimated by counsel for the complainant at over sixty-eight thousand dollars in cash, not one dollar of which the testimony in the case shows the complainant ever earned in any way. I see no reason why the decision of this law suit in this court and in the court of last resort on appeal should not be final as to all matters which a court of equity has jurisdiction, to try in the case. Whatever may be the effect of the decree as an estoppel, there seems to be no reason for limiting that effect by any express reservation.


source: Caselaw Access Project

author: Garrison, V. C.

license: Public Domain

text:
    Florine A. Deseumeur v. Frederick Rondel.
    [Decided November 19th, 1909.]
    1. A testamentary disposition contained in one writing disposing of property held jointly is a “joint willwhereas, the same document, if it refers to and deals with property held separately, would be a “mutual will.”
    2. In a suit for specific performance, the court should, as far as possiblt, settle doubtful questions of law affecting the title, and compel the vendee to take a title which the court finds free from defects so far as doubtful questions of law are concerned.
    3. Where the validity of a title depends on facts which are not of such a character as to be susceptible of proof at any and all times by those who may need to prove them for their protection, the title should not be forced on an unwilling vendee in a suit for specific performance.
    4. A contract of two persons on a sufficient consideration for the benefit of a third person is enforceable against the contractor.
    5. An agreement between two persons on a legal consideration to dispose of their property at death in a specified manner, or to specified persons, is enforceable.
    6. B., owning certain lots and personal property, and his wife, owning certain other lots, executed a mutual will, providing for the life use of all of the property by the survivor, and on the survivor’s death that the executors should sell all the real and personal property of which the survivor should die seized and divide the proceeds into two equal parts, one for the benefit of the heirs of the husband, and the other for the heirs of the wife. B. died first, and the paper was probated as his will, after which the wife married another and conveyed all of the lots to her then husband. She thereafter died, leaving a new will bequeathing everything to her second husband, and he died leaving a will by which he devised the lots to O., who conveyed to plaintiff, who also received a deed to two of tlie lots originally owned by B. from his executor.—B'eld, that since the paper .was signed by both parties, if based on a sufficient consideration, it might be enforceable in equity by the heirs of B. and his wife, regardless of her attempt to repudiate the same by her will. But where complainant’s title to the lots depended on a question of fact, proof of which was not necessarily available to the vendee at all times, he would not be compelled to take the title in a suit for specific performance.
    Heard on bill, answer, replication and proofs in open court.
    This is a bill for specific performance. The complainant charges that she is the owner in fee-simple of lots Nos. 195, 197, 199, 202, 203 and 204 on a certain map of the town of West Hoboken in this state, and that on the 25th day of January, 1909, she and the defendant, Frederick Eondel, made an agreement 'in writing by which she agreed to sell and convey the said lots to him for $7,800, free of all encumbrances, except a mortgage for $3,000 then a lien on the premises; that upon the day fixed for passing title she tendered to the defendant a deed, duly signed, sealed and acknowledged, conveying in due form of law the above-mentioned premises, which she claims are free and clear of all encumbrances excepting the said mortgage, which deed the defendant refused to accept.
    The defendant admits the facts charged in the bill, and justifies his refusal by alleging that the complainant had not such a title to the property in question as to require the defendant to take it, and sets up the facts which he claims show that the complainant had not a title in fee-simple free of encumbrances excepting the mortgage aforesaid.

      Messrs. Dorerrms .& Lecour, for the complainant.

      Mr. Jason B. EllioU, for the defendant.
   Garrison, V. C.

The following are the facts as proven before me:

On or before the 2d of June, 1854, Alexander Bisson was the record owner of lots Hos. 195, 197, 199, 202, 203 and 204 on a certain map of the town of West Hobolten in this state. On the 2d of June, 1854, Alexander Bisson and Elizabeth E., his wife, conveyed to Jean Baptiste Teeson lots Nos. 197, 199, 202 and 203, and on the 8th of June, 1854, Teeson conveyed the lots just designated to Elizabeth E. Bisson. On the 20th of June, 1855, Alexander Bisson and Elizabeth E. Bisson signed a paper reading as follows:

“In the Name oe God, Amen. We, Alexander Bisson and Elizabeth Francoise Bisson; nee Wouters; his wife, of Weehawken, in the Township of North Bergen, County of Hudson and State of New Jersey, do hereby, make, publish and declare this our last will and testament, in manner following; that is to say: Whereas we are, at this present time in good bodily health, and of sound and disposing mind and memory, (blessed be God for the same) And whereas it is our mutual desire to make a final settlement of our whole earthly goods and possession," in the manner hereinafter directed.-—And Whereas I, the said Elizabeth Francoise Bisson, am seized in fee, in my own right of certain real estate, with the buildings thereon, at Weehawken aforesaid, which was purchased with the proceeds of my lawful inheritance, as one of the heirs of my father,— .and I the said Alexander Bisson, am possessed of certain personal property therein situated.
“Fvrst. We do hereby order and direct, our executors hereinafter named, as soon as they take upon themselves the management of our affairs, to pay and discharge all our and each of our just debts deathbed and funeral expenses.
“Secondly. It is our will that upon the death of either of us, the whole real and personal property, now belonging to us, or either of us, be possessed, used and enjoyed by the survivor, to have and to hold the same to me the said Alexander Bisson, during my natural life in the event of my surviving my said wife; or me the said Elizabeth Francoise Bis-son, in the event of my surviving my said husband, during the period of my natural life, together with the rents, issues and profits of the said real estate and the full use, enjoyment and control thereof.
“Thirdly. Upon the death of the survivor of us, we do hereby order and direct our executors hereinafter named, to sell and absolutely dispose of the whole real estate and personal property of which such survivor shall die seized and possessed as aforesaid and to divide and set apart the proceeds of such sale into two equal parts, one of which shall become the property of the heirs at law of me the said Alexander Bisson, residing at Paris, in the Empire of France, or elsewhere and the other one half part, shall become the property of the heirs at law of me, the said Elizabeth Francoise Bisson, residing in the Kingdom of Belgium or elsewhere. —It being our mutual will and intention, that this disposition of our whole estate, real and personal, shall take effect upon the demise of the survivor of us the said testator and testatrix.
“Lastly. We do hereby nominate, constitute and appoint, Edward Dubois of Weehawken aforesaid and Frederic J. Emerich of Hoboken, executors of this our last will and testament.
“In Witness Whereof we have hereunto set our hands and seals the twentieth day of June in the year of our Lord one thousand eight hundred and fifty five.
“Signed, sealed, published and declared by the said testator and testatrix, to be their last will and testament, in the presence of the said testator and testatrix and in our presence, who in their presence and in
the presence of each other at their request subscribed our - as
witnesses hereto.
“Bisson [l. s.]
“E. E. Bisson [l. s.]
“Alex. Watson.
“Adolph W. Marten, City of Hudson.
“Wm. Edelstein.”

This paper, on the 22d day of December, 1859, was probated in Hudson county, in this state, as the will of Alexander Bisson, he having died.

Elizabeth E. Bisson subsequently married a man who is indifferently called Vital Dallier or Dallier Vital.

On the 6th of April, 1864, Elizabeth E. and Vital Dallier made a deed to Zelie Hoonan Daveau, purporting to convey lots Eos. 195, 197, 199, 202, 203 and 204.

On the 6th day of October, 1865, the last-named grantee and Jules, her husband, made a deed for the same lots to Vital Dallier.

On the 26th day of October, ,1875, Elizabeth E. Dallier having died in the meantime, a paper was admitted to probate in Hudson county, in this state, as her will, which paper- is dated February 25th, 1863, and by the terms of which she devises and bequeaths everything to her husband, Dallier, and makes him hej; executor.

On the 1st of August, 1879, the will of Vital Dallier was admitted to probate in Hudson county, in this state, by the,terms of which he devised all of his property to Seraphin Clement.

On the 14th of April, 1880, Seraphin Clement made a deed to Elorine A. Deseumeur for lots Eos. 195, 197, 199, 202, 203 and 204.

On the 14th of April, 1880, Frederic J. Emerich, executor of Alexander Bisson, deceased, made a deed to Elorine A. Deseumeur for lots Eos. 195 and 204.

On the 25th of January, 1909, Elorine A. Deseumeur (the complainant herein), by a contract in writing, agreed to convey to Frederick Kondel (the defendant herein), for $7,800 the six lots above described free of all encumbrance, excepting a certain mortgage.

It will be noted that at the time of the making of the paper-writing in form a will by Alexander Bisson and Elizabeth F. Bisson, his wife, on the 20th day of June, 1855, the title to four of the lots, namely, Nos. 197, 199, 202 and 203, was in Elizabeth, and the title of two of the lots, namely, Nos. 195 and 204, was in Alexander.

There is no proof before me concerning the other possessions of either the husband or wife at the date of the making of this paper-writing, or at the date of the probate of it as the will of Alexander Bisson on the 22d day of December, 1859.

The contention of the complainant is that the paper-writing just referred to was a joint or mutual will; that revocability is an essential element of a will, and that Elizabeth had the right to and did revoke the same so far as it affected her and her property.

The complainant points out that after the death of Alexander •his wife, Elizabeth, married Dallier, and, through a conduit, conveyed all six lots to her husband, and subsequently, upon her death, was found to have made a will dated the 25th of February, 1863, devising all of her real estate to Dallier. She therefore claims that Elizabeth (Bisson) Dallier revoked the joint and mutual will, as they term the paper of June 20th, 1855, and transmitted the title (as they claim she had a right to do) to Dallier through whom the title comes to the complainant.

The defendant also contended that the paper of the 20th of June, 1855, was a joint or mutual will, but was not revocable.

Counsel did not produce to the court any direct authority, nor did the court in its own investigation find any direct authority in the State of New Jersey concerning the matter of joint or mutual wills.

There are references in some of the authorities to wills by two parties each in favor of the other, which are sometimes called “counter” or “reciprocal wills.” Duvale v. Duvale (Vice-Chan cellor Reed, 1896), 54 N. J. Eq. (9 Dick.) 581 (at p. 588); S. C. (Court of Errors and Appeals), 56 N. J. Eq. (11 Dick.) 375. See on the general subject, 1 Jarm. Wills 27. Schoul. Wills (3d ed.) 456; 1 Wms. Ex. 10, and there are many cases which deal with agreements to make wills in favor of particular persons, and holding that equity will enforce a specific performance of such agreements. Duvale v. Duvale, supra; particularly, collection of cases 56 N. J. Eq. (11 Dick.) 385; Drake v. Lanning (Vice-Chancellor Pitney, 1892), 49 N. J. Eq. (4 Dick.) 452; Eastell v. Hillman (Vice-Chancellor Pitney, 1894), 53 N. J. Eq. (8 Dick.) 49; Vreeland v. Vreeland (Chancellor McGill, 1894), 53 N. J. Eq. (8 Dick.) 387; Eggers v. Anderson (Court of Errors and Appeals, 1901), 63 N. J. Eq. (18 Dick.) 264; Clawson v. Brewer (Vice-Chancellor Emery, 1904), 67 N. J. Eq. (1 Robb.) 201.

A testamentary disposition contained in one writing and disposing of property held jointly is, I presume, precisely referred to as a “joint will;” whereas, the same document, if it refers to and deals with property held separately, would probably be more precisely termed a “mutual will.”

Excepting as to questions arising out of the probate, I do not see that, in principle, there is any distinction between a single paper signed by two persons disposing of their property in a certain way, and two separate papers, each signed by one, disposing of their property in the same way. The principle upon which the courts have dealt with such dispositions of property has varied in different jurisdictions, and the following cases will be found to have dealt with it, as indicated:

In England cases will be found on each side of the question, the court, in the case of Dufour v. Pereira (1769), 1 Dick. Ch. 419, holding the mutual will was irrevocable after the death of one of the parties, and in Hobson v. Blackburn (1822), 1 Add. Eccl. 274, holding to the contrary.

Lord Walpole v. Lord Orford, 3 Ves. Jr. 402, on the general subject of agreements to make such wills.

Edson v. Parsons (1898), 155 N. 7. 555: Revoeability allowed unless circumstances show valid agreement for mutual wills.

Ex parte Day (1851), 1. Bradf. (N. 7.) 476: Joint will revocable as a will, but enforceable'in equity as a contract.

Everdell v. Hill (1899), 27 N. Y. Misc. 285: Agreement to execute mutual or reciprocal wills revocable during life, but the death of one of the parties fixes the obligations, which equity will enforce.

Cawley’s Estate (1890), 136 Pa. St. 628; 10 L. R. A. 93, see note: Paper signed by both parties; one died; other took the benefits, and later made another will. Latter will admitted as hers. Supreme court affirmed and found that no contract for mutual disposition existed and no consideration. The case, however, seems to me to turn more upon the question of probate than upon the principle which would be applied in a contest between the beneficiaries under the respective wills.

Evans v. Smith, 28 Ga. 98: One paper signed by two, probated as a joint or double will.

Lewis v. Scofield, 26 Conn. 452: Similar will presented and validity upheld.

Betts v. Harper, 39 Ohio St. 639: After death of both signers paper was probated as the separate will of each.

In re Diez, 50 N. Y. 88: Joint will of husband and wife sustained.

Schumaker v. Schmidt (1870), 44 Ala. 454: Two friends joined in a will. Subsequently and during the life of both one made a different will. Original paper held to be a will and not a contract, and therefore revocable.

Humane Society v. McMurtrie (1907), 229 Ill. 519: Mother and son made joint will, giving survivor property with remainder over. Son died leaving a later individual will. Held, two persons may join in single instrument as a will, which may be probated on the death of one as a will, and again probated on the death of the other as her will. Revocable by either at any time before death, at least as to either who has taken no benefit.

McGuire v. McGuire, 74 Ky. 142: Mutual wills, made upon consideration, enforced in favor of beneficiaries thereunder, although one of the parties subsequently made a will revoking the mutual will.

Hill v. Harding (1891), 92 Ky. 76: Joint will sustained with a dictum that it was revocable.

Wyche v. Clapp (1875), 43 Tex. 548: Held, agreements to make mutual wills valid. Effect of agreement not to render wills made in pursuance of them irrevocable, although such agreements may be enforced in equity against the estate of the defaulting party after his decease,

Mullen v. Johnson (Ala., 1908), 47 So. Rep. 584: Mutual wills between husband and wife do not raise a contractual relation, and in determining validity of one of such wills existence of the other is immaterial.

Robertson v. Robertson (Miss., 1908), 47 So. Rep. 675: Joint or mutual will of husband and wife could not be revoked by the widow as to the interest disposed of by the deceased husband.

State Bank v. Bliss (1896), 67 Conn. 317; 35 A. R. 255: Joint will creating common fund to pay debts of each and legacies to third parties not to be probated until both were dead, making each the residuary legatee of the other, was held to present an impracticable scheme, and to be without effect.

In re Davis' Will, 120 N. C. 9; 26 S. E. Rep. 636: Deals with the probate of a joint will after death of one maker.

Best v. Grolapp (Neb.), 96 N. W. Rep. 641; affirmed, 99 N. W. Rep. 837, and Teska v. Dillbrenner (Neb.), 98 N. W. Rep. 57: Joint will not revocable after performance by one.

Buchanan v. Anderson (1905), 70 S. C. 454; 50 S. E. Rep. 12: Joint will disposing of separate property may be revoked in the absence of a valuable consideration to support a contract to dispose as provided in joint will. ■

Bower v. Daniel (1906), 198 Mo. 289; 95 S. W. Rep. 347: Husband and wife, pursuant to mutual agreement, make a joint will whereby each left his or her property to the other for life, and at the death of the survivor all of the property of both to be distributed among their children. Wife dies and husband accepts benefits. He cannot thereafter revoke the will nor make voluntary conveyances contrary to its terms.

Robinson v. Mandell, 8 Cliff. (U. S.) 169: Where two persons agree to make mutual wills and both execute the agree-meat, neither can revoke his will without- giving notice to the other. The death of one makes the contract irrevocable as to the other. In such case equity enforces the agreement.

If the determination of the issue before me turned upon the question as to whether the paper dated June 20th, 1855, was a mutual will, and as such entitled to probate upon the death of Elizabeth the survivor, I shopl-d have to carefully anatyze the authorities and extract therefrom that principle which I thought was founded upon the best reasoning, and determine the issue as thus advised; but, as I shall presently indicate, I do not think that the decision of this case should be put upon this point, and I do not therefore deem it proper for me in this case to decide that which I do not consider to be essential for its determination.

In case of specific performance in this state it has been held that the court should, to the extent to which it is possible to do so, settle doubtful questions of law affecting the title, and compel the vendee to take a title which it finds free from defect so far as doubtful questions of law are concerned. Zelman v. Kaufherr (Vice-Chancellor Stevens, 1909), 73 Atl. Rep. 1048.

But where the validity of the title depends upon facts which are not of such a character as to be susceptible of proof at any and all times by those who may need to prove them for their protection, our courts held that title in such case should not be forced upon a vendee. Fahy v. Cavanagh (Vice-Chancellor Pitney, 1900), 59 N. J. Eq. (14 Dick.) 278; Barger v. Gery (Vice-Chancellor Stevenson, 1902), 64 N. J. Eq. (19 Dick.) 263; Methodist Episcopal Church v. Roberson (Vice-Chancellor Bergen, 1904), 68 N. J. Eq. (2 Robb.) 431.

In my view this ease presents such a condition. I find that the state of this title does not turn upon the settlement of a doubtful question of law, but upon the settlement of a state of facts, and such facts are not susceptible of proof at any and all times by the persons for whose protection such proof is necessary, and, in the case at bar, there are no proofs concerning the circumstances upon which the validity or invalidity of the title depends.

It is undoubtedly the law that if two people, upon sufficient consideration, agree to do something for the benefit of a third, such contract or agreement may be enforced as against the two contractors. It is equally well settled that, upon legal consideration, parties may agree to dispose of their property at the time of their deaths in certain specified ways or to certain specified people. The cases which hold that the courts will enforce the contract to make a certain testamentary disposition of property have already been given.

Without the necessity of considering or deciding whether the paper executed by Alexander Bisson and Elizabeth E. Bisson, his wife, on the 20th of June, 1855, was a will or not, it is perfectly clear that it expressed the understanding and agreement between those people at that time concerning the disposition of their property after their death.

If, therefore, it was founded upon sufficient consideration, a court of equity would sustain the same and decree its enforcement. Thus, it will be perceived, that it is immaterial (if the above statements of law are correct) whether the paper in question is a will, or is an instrument of proof concerning a contract or agreement. In either event, the persons to be benefited would have a cause of action respecting this property, and if they could prove that the parties (husband and wife) upon legal consideration had agreed that their respective properties should go in a certain way they coulcl obtain an enforcement of that agreement.

It may be that during the lifetime of both Alexander and Elizabeth Bisson either could have rescinded this agreement— call it a will, or call it a contract, or an instrument of proof, tending to prove a contract. But I am clearly of opinion that whatever name should be properly used to characterize this paper, it proves, or tends to prove, an agreement between the parties signing it to dispose of their property in a certain way which a court will enforce if made upon legal consideration, and if it be true and proven that at the time the paper was executed, and at the time of the death of Alexander he was possessed of personal property or real estate which was taken over and used by Elizabeth, his wife, by virtue of'the probate of this paper as his will, the agreement thus evidenced has sufficient legal consideration to support it, and the rights under it will be enforced.

ll, for instance, Alexander was a man of means, and Elizabeth had the four lots which were in her name at the time of the making of the paper on the 20th of June, 1855, and they añade this paper, which, as they said was to make a final settlement respecting their properties, and he died first, and she took under the terms of this paper which was probated as a will all of his personal property, and either used it (if it were held that under the terms of the probated will she was entitled to do so), or used it for life (if the narrower estate was held to be vested), I cannot believe it possible that any court would thereafter permit her, under these circumstances, to rescind or repudiate her part of the bargain.

As stated in a previous portion of this opinion, there is no proof before me as to the financial condition of Alexander Bisson either at the date of the making of the paper-writing of June 20th, 1855, or at the time of his death and when his will was probated in December of 1859. I do not decide, because I do not have to and do not desire to decide, anything excepting that which is necessary, what the law would be if proofs in this case disclosed that he had no personal property of any sort at the time of the making of the paper or at the time of his death. He undoubtedly had title vested in him to the two lots Nos. 195 and 204, and Elizabeth, the wife, under the probated will, undoubtedly would have the right to the enjoyment of the rents, issues and profits from those two lots for life. She attempted much more than this, because she included them in a conveyance made by her in 1864 to an intermediary who conveyed to her new husband Dallier.

It should be constantly borne in mind that the real parties in interest under the paper of June 20th, 1855, are not before the court, and are not bound by anything herein. Therefore, even if there were proof with respect to the situation, I doubt whether it would be proper for the court to make a finding upon these proofs in favor of the merchantability of the title and force it upon the defendant.

It might well be that proofs submitted between these strangers would show one state of facts, while proofs adduced in a suit in which the beneficiaries designated in the paper of June 20th, 1855, were parties would show a very different state of facts.

However, I am not called upon to decide what should be done in a case in which such proofs were present. They are not present here.

Under the circumstances, therefore, it seems to me clear that this court should not force the defendant herein to accept this title. It is not shown to be merchantable in the case at bar. The paper of June 20th, 1855, if supported by legal consideration, evidences that which a court of equity will enforce. I purposely do not characterize the paper—that is, I- do not hold because it is not requisite that I should, whether this paper is a will probatable upon the death of both makers, or whether it is a contract which, upon proof of sufficient consideration, will be enforced, or whether it is an instrument of proof evidencing a contract. In either or any event, it is sufficient in this suit to affect the merchantability of the title in question. It is sufficient upon which to found a bona fide claim on behalf of the persons in whose favor it runs, which, if supported by proofs as to. consideration, &c., would entitle them to relief.

Under these circumstances, I am entirely clear that a court of equity should not hold the title merchantable and force it upon the defendant.

In the brief of the complainant there was a heading, without argument or authority, that the complainant had good title to the premises by adverse possession. The proofs upon this point are so slight as to be practically negligible, and I took occasion to inquire of counsel for both parties whether they desired to press this contention further, and they both informed me that they did not. I cannot see that there are sufficient proofs in this case to make it worth while to discuss this question.

I will advise a decree in accordance with these views.


author: Garrison, Y. C.

text:
    Fannie W. Cropper v. Nellie Brown et al.
    [Decided December 10th, 1909.]
    1. The only office of a written objection to the confirmation of a sheriff’s sale in foi'eelosure, under act March 12th, 1880 (Q-en. Stat. 1895 ¶. 2111 § 1/5), and court rule 205, is to urge the overthrow of the sale on the sole ground that the property did not bring the highest and best price obtainable, and an attack on the sale on any other ground must be made the basis of an independent action by bill or petition, and any effort by the purchaser to be relieved of his purchase must be by an independent proceeding, and may be by petition filed before the date fixed for the confirmation of the sale.
    2. The court, on the hearing of the petition by the purchaser at a mortgage foreclosure sale to be relieved of his purchase, filed before the date fixed for the confirmation, must treat the sale as if it were, or were about to be, confirmed in the absence of anything to show that the property did not bring the best price obtainable.
    3. A purchaser at a judicial sale is invested with a definite legal right, recognized and enforced by law, and of which he cannot be deprived except on some legal or equitable ground, and in those cases in which confirmation is required the right is subject to be defeated by the court’s refusal to confirm.
    4.. Where the judicial officer observes proper legal formalities at a judicial sale, and strikes off the property to a purchaser, who thereupon signs the conditions of sale, thereby entering into a contract to purchase the property at the price named, the situation is the same as if the contract were between private parties voluntarily entering into a contract of sale and purchase.
    5. A sheriff’s deed of land sold at a judicial sale relates back to the time of the contract of purchase entered into by the purchaser on the officer striking off the property to him at a public sale, though the deed is not to be delivered at once, and though the purchaser is not entitled to possession until he secures his deed.
    6. The legal title does not vest in the purchaser at a judicial sale until the delivery of the deed, and in the meantime the property is held in trust for him, and the beneficial ownership of the property is vested in him, so that any increase or decrease in value inures to him.
    7. The purchaser at a judicial sale, who on the acceptance of his bid executes a contract to purchase on the conditions of the sale, acquires thereby an equitable interest in the property, so that a loss occasioned by the destruction of a building on the land occurring thereafter, and before the confirmation of the sale, falls on him.
    On petition of Thomas Gormley. Heard upon petition and affidavits.
    On the 21st day of October, 1909, the sheriff of Hudson county, New Jersey, held a sale under a writ of fieri facias issued in the above-entitled suit. At that sale the property was struck off to Thomas Gormley, the petitioner, who bid $2,300. The conditions of sale which he signed provided, among other things:
    f “First. The property will be sold to the highest bidder, subject to confirmation by the chancellor.

      “Second. Ten per cent, of the purchase, price shall be paid when the property offered is struck off * * * in default whereof it may be put
    up again and sold immediately.

      “Third,. The balance of the purchase-money shall be paid on the fourth day of November, A. d. nineteen hundred and nine * * * at the
    sheriff’s office. * * *

      “Fourth. The deed will be delivered at the above time, upon compliance by the purchaser with these conditions, provided said sale is confirmed as aforesaid.

      “Fifth. The purchaser will be held bound by the purchase, whether he attends to receive the deed and comply with the conditions of sale or not. If he does not so comply with them the property may be again advertised and sold, or the purchaser may be held liable for his bid, at the option of the sheriff. In case of re-sale at a less price than the former bid with interest and expenses, the former purchaser will be held liable for the deficiency, to meet which, the money paid by him shall be retained and applied by the> sheriff.
    “I have bid off the property' above described for the sum of twenty three hundred dollars, and agree to comply with the above conditions of sale.”
    The property to be sold was accurately described in a paper annexed to and forming part of the conditions signed by the purchaser.
    On the night of the day upon which this sale took place a house standing upon the mortgaged premises was destroyed by fire.
    This is a petition by Thomas Gormley, the purchaser at the sheriff’s sale, praying to be relieved of his bid, or to have a deduction therefrom of the amount of loss occasioned to the property by the fire. The petition was filed before the date fixed for the confirmation of the sale, and before the day fixed for the delivery by the sheriff to the purchaser of the deed.

      Mr. Maximilian T. Rosenberg, for Gormley, petitioner.

      Mr. William R. Barricklo, for the complainant.

      Mr. Peter Stillwell, for David and Nellie Brown, defendants.
   Garrison, Y. C.

The fact that this petition'is filed before the date fixed for the confirmation of the sale does not, in my view, affect the principle which should be applied in the decision of the case.

This is a foreclosure suit, and the statute requiring confirmation is the act of March 12th, 1880. Gen. Stat. p. 2111 § 15. This statute and rule 205 of this court concerning the same subject-matter recently received judicial construction in this court in the case of Oakley v. Shaw (Vice-Chancellor Walker, 1908), 69 Atl. Rep. 462. In that case the court refers to many of the cases upon this subject-matter, and reaches the conclusion “that the only office of a written objection to the confirmation of a sheriff’s sale in foreclosure, under the act of March 12th, 1880, and rule 205 of this court, is to urge the overthrow of a sale upon the sole ground that the property did not bring the highest and best price that could be obtained for it in cash, and that an attack upon the sale on any other ground must be made the basis of independent action either by bill or petition.” See, also, Bethlehem Iron Works v. Philadelphia and Seashore Railroad Co. (Chancellor McGill, 1892), 49 N. J. Eq. (4 Dick.) 356, and Fleming v. Fleming Hotel Co. (Vice-Chancellor Bergen, 1905), 70 N. J. Eq. (4 Robb.) 509. Any effort on behalf of the purchaser at the sale to be relieved of his purchase must be by some independent proceeding and not by mere objections to confirmation, and may be by petition.

J'“ Since the statute in question, which requires confirmation, has been judicially held to have been enacted for the purpose of enabling the court before the sale is carried out to be assured that the property has brought the best and highest price obtainable in cash at the time of the sale, the court, in this case, must treat this sale as if it were, or were about to be, confirmed, and as it would treat either a confirmed sale or one that required no confirmation, because there is nothing before me to show that the property did not bring the price obtainable in cash - .at the time of the sale, and nothing to show that the sale was not properly conducted and should not therefore be confirmed. • ___

The practice of the English court of chancery in opening sales whenever an offer of a larger amount for the property was made was discarded and not adopted in this state. ‘ Morrisse v. Inglis (Court of Errors and Appeals, 1889), 46 N. J. Eq. (1 Dick.) 306 (at p. 309); Rogers v. Rogers Locomotive Co. (Vice-Chancellor Emery, 1901), 62 N. J. Eq. (17 Dick.) 111 (at p. 118 et seq.); Fleming v. Fleming Hotel Co., supra.

The English practice treats the bidder in the light of one who has made an offer to be reported to the court, and if a larger offer is made by another the sale to the former is not confirmed. This is so radically different from our practice that the English authorities will have to be viewed with great caution, particularly those which lay stress upon the effect of confirmation.

There are some cases in England which hold that there is no contract until the court has confirmed the bidding in the master’s office, but even these cases are doubted by later decisions, and it would not seem, from a consideration of the English authorities, that such, was now the rule there. However that may be, after the courts in England have once determined that the contract of sale was complete, whether they fixed that period at the time of the sale or at the time of the confirmation, they then applied the rule concerning the rights and responsibilities of the parties which, I think, is the correct rule, and which I shall formulate and state hereafter.

Ex parte Minor, 11 Ves. Jr. 558: The estate of a lunatic was sold before the master on the 9th of February, 1805. On the 26th of February there was a petition that the report of the master might be confirmed. On the 28th of February there was a fire, and this was a petition by the purchaser to have the value of the premises destroyed ascertained and the amount deducted from the purchase-money. The argument on behalf of the petitioner was that it was necessary to distinguish this case from those cases in England which are cited in his brief and which hold that from the date of the contract of purchase the purchaser was, in equity, the owner to all intents and purposes, and should gain or suffer, as the case might be, by changes in the subject-matter of the sale, because in this case the highest bidder could not be considered the owner until the confirmation of the report, and if the premises, by accident, were increased in value, as by the discovery of a mine, the court would require an increase of price (citing cases).

The contrary argument was- that, referring to all legal and equitable consequences attaching to sales, the court could not properly distinguish sales before masters from sales in any other manner, and that from the time the purchaser signs the master’s book, and has the report declaring him the purchaser, all those consequences must follow.

Lord-Chancellor Eldon, upon the argument, said: “The question must depend upon the point, What is the date and time of the contract at which it can be said to have been complete ? Is the bidding in the master’s office the contract between the court and the bidder, or only an authority to the master to tell the court that, if the court approves, the court may make a contract with him (the purchaser) upon the terms proposed?” Subsequently, his lordship determined that the loss must fall upon the vendor.

The same judge, in the case of Anson v. Towgood, decided in 1820, about fifteen years after the previous case, said, concerning a sale before a master: “Can anything turn upon the report not being confirmed ? There was a case about a house being burnt down before the confirmation of the report (Ex parte Minor, 11 Ves. 559), but if the tenant for life had died the same night, must not the purchase-money have been paid? The report, I think, when confirmed, must have relation back to the purchase, and the contract, I apprehend, was made the moment that the purchaser’s name was entered in the master’s book.”

And in Millican v. Vanderplank, 11 Hare 135, decided in 1853, the vice-chancellor, Sir W. Page Wood (at p. 140), says: “There are material distinctions between a sale by private contract and a sale by auction before the master in the ordinary view. Sales by auction before the master are of a peculiar character. The person who is the highest bidder knows that he is not the purchaser until the confirmation of the report, and that, until such confirmation, any stranger may apply to the court to open the biddings, and that, upon such an application, the party making it does not necessarily become himself the purchaser, * * * and the property is again put up to auction. All persons bidding at sales before the master are aware that they are of this peculiar character. I cannot, however, concur in the argument which was addressed to me in this case, that a distinction between sales by auction and private contract was that the purchaser was not bound in the former case until the confirmation of the report.

“Lord St. Leonards, in Vesey v. Elwood, 3 Dru. & War. 74, after considering the cases of Ex parte Minor, 11 Ves. 559, and Anson v. Towgood, 2 Jac. & W. 637, came to the conclusion that the purchaser was bound before the confirmation of the contract by the court. lie held this in the strongest case which can be supposed, in which a life dropped in the meantime before the purchaser could, according to the practice of the court, have confirmed the report.”

In the case of Robertson v. Shelton, 12 Beav. 260, the master of the rolls, Lord Langdale, held “By the established rule of the court the purchaser is to be considered, in fact, as the owner of the estate from the date of the order confirming the report, and any deterioration of the property arising from accident, as by fire, without the fault of the vendor, falls upon the purchaser.” In this case two houses were sold by auction in a creditor’s suit. By the conditions of sale the purchaser was to get the report confirmed before the 8th of August, 1846, and pay his purchase-money into court before the 12th of November, 1846, and be let into possession as from the 29th of September, 1846. After the confirmation, but before he paid his purchase-money and obtained the conveyance and possession, part of the property fell down and had to be repaired. It was held that the loss fell upon the vendee. Fo point, of course, was involved in this case as to the matter of confirmation.

In Few Jersey the courts have always endeavored to give the greatest stability to judicial sales, and upheld them unless there was some strong, equitable or legal reason to the contrary.

“A purchaser at an official sale becomes invested with a fixed and definite legal right, which is recognized and enforced by the law, and of which he cannot be deprived except upon some legal or equitable ground.” Chamberlain v. Larned (Chief-Justice Beasley, Court of Errors and Appeals, 1880), 32 N. J. Eq. (5 Stew.) 295; see, also, cases cited in Palladino v. Hilpert, 72 N. J. Eq. (2 Buch.) (at p. 278 et seq.).

This right of the purchaser, in those cases in which confirmation is required, is fixed, though defeasible, and is subject to be defeated if the court refuses to confirm the sale, but, notwithstanding this, the right of the purchaser and the correlative rights of the judicial officer are established at the time of the sale and by the contract then made.

In my view there is no real distinction in this state in respect to the principles to be applied respecting the rights of the parties between judicial sales and other similar sales voluntarily made between parties.

The judicial sale is made by the officer in whom the law has lodged the power to make the sale. The fact that it is in invitum, and that the officer is only exercising a power and has not title, does not, in my view, in any way alter the rules to be applied when the contract has once been made.

Since there exists a parallel line of decisions which are contradictory and confusing upon this point, it will be necessary to consider them in order to reach a clear determination and conclusion.

In Den v. Steelman, 10 N. J. Law (5 Halst.) 193, Chief-Justice Ewing, in the supreme court, held that the substantial part of a judicial sale was the delivery of the deed by the sheriff to the purchaser, and that everything related to that; and he further held that under our law the exercise by the sheriff of the power of sale vested in him did not become effective until he delivered the deed, and that, therefore, there was no relation back to the date of the sale (when, the contract between the purchaser and the sheriff was entered into). He therefore held that the law which would obtain as between a voluntary vendor and vendee did not apply as between sheriff and purchaser. The decision in the case involved these facts: A sale under a judgment by a sheriff who made a contract with A as purchaser. Before the sheriff’s deed was delivered to A a judgment was recovered by.B against A. Hnder B’s judgment against A, A’s interest in the premises purchased by him at the sheriff’s sale aforesaid was attempted to be sold, and the contest was between the respective titles. The court held that whatever right A, the purchaser at the first sale, had, it was not such as was subject to execution under a writ of fieri facias issued on a common-law judgment.

Since there was no provision in any of the statutes which subjected an equitable estate to levy and sale under a common-law judgment, this decision seems to me to be unexceptionable, but the reasoning of the chief-justice concerning these other matters does not seem to me to have been necessary for the decision of the case.

His reasoning, however, was adopted in other cases. Bloom v. Welsh (Supreme Court, 1858), 27 N. J. Law (3 Dutch.) 177; Disborough v. Outcalt (Chancellor Vroom, 1831), 1 N. J. Eq. (Saxt.) 298; Ketchum v. Johnson’s Executors (Chancellor Haines, 1843), 4 N. J. Eq. (3 Gr. Ch.) 377; Pearman v. Gould (Chancellor Runyon, 1886), 42 N. J. Eq. (15 Stew.) 4, and particularly by Chancellor Magie in the case of Thompson v. Ramsey (1907), 72 N. J. Eq. (2 Buch.) 457, with which I shall deal hereafter.

Parallel with these eases, and not adverting to them, there were the decisions in Morse v. Hackensack Savings Bank (Court of Errors and Appeals, 1890), 47 N. J. Eq. (2 Dick.) 279; Wimpfheimer v. Prudential Insurance Co. (Vice-Chancellor Emery, 1898), 56 N. J. Eq. (11 Dick.) 585; First National Bank v. Thompson (Vice-Chancellor Stevens, 1900), 61 N. J. Eq. (16 Dick.) 188, and Carpenter v. Shanley (Vice-Chancellor Garrison, 1909), 73 Atl. Rep. 64, where exactly the opposite is held, namely, that the substantial thing in a judicial sale is the contract made at the time of the sale between the officer and the purchaser, and that the delivery of the deed is a mere ministerial act on the part of the judicial officer,' a mere formality, and that when it is delivered it relates back to the date of the sale.

The sheriff or other judicial officer is held to be the agent appointed by law for the person or persons whose rights are to be disposed of (Brady v. Carteret Realty Co. (Court of Errors and Appeals, 1904), 67 N. J. Eq. (1 Robb.) 641), and the statute prescribes that the deed of conveyance which he shall give

“shall transfer to or vest in the said purchaser as good and perfect an estate to the premises therein mentioned as the person, against whom the said writ or writs of execution were issued, was seized of or entitled to at or before the said judgment; and as fully, to all intents and purposes, as if such person had sold the said lands, tenements, hereditaments and real estate to such purchaser and had received the consideration money, and signed, sealed and delivered a deed for the same.”

By what seems to me to be a perfect analogy¿Jít must therefore be held that when this legal agent, ’ namely, the judicial officer, observing proper legal formalities, at a public sale strikes off the property to a purchaser, who thereupon signs the conditions of sale, thereby entering into a contract to purchase the premises named at the price named, the situation is exactly the same as if the contract were between private parties. The sheriff is vested by law with the power, on behalf of the persons against whom he holds the writ, to sell the property. This he does, and a written contract satisfying the statute of frauds is then made. I cannot perceive any reason why the same principles should not control the parties with respect to this contract as would control private parties voluntarily entering into a similar one.

Nor can I perceive why, when the deed which the judicial officer subsequently gives is delivered, it should not relate back to the time of the contract which undoubtedly, in my view, is the substantial thing in the transaction. The fact that the deed is not to be delivered at once, and that, in the meantime, under the law, the purchaser is not entitled to possession, and is not entitled to possession until lie secures his deed, does not affect the situation as equity views it.

Chancellor Magie, in the case of Thompson v. Ramsey, supra, reverted to and depended upon the doctrine of Den v. Steelman, supra, and refused to adopt the doctrine enunciated by'Mr. Justice Depue in Morse v. Hackensack Savings Bank, supra, because he held that the doctrine enunciated in the last-named case that the contract between the judicial officer and the purchaser was the substantial thing, and the delivery of the deed a mere formality which, when delivered, related back to the date of the contract, was not necessary to the decision of that case, and was therefore obiter. The chancellor thereupon refused to consider Morse v. Hackensack Savings Bank as a precedent, and discarded the reasoning therein in favor of the reasoning of Chief-Justice Ewing in Den v. Steelman.

I do not think it is clear by any means that the expression of opinion by Mr. Justice Depue in Morse v. Hackensack Savings Bank concerning this matter was obiter, and, in my view, it was necessary for him to decide the point in question to reach the decision which the court did upon the facts in that case. In that case Terhune was the executor of his father’s will and was also one of the devisees thereunder. Upon a judgment obtained against him his interest as heir was set up and sold by the sheriff on the 29th of August, 1888, to the bank. On the 22d day of September, 1888, Terhune, exercising the power of sale vested in him by the will, sold all of the lands of which his father was seized to Morse and immediatety gave him a deed which was immediately recorded. The sheriff’s deed was not delivered to the bank (the purchaser at the sheriff’s sale) until five days thereafter, namely, on the 27th of September, 1888. The contest was between the bank and Morse.

A perfectly familiar principle was involved in the suit, namely, that the title which descended to the heir was subject to be defeated by the exercise by the executor of the power of sale contained in the will. That power of sale, when executed, related back to the date of the death, when the will became operative, and cut out the right of the heir and those who claimed by, through or under the Heir.

Of course, if the executor had exercised the power of sale before the rights of the bank had attached—that is to say, before those who claimed under the heir had any rights—there would have been no occasion for any extended discussion, and no issue calling for the application of any principle excepting the perfectly familiar one above mentioned. But it is obvious, from the opinions in the court of chancery (46 N. J. Eq. (1 Dick.) 161) and in the court of errors and appeals, supra, thaj; other issues were in the suit and were determined.

The bank took the ground that, notwithstanding the familiar principle above alluded to, it was not operative in this case, because, having acquired their title through the heir before the exercise by the executor of the power of sale, they had the right to hold the title as against the purchaser at the executor’s sale on account of certain equities which they urged. In the court of chancery this claim was held to be good. In the court of errors and appeals it was first held that, under the law, the purchaser at the sheriff’s sale did convey a title prior in point of time to that of the purchaser at the executor’s sale, and therefore was in a position to urge the equities in his behalf which he had raised and which had been considered in the court of chancery.

The investigation of the court of errors and appeals into these issues resulted favorably to the defendant, and resulted in a reversal of the court of chancery.

But upon the point which we are considering, the court of errors and appeals affirmed the position taken in the court of chancery. Mr. Justice Depue upon this point held “The date of the delivery of the sheriff’s deed is a circumstance of no importance. A purchaser at a sheriff’s sale acquires by the act of purchase a right to a conveyance of the premises in pursuance of the sale.. The delivery by the officer of a deed is a mere ministerial act which the officer is required to perform to consummate the sale and vest in the purchaser a title in compliance with the law under which the sale was made.

“The sheriff’s deed, when delivered, has relation back to the time of the sale of which it is the consummation. * * * As a conveyance of the property the executor’s deed (which, it will be recalled, was made, dated, delivered and recorded September 22d) was, in legal effect, subsequent in point of time to the sheriff’s deed to the complainant (which, it will be recalled, was made, executed and delivered on the 27th day of the same September).”

The cases which have followed this decision and adopted its finding upon this point have been given, supra.

I incline to the opinion that this case is a precedent. I also incline to the opinion that, upon reason as well as upon authority, the doctrine therein enunciated is the correct one.

If I am correct upon this matter, the result is that the confusion both of decision and reasoning arising out of the contradictory nature of the respective cases' above mentioned is dissipated, and our rule is that the giving of the sheriff’s deed is a mere ministerial act and is not the substantial part of a judicial sale, and, when given, relates back to the sale and the contract there made, with' the result, likewise, that such contract is then to be treated, as previously stated, just as a similar contract voluntarily entered into between private parties concerning the same subject-matter would be treated.

That tins latter- is the case seems to me to be borne out by those authorities which hold that upon such a contract an action at law will lie by either party against the other for a breach (Townshend v. Simon (Supreme Court, 1876), 38 N. J. Law (9 Vr.) 239; Smith v. Cunningham (Vice-Chancellor Emery, 1905), 69 N. J. Eq. (3 Roll.) 622), or a bill in equity will lie by either party for the specific performance of the contract. Ely v. Perrine (Chancellor Pennington, 1841), 2 N. J. Eq. (1 Gr. Ch.) 396; Bowne v. Ritter (Chancellor Runyon, 1875), 26 N. J. Eq. (11 C. E. Gr.) 456.

The whole matter is so well expressed by Chief-Justice Depue in the case of Townshend v. Simon, supra, that a quotation will be useful. Commenting upon cases which hold a contrary doctrine to the one which he aj>proved, and with respect to one of them which held that the signing of conditions of sale was a mere submission to the authority of the court, and not a contract either with the sheriff or the plaintiff, he said, 38 N. J. Law (9 Vr.) (at p. 243) : “The argument by which this conelusion was reached was that the memorandum lacked the essential elements of a contract, not only in parties but also in mutuality and consideration. Inasmuch as the legal results of a purchase at a sheriff’s sale are an obligation on the part of the officer to convey, and on the part of the purchaser to accept a conveyance and pay the purchase-money, it is difficult to perceive wherein the undertaking is deficient in either mutuality or consideration. The duty of.the officer to make conveyance of the lands on his acceptance of the bid of the successful bidder, and his power to transfer to the purchaser the title he is selling, are as much a consideration as his ability to pass the property and chattels on the sale of personal property. The only difference is that property in chattels passes by the sale, whereas, on a sale of lands, a deed is necessary to convey the legal title. The rights of the buyer, in both instances, are fixed when the bid is accepted. Whatever else is necessary to complete the transaction is merely a compliance with the forms of passing title to land. Each party, it is admitted, may compel performance by the other by the intervention of the court out of which the process issued. A more decided illustration of consideration and mutuality of a contract can scarcely be found. The same elements of mutuality and consideration are present in a sale by an officer having power to sell and ability to make conveyance, as attend a sale by an owner at public auction.” And on page 244: “The notion that the contract is with the court is too fanciful to merit much consideration. It is regarded as such a contract as may be made the ground of a bill for specific performance in the name of the officer.”

And in those cases in which the court itself is requested by the purchaser to relieve him of his purchase, the matter is dealt with as if it were an action of specific performance, and the same principles are applied. McCarter v. Finch (Vice-Chancellor Pitney, 1897), 55 N. J. Eq. (10 Dick.) 248; Campbell v. Parker (Vice-Chancellor Pitney, 1900), 59 N. J. Eq. (14 Dick.) 342.

In my view, therefore, the correct' rule to be applied in our jurisdiction is that the purchaser at a judicial sale enters into a contract with the officer to which the same principles should be applied which, are applicable to a similar contract between private parties voluntarily entered into. And the fact that by the terms of the contract the purchaser is not entitled to possession until a future date does not in any way alter the legal or equitable rights of the parties.

The legal title does not vest in the purchaser until the delivery ' of the deed, but in the meantime it is held in trust for him. Since he has stipulated that he is not to receive possession until a future date, namely, the time when the deed is to be delivered to him, he is not entitled to the fruits of possession, which are the current avails of the land. • There are numerous cases, which I shall not stop to cite, which hold that until he is entitled to possession he is not entitled to such avails. But excepting with respect to the time when he is entitled to possession and the fruits of possession, the contract vests the beneficial ownership of the property in such purchaser, and any increase of valúe or' decrease therein inures to him.

In other jurisdictions the rule is, in some, as above stated, and in others, otherwise by reason of their statutes, and in some, it is otherwise by reason of the different view which the court in question takes of the situation arising out of a judicial sale.

Much care must, of course, be exercised in reading cases from” other jurisdictions, to observe the extent to which they are affected by statute. Many of the cases will be found gathered in the note to Robertson v. Van Cleave, 15 L. R. A. 68; see, also, Yeazel v. Einspahr, 24 L. R. A. 449, and Vance v. Foster, 9 Bush (Ky.) 389.

And in disposing of a case arising under the laws of Nebraska —the courts of which hold that the confirmation of the sale is necessary to its completion—the supreme court of the United States, in the case of Woodworth v. Northwestern Insurance Co., 185 U. S. 354; 46 L. Ed. 949, said: “The claim in the case at bar is for the rents and profits of the land, which accrued and were collected by the mortgagor after the entry of the order of confirmation of the sale. Upon general principles, independent of the decisions of the courts of Nebraska, we would be constrained to hold that, under the circumstances present in the ease at bar, * * * the purchaser acquired, as against the mortgagor, by relation, both the legal and equitable title to the-land purchased, at least as of the date of the order of confirmation of the sale.”

And in the brief of counsel in that case there will be found many cases to support the principle there enunciated that the-general equitable rule * * * carries the title back by relation to the date of the sale so. as to award to the purchaser the intermediate rents. And the case of Woodworth v. Northwestern Insurance Co., above cited, was followed in Brown v. Northwestern Insurance Co., 119 Fed. Rep. 149; see, also, Missouri Valley Land Co. v. Barwick, 50 Kan. 61; 31 Pac. 685.

~I am of opinion, therefore, as I have heretofore stated, that under our decisions and statutes the proper holding is that the judicial officer and the purchaser at a foreclosure sale (and probably this applied to all similar judicial sales) stand in a similar position to parties who have contracted in writing for the purchase and sale of real estate.

If this is so, the disposition of the precise point in the case at bar is not difficult.

The note to Bowen v. Lansing, 57 L. R. A. 643, gathers up the cases from many of the jurisdictions concerning the rights of vendors and vendees in land contracts, and the conclusion to that note (p. 65I) so well states what the cases hold that I shall quote it:

“Under the familiar doctrine that equity considers as done that which was agreed to be done, a contract for the sale of land operates as an equitable conversion. The vendee takes an equitable title, and his interest under the contract becomes realty; in case of his death before the conveyance is made the title descends to his heirs; he is entitled to all benefits attaching to the property, and must bear all losses, unless the contract shows a contrary intention on the part of the parties; he may execute a valid mortgage or deed of the property; and is entitled to the usual benefits attaching to the ownership of the property, subject, however, to the rights of the vendor, who holds the legal title as security for the payment of the purchase-money.
“Conversely, the vendor’s interest constitutes personalty, and on his death, is distributable as such. He holds the legal title as trustee for the purchaser and as security for the payment of the purchase-money. He canhot give a valid deed or mortgage of the property to one having-knowledge of the vendee’s equities, though he may transfer his interest under the contract. The decisions are conflicting- as to whether a judgmeat against liim constitutes a lien on the property; some hold that it ■does not constitute a lien, while others hold that it constitutes a lien on his interest in the property which may be sold under the judgment.
“The doctrine will not be applied where it is apparent from the contract that the parties intended that it should not operate as an equitable conversion.
“Neither will it be applied where the contract is one the specific performance of which cannot be enforced.
“The conversion takes place at the time of the execution of the contract, even though the purchaser does not take possession or pay the purchase price; though in some cases where the decisions were based on the language of the particular contracts, it was held that the equitable title did not pass until the performance of certain conditions.”

And in judicial sales it should be noted that we are not embarrassed by the decisions which hold that the equitable title will not be held to have passed in those cases where the vendor was not in a position to make a good title, because, in judicial sales, the judicial officer is always in a position to make such title as he is bound to give.

Since the precise point involved in the question before me is: Upon whom should fall the loss occasioned by a fire occurring after a contract of sale and before the delivery of the deed, I would particularly direct attention to that portion of the above note which appears on page 647 under the sub-title I. d., and see, also, the authorities cited in 29 Am. & Eng. Encycl. L. (2d ed.) 713.

That the conclusions reached by the author of this note are fully justified by the course of decision in oirr own state will be found by consulting the following authorities in addition to those cited in the note above referred to: Miller v. Miller (Chancellor Runyon, 1874), 25 N. J. Eq. (10 C. E. Gr.) 354; reversed, 27 N. J. Eq. (12 C. E. Gr.) 514, but not on this point; Keep v. Miller (Chancellor Runyon, 1886), 42 N. J. Eq. (15 Stew.) 100; Coles v. Feeney (Vice-Chancellor Pitney, 1894), 52 N. J. Eq. (7 Dick.) 493; Canfield v. Canfield (Vice-Chancellor Stevens, 1901), 62 N. J. Eq. (17 Dick.) 578; Marion v. Wolcott (Chancellor Magie, 1904), 68 N. J. Eq. (2 Robb.) 20.

In Grunauer v. Westchester Fire Insurance Co., 3 L. R. A. (N. S.) 107; 62 A. R. 418; 72 N. J. Law (43 Vr.) 289, it was held that “undoubtedly such contract creates the relation of trustee and cestui que trust between vendor and vendee. It produces in equity a complete transition of the vendor’s holdings from real to personal, and gives the vendee the equitable ownership. After such contract the vendor’s interest is no longer real estate, and the unpaid purchase-money is personalty, and 'goes to the vendor’s personal representative in ease of his death. * * *■ Although the vendor still retains the legal title to the land agreed to be sold and conveyed, he thereafter holds it only as a trustee for the vendee, who becomes the equitable and beneficial owner. * * * Under such a contract and surrender of possession the vendee becomes the beneficial owner, and loss or destruction of the property falls upon him and not upon the vendor, and many cases decided in other jurisdictions directly hold such contract (either with or without transfer of possession) to be a breach of the condition in question.” (Citing cases.)

The “condition in question” had reference to the condition in an insurance policy upon the premises issued to the vendor, which provided

“that if any change * * * takes place in the interest, title or possession of the subject of insurance * /* * the entire policy shall be void.”

It has been consistently held that by a completed contract of sale the vendee acquires an insurable interest in the premises, and this is so, irrespective, in my view, of whether or not he has taken possession. It is not the fact of possession which creates the beneficial equitable right in him; it is by force of the contract. Both the vendor and the vendee have insurable interests. See Grunauer v. Westchester Fire Insurance Co., supra; Marion v. Wolcott, supra; Rich. Ins. L. 295 § 237. See, also, the following cases and notes thereon: Williams v. Lilley, 37 L. R. A. 150; Phinizy v. Guernsey, 50 L. R. A. 680; Nanquin v. Texas, &c., Co., 58 L. R. A. 711; Rawson v. Bethesda Church, 6 L. R. A. (N. S.) 448; Zenor v. Hayes, 13 L. R..A. (N. S.) 909.

I am therefore of opinion, in the case in hand, that the loss occasioned by this fire falls upon the purchaser at the sheriff’s sale. The result is that the petition of such purchaser must be dismissed, with costs, and the sale be confirmed.


author: Gakkison, Y. C.

text:
    Sophia Howell, substituted administratrix, &c., v. Jeremiah Steelman et al.
    [Decided December 14th, 1909.]
    1. The court in construing a will must search for testator’s intention in the light of the facts, placing itself as nearly as possible in his position.
    2. Testator gave a nominal sum to each of his five children, gave the balance to his wife for life, or during widowhood, with a gift over, on her death or-remarriage, to his “surviving- heirs” equally, and provided that charges against his “heirs, their husbands or wives as contracted * * * by them with me,” should be deducted from their share. A daughter, whose husband was indebted to testator, died before testator, leaving children.—Held, that the words “surviving heirs” meant surviving children, and referred to such of the testator’s children as should be surviving at the date of their mother’s death or remarriage, and that the children of the deceased daughter did not take.
    Heard on bill, answer, replication and proofs in open court.
    This is a bill filed to procure the construction of the will of Andrew S-. Godfrey and for directions with respect thereto. The facts sufficiently appear in the opinion.

      Messrs. Melosh & Morten, for the complainant.

      Messrs. French & Richards, for Andrew G. Steelman et al., children of Jeremiah and Kate Steelman.

      Mr. Joseph L. Thomas, for Jcremiali Steelman.
   Gakkison, Y. C.

Andrew S. Godfrey, the testator, was a sea captain living at Tuckahoe, Atlantic county, New Jersey. On the 11th day of July, 1885, he made his will. At that time his wife was living, as were also five of their children, Theophilus W., Anna M. (Bailey), Hannah (Campbell), Sophia (Howell) and Kate (Steelman). Prior to this time, and as the result of transactions which need not be detailed, Jeremiah Steelman (the husband of Kate, who was one of the daughters of the testator) was indebted to the testator in about $2,000.

By his will the testator gave to each of his five children, by name, the sum of one dollar. He then gave to his wife all the balance of his estate during her natural life, or during the time she remained his widow. He then provided

“in the event of my wife’s death or should marry again, it is my will and I do order that whatever there may be of my worldly possessions, real, personal or mixed, shall be equally divided among my surviving heirs, after assigning to her her right of dower as my former widow.
"And it is my will and I do order that wherever there may be found any obligations, or charges be made and substantiated by documentary evidence or otherwise proven against my heirs their husbands or wives as contracted or executed by them with me, that the same be first deducted from their share of my estate, but no interest shall be charged on any such charges or debts against them.”

Kate Steelman died on the 22d day of October, 1888, leaving her husband, Jeremiah, and four children surviving her. The other four children of the testator all survived their father. Andrew S. Godfrey, the testator, died in January, 1899. Hannah C. Godfrey, the widow, died on the 30th day of April, 1907.

The question to be determined is, What did the testator mean when he provided that after the widow’s interest ceased the property should be divided equally among “my surviving heirs?” I think it perfectly plain that what he meant was “children,” and that the phrase, if written so as to express his exact meaning, would have read “my surviving children.”

Of course, no one is an heir to the living, and when the testator used the words “my surviving heirs’' he was speaking with reference to some persons who were to be surviving at the time that the life estate or intermediate estate of the widow fell in. It was this class, then surviving, that he desired to provide for.

"We .must search, therefore, his intention in the light of such facts as we have, placing ourselves, as nearly as we can, in his position, so as to get his point of view as nearly as possible. At the time that he drew his will, as heretofore stated, it is shown that the husband of Kate Steelman, one of his daughters, was indebted to him in a considerable sum of money. It was shown that he had at that time, including Kate, five children. Kate died before he did, but he did not change his will, which strongly evidences to my mind that in using the words “surviving heirs” he meant, as before stated, “surviving children.”

Erom the clause of the will above quoted, providing for the charging of obligations against the interests of his heirs, another strong indication of his meaning is obtained. Therein he provides that if there are any obligations against “my heirs their husbands or wives as contracted or executed by them with me,” the same are to be first deducted “from their share of my estate.” It is quite evident that he uses the word “heirs” here instead of “children,” and what he meant to say was that

“if any of my children, or the husbands or wives of any of my children, have borrowed any money from me, before such surviving child of mine shall receive his or her share, the debt due me from such child, or from the husband or wife of such child, shall first be deducted.”

This provision was evidently put in the will in view, partly if not wholfy, of the fact that Jeremiah Steelman, the husband of one of these children, Kate, was indebted to him in a considerable sum of money, and he did not propose that the share which Kate would get, if she lived to the period of distribution, should go to her in its entirety while her husband owed the testator this large sum of money.

As before stated, Kate died during the lifetime of her father, the testator, and unless the word “heirs” is held to mean “children” the result is that the children of Kate inherit, and there is no deduction from their share because the debt clue the testator was not contracted by the husband or wife of any of the “heirs.”

If the testator did not mean “children” when he said “heirs,” he certainly would have changed his will after Kate died, because it is inconceivable that he should first draw a will which, upon its face, bears evidence of the intention to safeguard the estate against debts contracted with him by his children, and then, when the situation was altered by the death of one of the children, leave the will unaltered so that in the administration of his estate exactly the opposite of his intention would result.

The courts have frequently held that the word “heirs” or “surviving heirs” meant “children.” Demarest v. Hopper (Court of Errors and Appeals, 1850), 22 N. J. Law (2 Zab.) 599 (at p. 611); Bruere v. Bruere (Vice-Chancellor Van Fleet, 1882), 35 N. J. Eq. (8 Stew.) 432 (at p. 434) ; Davis v. Davis (Chancellor Bunyon, 1884), 39 N. J. Eq. (12 Stew.) 13 (at p. 14) , Eldridge v. Eldridge (Chancellor Bunyon, 1886), 41 N. J. Eq. (14 Stew.) 89 (at p. 91); Miller v. Metcalf (Supreme Court, Connecticut, 1904), 58 Atl. Rep. 743; note to 2 L. R. A. 457.

The result is that the will should be construed as above stated, and the substituted administrator .should be directed to distribute the estate in accordance with such construction.