author: Walker, Y. C.

text:
    Georgia M. Allen v. Jacob C. Allen, executor of Elijah P. Allen, deceased.
    [Decided July 12th, 1909.]
    1. At the time of making his will the testator’s estate consisted of certain securities (bonds and mortgages) of which he thereafter died possessed. In the second item of his will he provided as follows: “I do give and bequeath unto my wife Georgia M. Allen, the sum of $17,000.00, to be paid to her out of the securities which I now hold, instead of cash.” —-Held, that the legacy is a specific one, and is to be paid out of the securities which came to the executor as part of the estate of the testator.

      2. A specific legacy carries with it the income thereof from the death of the testator.
    On motion to strike out bill.

      Mr. George M. Shipman, for the motion.

      Mr. William T-I. Morrow, contra.

   Walker, Y. C.

The bill alleges that the complainant is the widow of Elijah P. Allen, who died January 14th, 1908, leaving a will in which appears the following item:

“Second—I do give and bequeath unto my wife, Georgia M. Allen, the sum of seventeen thousand dollars to be paid to her out of the securities which I now hold, instead of cash.”

The third item is a bequest of $1,000 to the testator’s niece, to be paid in like manner as the bequest to the wife in the second item. Following this bequest the testator gave to certain nephews and nieces, and to another person, legacies of $100 each. The residue of his estate he gave to his brother, the defendant, whom he constituted his executor, and ordered and directed him not to make or file any inventory or appraisement of his estate, and he, testator, assumed the power to provide that he, the executor, should .not be required to file any account as executor in any court or place whatever. The will was executed November 30th, 1907, and was admitted to probate January 27th, 1908.

The bill further alleges that the testator left him surviving the complainant, his widow, but no child or children, his next of kin being the nephews and nieces mentioned in his will, and his brother the defendant; that at the time of his death the estate of the testator consisted of bonds secured by mortgages on real estate, all of which were at the time the testator made his will known to him to be good investments, and out of which he intended his executor, immediately after his death, to deliver to the complainant $17,000, principal sum, and that the executor could have, in that manner, discharged the bequest to the complainant and also the one to his niece, and that there would have been left in his hands more than $6,000, principal of mortgages, after paying all debts, legacies, expenses of administration, and every other obligation against the estate of the testator at the time of his death—the total amount of bonds and mortgages left by him, principal sum, at the time of his death exceeding the amount of $26,000; that the will was made during the last illness of the testator, who was about seventy-nine years old, who did not expect to recover, and at a time when he did not contemplate making any change in his investments but fully intended that they should continue in the same securities in which they were; that the complainant had an income from the estate of her former husband, who left her a widow with one daughter, which income amounted to about $100 a year, and that in making the bequest to the complainant, her husband, the testator, had in mind that her income was insufficient for her support after his death, and that it was his purpose to make provision for her necessaries, and that he designed that the interest on the sum of $17,000 should begin to accrue for her benefit immediately after his death; that all the other legacies and bequests made by the will, and all debts and funeral expenses, have been paid and that there remains in the hands of the executor securities belonging to the estate amounting in value, principal sum, to $24,000 and upwards; that the executor has received and holds to his own use all the interest accruing on the securities of the estate at the time of the death of the testator, and all that has accrued since his death, and claims that the complainant is not entitled to the securities to the amount of $17,000, as they were held by the testator at the time of his. death, but only to the sum of $17,000 in such securities at the end of one year from the death of the testator.

The prayer of the bill, as originally drawn, was that a decree might be made construing the will of the testator and directing that the complainant is entitled to receive the sum of $17,000 in the securities of the estate and in the hands of the executor which came to him after the death of the testator, together with the interest accruing thereon from and after his death, and with the interest on so much and such parts of the interest as the executor has received since the death of the testator, now in his hands, and for other and further relief.

A motion is now made to dismiss the bill for the following reasons: First, because the court has no jurisdiction to make the decree prayed for, there being no prayer for any direction to the defendant named as executor or as an individual, the suit being brought, as appears by the allegations of the bill, for the mere purpose of interpreting the provisions of the will, without any further relief, and by the prayer the only relief sought is the counsel and advice of the court in the construction of a portion of the will, there being no prayer for any positive direction to the executor, or to the defendant named in the will as an individual. Second, because the name of the defendant as executor of the deceased is omitted from the prayer to answer, the bill alleging that the defendant has failed in his duty as executor, and the bill seeks a construction of the whole or a portion of the will; and because the prayer for subpoena is that the writ be issued to the defendant commanding him personally, and as executor of the deceased, to appear, there being no prayer that the defendant answer the bill or answer the interrogatories. Third, because there is no equity in the bill, the true construction of the will being that the legacy is not a specific legacy, and that the complainant is not entitled to have and receive from the executor the bequest in specie as it existed at the time of the death of the testator, and to include interest on the same from that time, but that the legacy is general or demonstrative and that the widow is entitled to be paid the sum of $17,000 from the estate of deceased out of the securities that were in existence at the death of the testator, with interest after one year from his death. Fourth, because the bill lacks equity, there being no allegations which entitles the complainant to any relief against the defendant or as executor of the deceased.

Before the hearing the complainant, on motion, and by leave of the court, amended the prayer for relief by inserting a prayer that the defendant, as executor, may be decreed to deliver to her securities of the estate of the testator that came to his hands after testator’s death, to the amount, principal sum, of $17,000, together with interest thereon from his death, or, in case the executor has collected the principal and interest, that he pay the sum or such parts thereof as he may have collected, to the complainant in cash.

This motion to strike out the bill is made under rule 313 of this court, and is equivalent to a demurrer. Grey v. Greenville Railroad Co., 59 N. J. Eq. (14 Dick.) 372. Like a demurrer the motion admits the facts well pleaded in the bill. This being so, the admission is that the testator died possessed of securities, being bonds and mortgages, of the value of $17,000, which were .available to pay the legacy to the complainant in specie, which, being assigned to her, would have been interest drawing securities in her hands from the date of the testator’s death, but that instead of satisfying her legacy in that way the executor has refused to make such settlement and claims the complainant is only entitled to $17,000 from the estate of the testator in securities, to draw interest from one year after the death of the ■deceased.

In the face of this declination of -the' executor, the court has the power, certainly under the amended prayer, to decree that the executor carry out the intention of the testator and deliver to the complainant securities of the estate which came to his hands in the principal sum of $17,000 so that she may receive interest thereon from the date of the testator’s death, or, if the executor has received such interest, or any part of it, that he turn that •over in addition. In this posture of the case I fail to see that the bill is one merely for a construction of the decedent’s will without any direction to the executor to perform a duty. On the contrary, it seems to me, plainly, that the ease is one for the direction to perform a duty following and arising out of a •construction of the will, if that construction be favorable to the •complainant. Besides, under our liberal practice of amendments, in a suit in equity, after issue joined and after witnesses have been examined, the complainant is permitted to amend by adding proper parties, where there is a defect of parties. Seymour v. Long Dock Co., 17 N. J. Eq. (2 C. E. Gr.) 169. Even on final hearing the complainant will be allowed to amend if thereby no right of defence is abridged. Ogden v. Thornton, 30 N. J. Eq. (3 Stew.) 569.

If the complainant had not amended her bill she would be permitted to do so now, to the end that the substance of the motion could be considered and the cause disposed of on its merits. If there remains any technical defect in the prayers amendment will be allowed.

This brings me to the consideration of the real question at issue, which is, is the legacy of the complainant a specific or demonstrative one?

As to whether a legacy is specific or demonstrative Vice-Chancellor Emery, in Blair v. Scribner, 65 N. J. Eq. (20 Dick.)498, quotes from the decision of Chancellor Kent (at p. 518), as follows:

“The reasoning on this subject is, that if the legacy is meant to consist of the security, it is specific, though the testator begins by giving the sum due upon it. A legacy of a debt, unless there is ground for considering it a legacy of money and that the security is referred to as the best mode of paying it, is as much specific as the legacy of a horse or any movable chattel whatever. If the specific thing is disposed of or extinguished the legacy is gone. * * * It is essentially a question of intention when we are inquiring into the character of a legacy upon the distinction taken in the civil law between a demonstrative legacy, where the testator gives a general legacy but points out the fund to satisfy it, and where he bequeaths a specific debt.”

The learned vice-chancellor continues that courts incline to consider legacies opening with the bequests of sums of money to be general or demonstrative rather than specific, and that a clear intention must appear in order to make a legacy specific, citing authorities.

This case (Blair v. Scribner) was reversed in the court of errors and appeals, because that court held that the true construction of the will there under consideration led to a different conclusion than that reached in this court, but did not in anywise depart from the law concerning specific or demonstrative legacies laid down by the vice-chancellor. In fact, in direct affirmance of what he said, the court of last resort remarked that it is a primary rule in the construction of wills that a clear intention on the part of the testator must appear in order to make a legacy specific. Blair v. Scribner, 67 N. J. Eq. (1 Robb.) 583, 588.

To my mind, the intention of the testator in the case now under consideration to make the legacy to his wife specific and not demonstrative is so clear upon its face that resort does not have to be had to the other parts of the will or the situation of the parties as an aid in interpretation.

My reason for saying that the testator’s intention to make the legacy in question a specific one clearly appears, is, that his direction that the legacy shall be paid out of securities "instead of cash” puts the matter in such posture that the payment must be made in the securities mentioned in order to effectuate and carry out his intention. These words "instead of cash” are, in my judgment, absolutely controlling, and are evincive of the clearest intention that the legacy was payable in the very securities which he held at the time of making the will to the end that his widow should have the income yielded by them from the time of his death.

As is well known, a specific legacy carries with it the income thereof from the death of the testator. Theob. Wills 180; Blundell v. Pope, 21 Atl. Rep. 456.

The motion to strike out the bill must be overruled, with costs.


source: Caselaw Access Project

author: Walker, Y. 0.

license: Public Domain

text:
    Copper King of Arizona v. Daniel Robert.
    [Decided July 13th, 1909.]
    1. It is the practice of the court of chancery, arising out of its general jurisdiction for the purpose of discovery, to allow a party to apply before the hearing of a suit, for the inspection of documents, relevant to the matters in question, which are in the possession or power of the opposite party; and this discovery is allowed to a defendant, when necessary to enable him to complete his defence; but it is not unlimited, and will be extended only to such documents as appear to be necessary for the purpose of enabling the suitor to plead properly.
    2. The circumstance of the documents being abroad is no answer to an application for their production; but, in such a case reasonable time will be given the party to bring them into the state, and refusal to comply with the order will be considered the same as if the documents were here and the party refused to produce them.
    On petition to compel the production of the books of the complainant corporation for inspection by defendant.

      Messrs. Fungan & Reger, for the petitioner.

      Mr. Pierre F. Qoolc, contra.

   Walker, Y. 0.

The late Daniel Robert filed a demurrer in this cause which was overruled. He died pending decision on the demurrer, and Angeline Robert, his executrix, was made a party defendant in his stead. She claims that she has no knowledge of the facts alleged in the amended hill and is unable to formulate a proper pleading without an examination and inspection of the books of the complainant, a corporation organized under the laws of the Territory of Arizona and which has no office in this state. She avers that on June 10th, 1909, her solicitor called upon the solicitor of the complainant at his office in Jersey City and requested from him permission to examine and inspect the books of the complainant then in his possession (not stating what books, if any, were in his possession), and that such permission was refused. She says she believes that the suit was never authorized' by the corporation, but that it has be.en brought in its name by individuals who had no authority, and that in 1904 all the property and assets of the complainant were sold and that thereupon it ceased to transact business. The prayer of the petition is that this court compel the complainant to bring into this state all the minute books, stock books, transfer books, books of account, including cash books, day books, journals, ledgers and all other books, receipts, documents and vouchers showing the business transactions of the complainant from its incorporation to the present time, and to permit the attorney and solicitor of the petitioner to make an examination thereof under such restrictions as the court may impose.

Section 44 of the Corporation act is invoked as authority for the order prayed for. An examination of that section will show that it' gives this court authority only to summarily order brought into this state the books of corporations organized under our laws. This being so, the section is not available on the present application.

But, the petitioner further urges that, irrespective of ,the statute, this court has the inherent power to direct the complainant to give her an inspection of its books, and cites Lawless v. Fleming, 56 N. J. Eq. (11 Dick.) 138, 815, as authority. The case bears out the petitioner’s contention. Said the court of errors and appeals in that case (at p. 816) :

“The right of the court of chancery to make such an order cannot be questioned, and has long been settled both by established custom and well-known authority. It is one of the inherent powers of a court of equity.”

In Dan. Ch. Pl. & Pr. (6th Am. ed.) it is stated that it is the practice of the court of chancery to allow a party to apply before the hearing of a suit, for the production of documents relevant to the matters in question, which are in the possession or power of the opposite party; that this power to order the production of documents arises out of the general jurisdiction for the purpose of discovery, which, in all proceedings in equity, constitutes an important feature, and, in some instances, forms, as it were, the very foundation for the interference of the court; that the mere circumstance of the documents being abroad is no answer to an application for their production, but in such a ease, reasonable time is given the party to bring them into the country, and refusal to comply with the order is considered the same as if the documents were here and the party refused to produce them; that where discovery from the complainant, either concerning matters of fact or the contents of documents was necessary to a defendant for the purpose of enabling him to complete his defence, such discovery was formerly had by means of a cross-bill, but under the present practice the court may make an order for the production bjr the complainant of such documents in his possession or power relating to the matters in question in the suit as the court shall think right, but this discovery is not unlimited and will be extended only to such documents as appear to be necessary for the purpose of enabling the suitor to plead properly. Dan. Ch. Pl. & Pr. (6th Am. ed.), *1817 el seq.

In the light of the rule above mentioned, I do not see liow the petitioner is entitled to an inspection of all the books, receipts, documents and vouchers showing the business transactions of the, complainant from its incorporation to the present time as prayed for.

Let us see now what are the allegations of- the bill, and what its prayer, so that we may ascertain what documents of the complainant the defendant needs to inspect.

The bill avers that Daniel Robert, • the defendant’s testator, was treasurer of the complainant corporation, and that he, together with its president, controlled the financial policy of the company; 'that immediately after its organization the complainant became financially straitened and sorely in need of funds to carry on its business, and thereupon the defendant’s decedent, in conjunction with the president and his brother, entered into a financial policy that would accrue to their own private benefit and the injury of the complainant, by causing it to execute a mortgage to Richard D. Boitel (brother of the president), trustee, for $10,000, the actual consideration therefor being $4,000 loaned, which was subsequently repaid with a bonus of $4,000, and by causing the corporation to execute another mortgage to the same mortgagee, trustee, covering the same land for $10,000, the actual consideration therefor being $4,500, and that the defendant’s testator participated in the bonuses with the other parties, and that he became and (his estate) now is liable to the complainant for all loss occasioned thereby; that the complainant is entitled to an account of the moneys received by the defendant as mentioned, or by any other of the directors of the complainant corporation or any other person with his knowledge or concurrence. The prayer is that the defendant may be decreed to account for such money as was paid to or received by him (in his lifetime), or paid to or received by any other agent or director of the complainant company or any other person with his consent, out of the assets of the complainant by way of bonus over and above any sum or sums actually advanced to it under the mortgages or either of them.

The minute book will show whether or not the suit was authorized to be brought by action of the board of directors, and the defendant is entitled to an inspection of that book. The defendant is also entitled to an inspection of such entries in any other books of the corporation as show the mortgage transactions to which reference has been made. Also, she is entitled to an inspection of such receipts, documents and vouchers as bear upon the particular transactions.

An order will be advised that the complainant produce at the office of its solicitor in Jersey City, for the inspection of the defendant, its minute book, and such other books as contain entries which show the mortgage transactions, and such receipts, documents and vouchers as bear upon those transactions. Inspection must be restricted to an examination of such data in the books and documents to be produced as relate to the particular transactions which are made the subject-matter of the bill of complaint. The defendant will have twenty days in which to plead or answer the bill after production and inspection by her or her solicitor, and in the meantime all proceedings in the cause shall be stayed. By demanding the production of more documents than she is entitled to inspect the defendant has dis-entitled herself to the costs of this motion. The order will be made without costs to either party as against the other.


author: Walkeb, Y. C.

text:
    John McMillan et al. v. Louis Kuehnle and Edward Bader.
    [Decided September 14th, 1909.]
    1. The playing of baseball on Sundays will be enjoined if it be made' to appear that the noise and disorderly conduct attendant upon the games being held forth amounts to a nuisance in the neighborhood, whereby the-peace and quiet of the Sabbath is disturbed and the rest which the complainants are entitled to enjoy on that day is appreciably affected; each case must stand or fall on the question of nuisance or no nuisance, as-the court of chancery has no jurisdiction to enforce, by injunction, the-Sunday laws, so called.
    2. Noises which are not nuisances on a week-day may be nuisances-when made on a Sunday, if they have the effect of disturbing that quiet and rest which the citizen is entitled to have for his recuperation; and the fact that such noises are forbidden by the laws of the land (the-Sunday laws) takes away any defence for the making of them on Sunday even though they be but slight.
    3. A preliminary injunction will issue to restrain Sunday baseball' playing upon the affidavits of six or seven persons residing in the neighborhood where the games are held forth, which show a case of nuisance, even though more than forty persons similarly situated swear that the noises are quite inappreciable and not at all disturbing, if there be no proof before the court that the complainants are morbidly sensitive; the case not being one turning upon the preponderance of evidence as to the extent and character of the noise so much as it does but upon the question whether the affidavits on behalf of the defendants show the affiants on behalf of the complainants to be untruthful as to the existence of the noise, and as it is notorious that many people are not disturbed by noises-which affect some people similarly situated, in the absence of proof that the complainants and their witnesses are morbidly sensitive, it will be-presumed that they are persons of ordinary sensibility and are truthful concerning the existence of the nuisance as to themselves.
    On. application for preliminary injunction. Heard on bill and affidavits, and affidavits on the part'of the defendants.

      Mr. Charles E. Sheppard and Mr. Edwin (?. 0. Bleakly, for the complainants.

      Mr. George A. Bourgeois, for the defendants. “
   Walkeb, Y. C.

The bill is filed by John McMillan and John H. Goldsmith, on behalf of themselves and other residents of Atlantic City, among them being those whose affidavits are annexed to the bill. Those making affidavits besides the two complainants are: Mrs. Ellen Goldsmith, wife of one of the complainants; Robert Ingram, and Harriet A. Ingram, his wife; Mrs. Erances Young and Mrs. Mary Reynolds.

The object sought by the bill is to restrain- the defendants from holding forth baseball games at Inlet Park, Atlantic City, on Sundays, because of an alleged nuisance attendant thereon by way of noise and disorderly conduct which disturbs the peace and quiet of the Sabbath, and interferes with the rest to which the complainants are of right entitled to enjoy on that day.

The case stands or falls on the question of nuisance or no nuisance, as the court of chancery has no power to enforce, by injunction, the Sunday laws, so called. That jurisdiction belongs to another tribunal.

The complainant Mr. McMillan, who is a clergyman, swears that baseball games had been carried on at Inlet Baseball Park, Atlantic City, for some five or six Sundays before the making of his affidavit, which was on August 25th ult. (1909); that his residence'is about two squares from the park, and that large crowds attend the games, and that in going to and returning therefrom make loud noises and sounds which are an annoyance to himself and the neighborhood, and a disturbance of the peace and quiet of the neighborhood, but he says nothing about sounds emanating from the grounds; he also says that quite a large number of the boys in his Sunday-school absent themselves, and attend the games on Sabbath afternoons. With this last feature of his complaint the court has nothing to do.

The complainant Goldsmith swears that he lives about a block and a half, or six hundred feet, from the park, and that on Sunday afternoons crowds of people in carriages, in automobiles and on foot, pass by, to and from the games, making loud noises, and that during the progress of the games there is frequently heard very load cheering and shouting, yelling and screaming and stamping of feet on the stands, all of which is very plainly heard at his residence and is greatly annoying and interferes with the comfort of his house for himself and his family, and destroys the peace and quiet of tire neighborhood during the time.

Mrs. Ellen Goldsmith swears that she has been greatly annoyed in her house and her peace and comfort greatly disturbed by the noise and confusion made by those going to and returning from the ball games at the park on Sundays, and by the cheering and screaming, yelling and hooting, and stamping of feet on the boards by those.within the park attending the games.

Robert Ingram swears that he resides about one and a half squares, or two hundred yards, from the park, where baseball is played on Sundays, and that a large number of teams, automobiles -and carriages, loaded with men and women, who, with many others on foot, going to and returning from the games, pass along the street in front of his residence, cheering, hooting and shouting, and that during the progress of the games the cheering, shouting and screeching of the crowds attending are plainly heard at his residence and greatly annoy himself and his family.

Mrs. Harriet A. Ingram, wife of Robert Ingram, swears that since the baseball games have been carried on at the park on Sundays, noise and confusion, screaming, cheering and hallooing of the crowds of people in the park while the games were on, and the stamping of feet on the stands by the spectators were plainly heard at their house and disturbed the peace and quietness of Sunday for them ; that the crowds of people on foot and in carriages and automobiles, passing along in front and near to their residences, going to and returning from the games on Sundays, also greatly disturbed the comfort of their house and its peace and quiet.

Mrs. .Frances Young swears that she lives with her husband and family of 'children about one and a half squares from the park; that the cheering, hallooing and shouting of persons attending the ball games on Sundays can be plainly heard at their residence and is very annoying and disturbs the peace and quiet of their home; that the crowds, going to the games and returning from them, pass by their home in large numbers, many of them shouting and using profane and vile language, which can be plainly heard from 'their house, and is a great annoyance and nuisance to them.

Mrs. Mary Reynolds swears that she resides about two blocks or squares from the park where the games of baseball are carried on on Sundays, and that teams, automobiles and foot people go by her house, to and from the games, and make a loud noise, disturbing herself and the neighborhood.

The proofs on the part of the defendants, who admittedly control and operate the Inlet Baseball Park, show that lands near or adjoining the park are used as a terminal of the trolley line (which extends from Longport to'the inlet), where its terminal building and waiting-room and also a hotel and restaurant, around which is a two-story pavilion, and another hotel, are situate; also, nearby, is a pier from which approximately one hundred sailing yachts, of various sizes, make daily or hourly excursions or trips down Absecon inlet and out upon the Atlantic ocean, which yachts daily carry great numbers of people, extending into the thousands, on sailing trips, great numbers of people taking those trips on Sunday afternoons; that great numbers of people visit the hotels, or one of them, especially on Sundays, and enjoy the refreshments that may be purchased; that there are automobile lines running from various parts of the city to the inlet, and that large numbers of busses carry people to and fro, and that the majority of the people who go to the inlet from the boardwalk along the Atlantic ocean reach it by automobiles and busses, the trolley line not touching the boardwalk except at two points.

The affidavits of over forty people living near to the park were produced, many of them living much nearer than those whose affidavits are annexed to the complainants’ bill, who swore that none or very little noise or applause was heard coming from the baseball park, while games were held forth there, and that what was heard was no annoyance whatever to people living in its vicinity, nor was the conduct on the part of the crowds going to or returning from the inlet on Sundays of the character mentioned by the complainants’ witnesses; in fact, that it was not annoying.

If the issue were as to a certain well-defined physical fact presumably within the knowledge of all of the affiants—such as, did a certain sound occur at midday or midnight—the defendants would prevail upon the clear weight and preponderance of the evidence; but, the issue is as to facts not so clearly defined, but is as to facts which different people see and hear differently, according to their different natures.

The criterion for determining whether or not a particular use of property is a nuisance, is its effect upon persons of ordinary health and sensibility, and ordinary modes of living, and not upon those who, on the one hand, are morbid or fastidious, or peculiarly susceptible to the thing complained of, or, on the other hand, are unusually insensible thereto. 21 Am. & Eng. Encycl. L. (2d ed.) 689.

There is no evidence before the court on this hearing to the effect that the complainants and affiants are morbidly sensitive as to the sounds that form the gravamen of the complaint, except that it may be inferred that such is the fact because of the overwhelming proof of those residing in the same neighborhood that the noises spoken of by the complainants are quite inappreciable and not at all disturbing. This feature of the case may perhaps be gone into on final hearing. The question, as I understand it, does not turn upon the preponderance of the evidence as to the extent and character of the noises so much as it does upon the question whether the affidavits on behalf of the defendants show the affiants on behalf of the complainants to be untruthful as to the existence of the noises. Because innumerable witnesses living in the vicinity of the ball grounds say that they are not annoyed, either by persons passing their houses to and from the park or by the demonstrations of those in the park and upon the stands, that does not necessarily show that others, comparatively few though they be, may not be annoyed and suffer great inconvenience, amounting to a nuisance, from the facts to which I have just adverted. It is notorious that many people living near railroads and factories become so accustomed to the noises emanating therefrom as not to notice them, while, on the contrary, some people, similarly situated, can never be oblivious to them.

The law governing the matter under consideration is to he found in the three cases in this court of Cronin v. Bloemecke, 58 N. J. Eq. (13 Dick.) 313, decided by Vice-Chancellor Emery in 1899; Gilbough v. West Side Amusement Co., 64 N. J. Eq. (19 Dick.) 27, decided by Vice-Chancellor Pitney in 1902, and Seastream v. New Jersey Exhibition Co., 67 N. J. Eq. (1 Robb.) 178, decided by Vice-Chancellor Pitney in 1904.

The decision in the Seastream Case went upon the ground that some five or six of the complainants who resided in the neighborhood of the park were disturbed by the noise of the shouts and applause from the grounds on Sundays when ball games were plaj^ed, and that several others of the complainants suffered from the noise and unruly conduct of the great crowds alighting from and boarding trolley cars in front of their residences and in going to and from the park and the trolley. 67 N. J. Eq. (1 Robb.) 181. In the case before me seven affiants swear to a state of facts tending to show that a nuisance is created by the holding forth of the ball games at the Inlet Park, Atlantic City, on Sundays, two of them, the Eev. Mr. McMillan and Mrs. Eeynolds, speaking only to the question of noise and unruly conduct by the crowds going to and returning from the games, while the other five testify to a nuisance created upon and about the park at the playing of the games.

The question whether those suffering from one or the other of two kinds of annoyance, namely, that on the highways leading to and from the baseball grounds, and that emanating from the grounds while games are in progress, may join in the same bill of complaint, was raised in the Seastream Case, but was left undecided, as no demurrer was filed and the defendant had not been embarrassed in presenting its defence. 67 N. J. Eq. (1 Robb.) 187. The question of misjoinder was not even raised upon the argument of this cause, and will, therefore, not be considered.

A parallel to be found in the Seastream Case is, that the defence was there made that the ball ground was not the only place to which people resorted who went by the premises of the complainants and annoyed them. It was shown that Newark bay was only a slight distance from the ball grounds and that people were attracted to its shores for amusements on Sundays, consisting of boating, crabbing, fishing and picknicking, and that independent of the baseball playing a large crowd on Sundays habitually resorted to the neighborhood by means of the trolley, alighting at the very same part of the avenue and creating precisely the same nuisance as was complained of on account of the baseball crowds. 67 N. J. Eq. (1 Robb.) 185. Vice-Chancellor Pitney did not think that that state of affairs estopped the complainants from asserting their rights against the defendants.

The case of Gilbough was also a Sunday baseball case. The fact of the nuisance was disputed. In that case (Gilbough) affidavits produced by the defendant made by persons who lived near the grounds were to the effect that the noise, although heard by them, did not annoy them. 64 N. J. Eq. (19 Dick.) 35. In the case now being considered some of the numerous witnesses for the defendants said that they heard noises, but that they were slight and not disturbing, and others of them said they heard no noises at all. In the Gilbough Gase Vice-Chancellor Pitney said that the noises, if loud enough to appreciably disturb complainants’ rest, constituted a nuisance against which they were entitled to relief in this court. 64 N. J. Eq. (19 Dick.) 30.

In the Gronin Gase, which was a case of disorderly baseball games played on weekdays and on Sundays, Vice-Chancellor Emery says that the protection of one’s dwelling-house against nuisances which render it uncomfortable is a right which has been constantly protected in this court by preliminary injunction, even when the existence of the nuisance is disputed. 58 N. J. Eq. (13 Dick.) 317.

In the unreported case of Rausch v. Glazer (May term, 1908), which was a nuisance case heard before me, and in which the question was as to stenches emanating from a rendering establishment, I 'took occasion to observe that the nuisance being established by satisfactory testimony, the evidence was not overcome by testimony of a negative kind; that testimony of some of the neighbors that they were not annoyed did not disprove that the complainant and his family were annoyed.

Another phase of the case under consideration was dealt with by Vice-Chancellor Pitney in the Gilbough Gase. He said that noises ■which would not be declared to be nuisances on a weekday are held to be nuisances if made on a Sunday, because they have the effect of disturbing that quiet and rest which the citizen, wearied with six days of labor, is entitled to have for his recuperation, and that the fact that such noise is forbidden by the laws of the land (the Sunday laws) takes away from the producer any excuse therefor (64 N. J. Eq. (19 Dick.) 29, 30), that is, as I understand it, takes away his defence so far as that defence may be any justification for the making of disturbing noises at the given time, even though they be but slight.

In the earlier cases of Cronin and Gilbough the court dealt with the character of the injunction that should go for the relief of the complainants. In the Cronin Case the restraint went against the use of the park for the purpose of baseball games so that a nuisance might be occasioned to the annoyance and injury of the complainant and his family at his residence, the games not being prohibited entirely (58 N. J. Eq. (13 Dick.) 316, 317), and in the Gilbough Case the injunction went restraining the defendant from permitting any noise or noises to be made upon its premises on Sunday which should disturb the complainants or their families, there being no prohibition of the games themselves (64 N. J. Eq. (19 Dick.) 36), but, in the Seastream Case, the law having previously been so well settled, the injunction went restraining the playing of baseball on Sundays altogether. 67 N. J. Eq. (1 Robb.) 187.

Now, applying the law, as I understand it, to the facts of this ease, as I understand them, I am constrained, following the last and culminating decision, to advise the issuance of an injunction against the playing of baseball games on Sundays at the Inlet Park, Atlantic City, until the final hearing of this cause, and until the further order of the court to the contrary.

It may not be amiss to state again that an injunction does not issue in a cause like this upon any theory of enforcing observance of the Sunday laws. It goes only to protect the citizen against a nuisance which appreciably affects him. If the question before me had not already been passed upon by this court I should feel inclined to do no more than advise an injunction restraining the defendants from holding forth baseball games in such 'way or maimer as to disturb and annoy the complainants at their residence, but, as already remarked, I feel bound to follow the Sea-stream Case, which appears to be a good deal like this one, and to grant an injunction restraining the games altogether. If this decision be erroneous there is a court above me to which the defendants may resort for correction of the error.

The order to show cause will be made absolute, with costs to abide the event of the suit.


author: 'Walker, V. C.

text:
    The Mayor and Common Council of the City of Salem v. Board of Health of the State of New Jersey.
    [Decided October 4th, 1909.]
    1. When jurisdiction is conferred by statute upon this court without provision made for the kind of pleading by which the power of the court is to be invoked, a bill of complaint is the proper method of procedure.
    2. A person or corporation aggrieved by a finding of the state board of health concerning water pollution under section 1 of the supplement to the State Sewerage Commission act of May 7th, 1907 (P. L. 1907 p. 860), may “appeal” to this court by bill of complaint according to the established practice of the court.
    3. If a defendant submits to answer he must answer fully, and an answer that the defendant denies all of the matters set forth in a certain paragraph of the complainant’s bill is insufficient. Bach material allegation of fact charged must be answered not only as to the defendant’s knowledge of each fact, but, if he has no knowledge, then as to his information and belief regarding it, if he has any.
    4. An application to withdraw an answer represented to have been improperly and inadvertently filed, will be denied unless it be shown that the answer was filed through mistake or under a misapprehension of the defendant’s rights.
    On exceptions to answer, and on motion to withdraw answer and dismiss bill.

      Mr. 'Henry Burl Ware and Mr. Thomas G. Hilliard, for the complainant.

      Mr. Nelson B. Gas'kill, assistant attorney-general, for the defendant.
   'Walker, V. C.

After the coming in of an answer to the hill of complaint in this cause exceptions to the answer were filed; whereupon the defendant gave notice of an application to withdraw the answer and dismiss the bill. An examination of the pleadings therefore becomes necessary.

The answer admits the allegations in the bill to and including those in its fifth paragraph. The sixth paragraph of the bill avers that the waters of Salem and Eenwick creeks and the Delaware river from the city of Camden and south thereof for a distance of over forty miles up the river from the mouth of Salem creek are of a saline character’and are not potable waters; that the city of Salem is so situate that there are no habitations upon Salem and Eenwick creeks and the Delaware river near the city of Salem, and that an excess of twenty miles of Delaware bay lies between the mouth of Salem creek and the nearest oyster beds dredged for obtaining oysters. The third paragraph of the answer avers that the defendant denies any and all of the matters set forth in the sixth paragraph of the bill.

The first exception is that the defendant has not, according to the best of its knowledge, remembrance, information and belief, set forth in the fifth paragraph of its answer a separate and detailed answer to the allegations contained in the sixth paragraph of the bill, but that the answer is evasive and not directly responsive, and does not separately and specifically deny, but merely makes a conjunctive denial of the averments concerning the saline character of the waters of the creeks and the distance on the bajr, &c.

The second exception is that the defendant has not in any manner answered and set forth in the sixth paragraph of the answer whether or not the city of Chester, Pennsylvania, and the cities of Wilmington, blew Castle and Delaware City, Delaware, and many other cities and towns as well as the borough of Pennsgrove, in this state, now discharge their entire sewage into the Delaware river at points nearer to the source and head thereof than the mouth of Salem creek, and that the amount of sewage discharged in the Delaware river by the cities and towns in the States of Pennsylvania and Delaware is many times in excess of the small amount of sewage discharged into Salem creek by the complainant.

The third exception is that the defendant lias not answered, set forth and discovered the evidence and proofs on which its action or resolution adopted January 19th, 1909, relative to the disposition of the sewage of Salem, was based or taken. In this connection it should be remarked that there is no prayer for discovery in the bill of complaint.

The fourth exception is that the defendant has not answered and set forth any proofs, evidence or reason showing that the discharge of its sewage by complainant into the Salem creek is a pollution of the waters of this state* in such manner as to cause or threaten injury to any of the inhabitants of this state either in health, comfort or property.

The fifth exception is that the defendant has not answered and set forth whether or not the proposed or other disposition by the complainant as directed by the notice served on it by the defendant, of its sewage and other polluting matter, will entirely destroy any benefit to the complainant of its present sewerage system, and that the injury to the complainant thereby would be irreparable, and would remove from the complainant all the value of its present sewerage system.

The sixth exception is that because the complainant appeals from the order or resolution of the defendant to this court, according to the statute in such case made and provided, the defendant has not answered and shown and set forth all actions and proceedings had and taken by it together with its proofs and other evidence under and on which it caused the notice to be served on tire complainant as set forth in said bill.

It should be remarked that the complainant alleges that the statute under which the defendant has acted in this matter does not accord with the provisions of the constitution and conflicts therewith, and is therefore void and of no effect, being in violation of the fourth and eleventh clauses, or paragraphs of section 7, article 4-, of the constitution.

The defendant presses an application to withdraw the answer and dismiss the bill—first, because the method of review of the order of the board of health of the State of New Jersey is by appeal to this court, pursuant to the provisions of section 1, chapter 135, of the laws of 1907, and not by bill of complaint; second, because if the act of the- legislature approved May 7th, 1907,. the title of which is recited in the complainant’s bill, is not in accordance with the provisions of the constitution of this state, but in conflict therewith, then the remedy of the complainant is not in equity, but by certiorari, as the board of health, if the act be unconstitutional, would not have jurisdiction to make the order of which complaint is made; third, because if the Sewerage act of 1900, and the acts amendatory thereof and supplementary thereto, are special legislation and in violation of the fourth and eleventh paragraphs of section 7, article 4, of the constitution, then the remedy of the complainant is not in equity but by certiorari, for the reason last mentioned; fourth, because the answer of the defendant was improperly and inadvertently filed and should be withdrawn until disposition is made of the matters set forth in the first, second and third reasons above stated.

The action of the state board of health, which has precipitated the controversy in this suit, arises out of the service of a notice of which the following is a copy:

“Boabd of Health of the State of New Jebsey.
“Pursuant to Chapter 72 of the laws of 1900, and the supplements and amendments thereto, notice is hereby given by the Board of Health of the State of New Jersey to His Honor the Mayor of Salem, for the City of Salem, New Jersey, that prior to the first day of September, nineteen hundred and thirteen, the City of Salem must cease to pollute the waters of the Delaware river and its tributaries and make such other disposition of its sewage or other polluting matter as shall be approved by the Board of Health of the State of New Jersey.
“B. S. By order of the Board of Health of the State of New Jersey in pursuance of a resolution adopted the nineteenth day of January, 1909.
“John H. Capstick,
“Bbuce S. Keatob, President
“Beeretm-y.”

This notice was given under the authority of section 1 of the supplement of May 7th, 1907 (P. L. 1907 p. 860), to the State Sewerage Commission act. It provides that the state sewerage commission is authorized and empowered to inspect any of the waters of this state, and if it finds that any of them are being polluted in such manner as to cause or threaten injury to any of the inhabitants of the state, either in health, comfort or property, it shall be its duty to notify, in writing, any person, municipality or private corporation found to be polluting said waters, that prior to a time to be fixed by the commission, said person or corporation must cease to pollute said waters and make such other disposition of the sewage or other polluting matter as shall be approved by said commission. The section then proceeds to provide that any person or corporation aggrieved by any such finding may appeal therefrom to the court of chancery at any time within three months after being notified thereof, the court being empowered to hear and determine the appeal in a summary manner, according to its course and practice in other cases, and thereupon to affirm, reverse or modify the finding of said commission in such manner as it may deem just and reasonable. •The state sewerage commission was superseded by act of April 16th, 1908 (P. L. 1908 p. 606), and all its powers and duties were vested in the board of health of the State of New Jersey, the defendant. Hence the above notice emanated from that authority.

A fundamental condition prerequisite to giving to a person or corporation notice to cease polluting any of the waters of this state is a finding that such waters are being polluted in such manner as to cause or threaten injury to any of the inhabitants of this state, either in health, comfort or property. Upon such a finding it is made the duty of the board of health to give the notice. It does not appear by the notice given in this case that any finding was first made by the board of health to the effect that the city of Salem was polluting the waters of the Delaware river and its tributaries, and, consequently, so far as the notice on its face is concerned, no valid demand appears to be made upon Salem to make “such other” (not before having said what) disposition of its sewage or other polluting matter as shall be approved of by the state board of health. However, the complainant does not make the point that the notice is defective in form or substance, but, assuming that it requires the city of Salem to cease sewering into Salem creek, it proceeds to aver that such discharge of its sewage is not, and cannot be, a pollution of the waters of this state, because those waters at and about the place in question are saline and not potable, and because certain cities of Pennsylvania and Delaware, besides the borough of Pennsgrove, in this state, are discharging sewage into the Delaware river at points above the mouth of Salem creek, and that the amounts discharged by those cities are many times in excess of the small amount discharged into Salem creek by the complainant, the inference being, I presume, that the pollution, if any, from Salem is inappreciable and indeterminate. It is to be observed that under the act of the legislature in question the potability of waters is not made the test, so that the pollution can be as well of salt, as of fresh water, and yet it would seem that the character of the water, whether potable or not, is material on the question of injury to health at least.

Were it not for the saving clause in the supplement of 1907 giving to any person or corporation aggrieved an appeal to this court from the finding of the sewerage commission (now state board of health), the question whether the discharge of sewage by such person or corporation into any of the waters of this state, polluted such waters or not would be an immaterial inquiry, for, in such case, the judgment of the sewerage commission would be all sufficient, in my opinion, under the authority of State Board of Health v. Diamond Mills Paper Co., 63 N. J. Eq. (18 Dick.) 111. In that case Vice-Chancellor Stevens based his judgment largely upon the reasoning of Sir George Jessel, master of the rolls, in Attorney-General v. Cockermouth Local Board, L. R. 18 Eq. Cas. 172, in which that judge remarked: “This is an information by the attorney-general against a public body to enforce the terms of a public act of parliament. How, if I understand the law upon this subject, it is not necessary for the attorney-general to show any injury at all. The legislature is of the opinion that certain acts will produce injury and that is enough.”

Vice-Chancellor Stevens, in State Board v. Diamond Mills, was dealing with another act of the legislature, the potable water act. That act made the deposit of deleterious matter which would corrupt or impair, or tend to corrupt or impair, the qualities of the waters of any river, &e., unlawful, and it was held that it could not be shown in defence that the waters at a given point were not polluted by such matter.

The provisions in that regard of the act now under consideration are quite different, for in that act it is provided that if any of the waters of this state are being polluted in such manner as to cause or threaten injury to any of the inhabitants the sewerage commission shall act, and from that action an appeal shall lie to this court, which may affirm, reverse or modify the finding of the commission in such way as may be deemed just and reasonable. This can mean nothing else than that the court shall review the judgment of the commission.

Now, the city of Salem, the municipal corporation which received the notice complained of, appeals to this court from the action of the state board of health. The form in which the appeal is couched will be considered later.

By its bill, in which it says it “hereby appeals from said order or resolution (of the state board) to this honorable court, according to the statute in such case made and provided,” it sets forth and avers that the discharge of its sewage into Salem creek is not, and cannot be, a pollution of the waters of this state in such manner as to cause or threaten injury to any of its inhabitants, either in health, comfort or property. Thus a question of fact, within the terms and words of the statute, is raised by the appeal.

The law upon the subject of the exceptions to the answer will be found in the opinion of Vice-Chancellor Stevens, in Thompson v. North, 67 N. J. Eq. (1 Robb.) 278.

The first exception must be sustained. The defendant must answer fully. A general denial will not suffice.

The second exception must be overruled. It avers that the defendant has not set forth in paragraph 6 of the answer whether or not certain municipalities now discharge their entire sewage into the Delaware river at points nearer its source than the mouth of Salem creek, &c. Paragraph 6 of the answer goes to paragraph 8 of the bill, which makes no allegations concerning the matters pointed out in the exception. An exception must accurately point out the objectionable matter. Dick. Ch. Pr. (2d ed.) 121 note b, and cases cited.

The third exception is overruled. It is that the defendant has not, in its answer, set forth and discovered the evidence and proofs on which its determination relative to the disposition of Salem’s sewage was based. A defendant, as I understand it, cannot be called upon to set forth and discover his evidence, but only facts concerning which evidence may be given.

The fourth exception must be overruled for the reason last stated.

The fifth exception must be overruled. It is that the defendant has not answered and set forth whether or not disposition by the complainant of sewage as directed in the notice will entirely destroy the benefit and value of the complainant’s present sewerage system. Whether or not the proposed action by the state board of health will result as suggested is an immaterial and irrelevant fact, and the defendant is not called upon to answer any but relevant and material facts.

The sixth exception is overruled for the same reason given for overruling the third exception.

The defendant’s application to withdraw the answer will be overruled. If a defendant alleges that an answer was filed improvidently, and through mistake, and under a misapprehension of his rights, the court may grant leave to withdraw the answer upon terms. Williams v. Carle, 10 N. J. Eq. (2 Stock.) 543, 546. It was represented that the answer under consideration was improperly and inadvertently filed, but it was not shown that it was filed by mistake or under a misapprehension of the defendant’s rights. The parties must go to hearing on the pleadings as they stand, save that the defendant will be obliged to answer over in respect to the exception sustained.

Nevertheless, in disposing of the matter, I desire to make an expression upon the method adopted by the complainant to bring before the court for review the action of the defendant. In other words to express an opinion upon the proper form of an appeal in such a ease as this. As already remarked, the act of the legislature, under which the defendant is proceeding, makes provision that an appeal shall lie to this court, and the defendant insists that the complainant’s remedy is by “appeal” and not by bill. The form in which the appeal may be couched is neither provided by statute nor rule of court.

A suit in equity is ordinarily commenced by filing a petition, which, when preferred by a citizen, is called a bill, and when by the attorney-general to vindicate a public right, is called an information. Many statutes point out the particular mode by which relief thereunder is to be sought from the court, and when so pointed out that method must be followed. Dan. Ch. Pl. & Pr. 1 et seq. The numerous instances in which the legislature of this state has made provision that suits in this court may be commenced by petition, such as in divorce, insolvent corporations, sale of land, &c., indicate that in the absence of such statutory regulation the proper mode of commencing those proceedings is by bill. But the defendant’s insistment is not that this appeal should be taken by petition instead of bill, but simply by “appeal,” whatever that may exactly mean. How could an answer to the “appeal” be compelled? It can be compelled by subpoena ad respondendum issued on a bill filed, and I hold that an appeal in the form of an original bill is appropriate in these cases.

The defendant seeks to compel the complainant to cease sewering into Salem creek and to make such other disposition of its sewage as shall be approved by the state board of health prior to September 1st, 1913, and the complainant in its bill prays that the order or resolution of the defendant may be, reversed, set aside and for nothing holden, and that the defendant may-be enjoined and restrained from carrying into effect the provisions of its resolution and from interfering with or in any way molesting the complainant in the enjoyment of its present sewerage system. If the determination of this suit should result in a reversal of the state board’s finding and resolution, that of itself would doubtless prevent further action on its part under its resolution and notice, but the issuance of an injunction would not be inappropriate, and it majr be that jurisdiction by appeal in these cases was given to this court because of the appropriateness of its remedial process. See State Board of Health v. Diamond Mills Paper Co., ubi supra (at p. 115).

The other reasons urged in the notice of application to withdraw the answer, namely, that if the act under which the proceedings of the state board of health were taken is unconstitutional, the complainant’s remedy is by certiorari, and not by bill in equity, will be considered on the hearing of the cause, for a motion to dismiss the bill because the remedy is at law may be granted on final hearing, even though no demurrer be filed. Hoagland v. Supreme Council, 70 N. J. Eq. (4 Robb.) 607, 610. And the court may, of its own motion, dismiss the bill, upon the ground that the complainant has an adequate remedy at law. Varrick v. Hitt, 66 N. J. Eq. (21 Dick.) 442.


author: Gummeee, Chief-Justice.

text:
    Elias Berla, complainant-appellant, v. Florence Rice Strauss et al., defendants-respondents.
    [Argued June 18th, 1909.
    Decided November 15th, 1909.]
    In a suit to have a resulting trust declared in land received by defendant by devise, on the ground that part of the purchase-price was furnished by complainant and title taken in testator, the rights of the parties will not be determined on the theory that the land was originally owned by complainant and testator as tenants in common, and, as testator acquired title through purchase on a foreclosure sale, complainant could treat the purchase as a redemption, and have his rights as a co-tenant established, where the proofs were not taken on that theory.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 74 N. J. Eq. (4 Buch.) 678.

      Mr. Ghauncey G. Parleer, for the appellant.

      Mr. Louis Hood, for the respondents.
   The opinion of the court was delivered by

Gummeee, Chief-Justice.

The complainant, by his bill in this case, seeks to have a resulting trust decreed in his favor in a tract of land held by the defendants under a devise from one Bernard Strauss, deceased. The ground upon which he bases his right to such relief is that Strauss, in his lifetime, purchased the tract of land in question with moneys which were, to some extent, furnished by the complainant, and took title in his own name for the joint benefit of the complainant and himself, by virtue of an understanding to that effect existing between them.

The learned vice-chancellor, before whom the hearing was had, reached the conclusion that the proofs in the case did not support the allegations in the bill, and advised a decree of dismissal. We think he was right in the conclusion which he reached, and that the decree should be affirmed.

Upon the argument had before us it was suggested to counsel, by a member of the court, that even if the complainant was not entitled to the relief sought by his bill, nevertheless, that, as the proofs in the case showed that the land in question had originally been owned by the complainant, Strauss and one Smith, as tenants in common, and that the title which Strauss acquired came to him through a purchase made by him at a foreclosure sale in a suit brought against these tenants in common, the complainant might be entitled to treat the purchase by Strauss as a redemption of the mortgage debt, although he contributed nothing to the purchase-money, and to have a decree establishing his rights as such tenant in common, upon reimbursing the defendant for his proportionate share of the purchase-money advanced by Strauss. Following this suggestion briefs were asked of counsel upon this point by the court, and they were submitted. A careful examination of the proofs in the case, however, satisfies us that they were not taken with the view of supporting or defeating the suggested right of the complainant, and that injustice might easily be done to the one side or the other by attempting to settle that right upon the proofs submitted. For this reason we decline to pass upon the matter in this litigation, leaving it to the complainant to present it in an independent suit, if he deems it advisable to do so.

For affirmance—Ti-ie Ci-iiee-Justice, Garrison, Swayze, Eeed, Trenci-iard, Parker, Bergen, Voori-iees, Minturn, Bogert, Yredenburgi-i, Vroom, Dill, Congdon—14.

For reversal—None.


author: Gummeee, Chiee-Justice.

text:
    Joseph Stein, appellant, v. Charles H. Cuff, respondent.
    [Submitted July 3d, 1909.
    Decided November 15th, 1909.]
    1. As a general rule equity will entertain a bill to restrain the enforcement of a judgment for a new trial in an action at law only when the grounds on which the new trial is sought are not cognizable by the court in which the judgment w-as recovered.
    2. A party in an action at law, who applies therein for a new trial on grounds cognizable by a court at law, and who is defeated, cannot afterward be heard on the same matter in a court of equity.
    On appeal from an order of the court of chancery advised by Vice-Chancellor Learning.

      Mr. Ulysses G. Styron, for the appellant.

      Mr. George A. Bourgeois, for the respondent.
   The opinion of the court was delivered by

Gummeee, Chiee-Justice.

The complainant seeks by his bill to restrain the enforcement of a judgment recovered against him in an action at law -brought in the Atlantic circuit court, and to compel a new trial of that action. He rests his right to this relief upon the following facts: Shortly before the day fixed for the trial of the case by the circuit court, one R., the attorney whom the complainant had employed to defend the suit, refused to attend at the trial, or to surrender to the complainant certain papers which the latter had deposited with him, and which would have conclusively established the defence set up in the action, unless the complainant would satisfy an exorbitant demand for money made upon him by R. The complainant refused to comply with this demand, employed another attorney, and went to trial on the day fixed. R. absented himself from the court, and retained possession of the papers which complainant had deposited with him. Ror want of R.’s presence as a witness, and for want of these papers, the defence failed, and a verdict went against the complainant.

Upon the presentation of the bill to the chancellor an order to show cause why a preliminary injunction should not issue in accordance with its prayer was allowed. Upon the hearing of that order it was disclosed by affidavits submitted on behalf of the defendant that, at the time of the trial, the complainant’s substituted attorney was aware of the importance of R. as a witness and of the value of the papers in his possession as proof supporting the defence; that notwithstanding this knowledge no attempt was made on behalf of the complainant either to compel the appearance of R. or the production of the papers at the trial. It further appeared by these affidavits that in due time after the rendition of the verdict, application for a new trial was made by the complainant to the court in which the action was brought; that the grounds upon which the application was rested were the same as those upon which relief is sought by the present proceedings; and that, after consideration, the application was denied by the trial court.

The conclusion reached by the court of chancery was that, on the facts set out in the bill of complaint, and the defendant’s answering affidavits, a preliminary injunction ought not to issue; and it was so ordered. From this order the complainant appeals.

Although the hearing of applications for new trials in actions at law is a part of the ancient jurisdiction of a court of equity, yet, even in the days before courts of law had extended their jurisdiction over that subject, chancery exercised this power sparingly. Smith v. Lowry, 1 Johns. Ch. 320. Since courts of law have assumed jurisdiction over applications for new trials in causes instituted before them, equity has gradually withdrawn from that field of jurisprudence, so that in the present day it may be said, as a general rule, that it will only interfere in that direction when adequate relief cannot be afforded by the court in which the judgment has been obtained; or, to state it differently, when the grounds upon which the new trial is sought are not cognizable by the legal tribunal. Hannon v. Maxwell, 31 N. J. Eq. (4 Stew.) 318, 329. Upon this ground, therefore, the refusal of the court of chancery to direct an injunction was entirely proper.

The refusal is to be justified also upon a broader ground. Assuming that the exercise of jurisdiction by the court of chancery in applications for new trials is a matter of discretion in that court, nevertheless the jurisdiction over that subject is concurrent with that of the law courts, and a litigant may select either tribunal as the forum in which to have such an application considered and determined. If he selects the law court he cannot afterwards be heard upon the same matter in a court of equity, for such a proceeding would be, in its essence, a review of the determination of the legal tribunal, and such power of review does not reside in the court of chancery. The principle that the decision of a court of competent authority is binding and conclusive upon all other courts of concurrent power is of universal application; and for this reason, as was said by Chancellor Kent in Simpson v. Hart, 1 Johns. Ch. 91, 97, in discussing the question which we are now considering: “Where courts of law and equity have concurrent jurisdiction over a question, and it receives a decision at law, equity can no more re-examine it than courts of law in a similar case can re-examine a decree in a court of chancery.”

The order appealed from will be affirmed.

For affirmance—The Chief-Justicie, Garrison, Swayze, Reed, Trenci-iard, Parker, Bergen, Voobhees, Minturn, Bogert, Vredenburgi-i, Vroom, Gray, Dill, Congdon—15.

For reversal—None.


author: Garrison, J.

text:
    Frank Lake et al., respondents, v. Josephine T. Weaver et al., appellants.
    [Argued June 22d, 1909.
    Decided November 15th, 1909.]
    1. When a deed of conveyance duly delivered by the grantor has remained for a long period of years in the possession of the grantee, its acceptance, nothing appearing to the contrary, will be inferred; and a like inference arises where the deed was for the benefit of the grantee.
    2. The title to land, if once vested in a grantee by the acceptance of a valid deed of conveyance, cannot, in legal contemplation, be revested by the grantee in the grantor or his heirs save by an appropriate documentary act; in the absence of such an act the fact that the deed was not recorded or that it was lost is ineffectual either to devest the legal estate or to revest it in those who appear as owners of record.
    3. Admissions or declarations of the holder of the legal title to land that havet not induced any action or inaction in other claimants or worked any change in their status do not constitute an estoppel.
    On. appeal from tlie decree of tire court of chancery advised by Vice-Chancellor Garrison, who filed the following opinion:
    In an opinion filed on the 15th day of May, 1908, I formulated the issues and announced my conclusions in this cause.

      This cause has been before the court for a long time, the first testimony therein having been taken at Trenton on the 11th day of December, 1906.
    Among the matters offered in evidence at a hearing held January 28th, 1908, was the deposition of one George A. Bourgeois, taken on the 11th of January, 1908. This deposition was taken at the instance of the complainants. Among the objections made on behalf of the defendant to the admission of this deposition was that it appeared that Mr. Bourgeois was, at the' time of the communications and transactions alluded to in his testimony, the solicitor and counsel of Mrs. Josephine T. Weaver, and that, by the familiar rule which protects the communications of clients, her communications to him were privileged and protected. The court thereupon considered all of the evidence which had been taken at that hearing upon the matter, and not finding any in which Mrs. Weaver had waived her privilege, ruled that the deposition was not admissible. Therefore at the time the court decided the case there was no testimony, excepting that given by Mrs. Weaver upon the witness-stand, as to the transactions between her and her son Theodore at the time that she received the deed in question, which deed having been lost, the defendants took the proceedings to have it established under the statute which are sought to be enjoined in this suit by this bill.
    The complainant, after the filing of my opinion of May 15th, 1908, petitioned the court for a rehearing, which was granted and has now been held. At that rehearing it developed that the testimony taken at Trenton on December 11th, 1906 (overlooked by all of the parties and by the court at the time that the admissibility of the Bourgeois deposition was being discussed), contained many references by Josephine T. Weaver to the matter in hand. It is shown in that testimony that Mrs. Weaver, upon being interrogated by her own counsel as to why she had admitted in the specific performance suit brought against her by the Whites that one-third of the property was owned by the children, answered that it was because of advice given to her by Mr. Bourgeois, and she assumed to recite the language that he used to her in giving her that advice, saying that he told her that if the deed was lost, as she said it was, her rights were all lost— that she had no rights—that they were lost, and that, acting under that advice, she admitted that the children had a third interest.
    The Bourgeois deposition dealing with this matter of the failure to set up the rights of Mrs. Weaver under the deed of her son to her in the specific performance case, states that the reason was that she told him, Bourgeois, that this deed, which she exhibited to him, was given to her by her son for no consideration whatever, that she had given nothing for it; that she held it for the children of her son Theodore, and had no other interest in it, and that, under the circumstances, he advised her that there was no necessity for her to set it up in the specific performance case.
    Since the entire case, as dealt with by me heretofore, rested upon the testimony of Mrs. Weaver, and since the testimony of Mr. Bourgeois, an impartial and credible witness, shows that her testimony is false, I propose to reverse my finding of fact.
    I now find that Mrs. Weaver received this deed under circumstances which made it optional with her (as I heretofore held in the partition suit, White v. Smith, 72 N. J. Eq. (2 Buch.) 697), whether she would take it or not, and I find that she did elect, as shown by the Bourgeois testimony, not to take it, and that by her actions and conduct she did, in every way that was possible except by actually drawing a deed from herself to the children and putting that on record, vest the title in the children. In other words, the title descended to the children on the record. If she withheld the deed from record, the record would vest the title in them. She did withhold the deed from record; she stated that; she practically shows that whatever her rights were, she was making a gift to the children, or, at least, not claiming any rights herself, which resulted in a gift to the children, or resulted in the children getting the title, and I now find the very state of mind exhibited by her own conduct which, without the Bourgeois testimony, I failed to find in that suit.
    I will advise a decree that the defendant Josephine T. Weaver be enjoined from proceeding to have this deed established of record under the statute, and that Josephine T. Weaver has no interest in the one-third of the proceeds realized in the partition suit, which, therein nominally go to the complainants in this suit, and that the complainants in this suit may apply therein for their rights, upon notice to the defendants.
    The foregoing was the oral statement of the court in deciding the case at the conclusion of the rehearing.
    Having been notified of the taking of an appeal, I think it proper to add a brief statement for the purpose of making the grounds of my decision more easily understood.
    I do not think it necessary to restate the facts, in view of the two previous statements reported in White v. Smith, supra, and in the unreported case of Lalce v. Weaver. I desire to add, however, the impression which I think is apparent in my previous dealings with this evidence, which I obtained from Mrs. Weaver’s manner, and, to some extent, from her own testimony, and that was that she was not willingly asserting any claim under the deed from her son to herself, but was, so to speak, permitting herself to be used to establish a legal position outside of and unconnected with her own volition. Her conduct with respect to the deed itself was in accordance with this attitude. She did not record it, and no longer had it in her possession, and my impression always was that she had voluntarily destroyed it. Even before the admission of the Bourgeois deposition I could not escape the conviction that Mrs. Weaver, from the date of the deed in 1889 to 1905, when the application to establish the lost deed was made, a period of sixteen years, did not intend to take any personal advantage of the deed. But in the absence of any clear legal proof that this conduct was the result of an executed purpose to thereby make a gift to the children of her son (the grantor in the deed), I decided that her legal rights prevailed. And I do not now decide that such legal rights fail because she must be considered a trustee.. I am aware of and give full weight to the decisions in our state to the contrary. I do not intend by this decision to abate at all from the rule established in this state that a conveyance upon an expressed consideration with the uses declared in favor of the grantee is protected under the statute of frauds from attack by oral proof on the part of the grantor. This rule I consider to be too well settled to require citation.
    If, however, the alleged trust in this case is to receive any consideration, and the decision be not pnt upon the ground upon which I put it, the complainants could prevail without infringing upon the rule just stated. There is nothing to prevent one who is a trustee under an oral trust unprovable under the statute of frauds from voluntarily ezecuting such a trust, and after such execution the court will not interfere. IS Am. & Eng. Encycl. L. {2d ed.) 1169, note 5.

    Giving to the Bourgeois deposition the controlling weight to which, by reason of the character of the witness and his absolute impartiality, it is entitled, it establishes that Mrs. Weaver informed him she had no interest in this property, was a dry trustee, and was thereupon advised by him that, under the circumstances, the deed which she exhibited to him was of no consequence or moment.
    In the very suit then in hand she asserted the ownership by the children of her son, the grantor in the deed, of the very lands described in the deed and at or about that time the deed finally disappears—destroyed, as I have before stated, I believe, by her!
    The proper finding upon this state of facts would be that she had executed the trust. If she recorded the deed and the legal title was vested in her she was a dry trustee. If she desired, then, to execute the trust, which was not enforceable against her because of the absence of a writing, she would have to execute a deed or declaration of trust to the children aforesaid. But her purpose to execute the trust and vest the title in the children would be just as effectually accomplished, without any expense or trouble, by merely destroying the paper evidencing the legal title in herself.
    It was an immaterial detail, therefore, excepting only the matter of expense whether she recorded this deed and made one back to the children, or whether she destroyed the deed and thereby just as effectually caused the title to be in the children. The children, by the operation of law, held the title to this property unless the deed from their father to Mrs. Weaver was effective.
    Her conduct, therefore, at that time was an effective execution of the trust, and the fact that the same was not enforceable against her is now negligible.

      But, as before stated, I think exactly the same finding will result by considering her in the position of a donor whose gift was completely executed, and will not now be undone.
    While only her own testimony was usable to discover the facts, I was constrained, unwillingly, as appears by my statement at the time, to find that she might hold this otherwise voluntary deed as a mortgage. I could not even then escape the conviction, that from the time she obtained the deed as aforesaid, and for the sixteen years which followed, her intention had always been to taire no advantage under the deed, and to give the benefit of the property to the children of her son. But I had not, up to the time of the admission of the testimony of Bourgeois, any sufficient proof upon which to rest my conviction of what the situation really was. That evidence, in my view, clears up the whole case. It shows that Mrs. Weaver never intended to claim anything under the deed given her by her son; that, therefore, she refrained from recording it; that when every legal and moral necessity called upon her to honestly state the facts and her intention or claim (namely, in the specific performance case of the Whites against her), she not only negatived her own claim by not setting it up, but affirmatively set up that the right, title and interest were in the children of her son. At that time, with full knowledge of the facts, with the necessity for her to declare her intention, with the deed in her possession, and able counsel at her elbow, she disclosed, in my view, her intention and determination, which was to refrain from claiming anything personally beneficial to herself by reason of the deed, and to thereby give to the children of her son the property in question. Immediately thereafter the deed disappeared.
    I think it entirely clear that she must be held to have effectually given (in consonance, as I believe, of her original intention never to take) the property in question.
    The decree will be along the lines above indicated.

      Mr. Gilbert Collins, for the appellants (Messrs. Melosh & Morten, on the brief).

      Mr. John J. Crandall, for the respondents.
   The opinion of the court was delivered by

Garrison, J.

In the view that we take of this case it is not necessary to determine whether the deposition of Mr. Bourgeois as to the statements made to him by Mrs. Weaver was properly admitted in evidence or to decide whether she in fact stated to him that her son, Theodore, had made the deed to her to protect his children, and that she was to hold the deed for the children, and had no interest in it excepting to see that Theodore’s children got their father’s share of the farm. Ror the purposes of this appeal it may be assumed not only that Mrs. Weaver made all of these statements, but also that they correctly represented her understanding of the transaction and her attitude and intentions with respect thereto from the day the deed was delivered to her down to the day that its loss was discovered. Assuming all of this to be so the salient fact remains that in 1889 Theodore S. Weaver executed and delivered to his mother, Josephine T. Weaver, the deed in question, which remained in her possession until its loss in 1903, during all of which period the legal title (which must have resided somewhere) was in one or the other of the parties to the said deed. If the title remained in Theodore it is now in his heirs; if it passed to Josephine she, notwithstanding the disappearance of the deed, still holds the title subject to such trusts only as are enforceable under the statute of frauds. Wherever, in fine, the legal title was from the time of the delivery of the deed to that of its disappearance there it now is. Hence, in our judgment, to decide where the title cwas during that period is to decide this case.

The question that is thus fundamental is essentially one of fact and resolves itself into the single inquiry whether the deed that was delivered by Theodore to his mother was accepted by her; or perhaps the question is still narrower, viz., whether after such a lapse of time acceptance of the deed as of the date of its delivery will not be inferred unless some stronger inference points to the opposite conclusion.

That there was a good delivery of the deed is not questioned, nor is it even suggested in proof or in argument that at the time of its delivery Mrs. Weaver refused to accept it or that she had any conceivable motive for so doing.

On the contrary, her understanding that the deed was delivered to her in the interest and for the protection of her grandchildren afforded the strongest possible motive for accepting it, so strong indeed as both upon reason and principle to assimilate the transaction with those in which acceptance is to be inferred from the beneficial character of the conveyance. If, however, the grantee’s understanding of the purposes for which the deed was delivered to her is to be ignored because not legally manifested, then the deed for which no consideration passed was, in such legal point of view, a gift, and would, without doubt, have been so treated if attacked by the creditors of the grantor. Erom whichever standpoint therefore the transaction be viewed, it was one to which the inference of the acceptance of a benefit is applicable. It has been held that the delivery of a deed to a third person passed title eo instante upon the ground that, nothing appearing to the contrary, it is to be inferred that a grantee accepts what is for his benefit. Jones v. Swayze, 42 N. J. Law (13 Vr.) 279.

Traurig v. Gelb, 70 Atl. Rep. 352, in which the court of errors and appeals cited Jones v. Swayze as authority for “the rule that the law will presume that a man accepts what is for his benefit,” was a case in which delivery was made to the grantee directíy and not to a third person, and it must be that the inference that obtains when the grantee is not present and is not informed will a fortiori apply when he is both present and acquainted with the contents of the deed and takes it into his possession. Cases illustrative of this rule are collected in 9 Am. & Eng. Encycl. L. 162; see, also, Matheson v. Matheson, 117 N. W. Rep. 755. In addition to, or, if need be, quite independently of, the foregoing consideration, the fact that Mrs. Weaver retained the deed for fourteen years after its delivery to her by her son, raises an inference of her having accepted the deed that can hardly be said to be weakened, and that certainly is not overcome by the fact that she did not give publicity to a family matter by spreading the deed on the public records. The declarations of the grantee that Theodore’s share belonged to his children,’ while evidential of the purpose for which the deed was made to and held by her, have no bearing upon the question as to where,' upon an uncontroverted state of facts, the legal title resided. The inference of acceptance arising from lapse of time and the other circumstances adverted to is so strong and so entirely unrebutted that the only conceivable hypothesis at all consistent- with the retention of the title by Theodore during the fourteen years that followed his delivery of the deed is that during all of such period such instrument remained in a sort of escrow so that the legal title did not pass under it until the happening of some event or the performance of-some condition. Such hypothesis, however aptly it may account for the conduct of the parties, runs directly counter to the imperative rule that a deed cannot be in escrow with its grantee. The soundness of Chief-Justice Beasley’s exposition of this subject in Ordinary v. Thatcher, 41 N. J. Law (12 Vr.) 403, has never been questioned in this state. The rule everywhere is that the delivery of a deed to its grantee cannot be in escrow, but is, regardless of such purpose, a good delivery of the deed. 11 Eng. & Am. Encycl. L. 333, “Escrow;” 16 Oyc. 561, “Escrows.”

The stability of all titles to land rests at bottom upon this rule.

The conclusion, therefore, seems to us to be irresistible that from 1889 to 1903 the legal title to Theodore’s interest in the farm was in the grantee of his deed, viz., Josephine T. Weaver, the appellant. This conclusion must also have been assumed by the learned vice-chancellor before he could consistently regard Mrs. Weaver in-the light of a donor of such interest. Por when he says that Mrs. Weaver “was making a gift to her children,” and was “in the position of a donor whose gift was completely executed,” he was in effect assuming her acceptance of the deed without which she would have had nothing to donate and could not have held the position of a donor. Excepting as such acceptance is thus implied we cannot adopt the reasoning by which the conclusion is reached that an executed gift resulted from the destruction by Mrs. Weaver of the deed, chiefly from the consideration that there is no express finding of fact that Mrs. Weaver did destroy the deed or any testimony that would support such a finding. The other ground of the decision below, viz., that of the voluntary execution of an unenforceable trust seems to involve the same implication as to the acceptance of the deed. Eor a trust, whether enforceable or unenforceable, must exist in order to be a trust, and, in order to exist, must be supported by the legal estate which in the present case could have become vested in Mrs. Weaver in no other way than by her acceptance of Theodore’s deed. Further than this we cannot go with the court below, not only because it was not proved that Mrs. Weaver destroyed the deed with the object of executing a trust, but also because, in our opinion, the acts that she did were entirely ineffectual for such object. The underlying legal estate essential to the conception of a trust is neither annulled or transferred by the loss of the deed that conveyed it or by withholding such deed from record or by both combined; the title to land, if once vested in a grantee, cannot, in legal contemplation, be revested by the grantee in the grantor or his heirs or transferred to- strangers save by an appropriate documentary act.

Fifty years ago Chancellor Green, in the case of Wilson v. Hill, 13 N. J. Eq. (2 Beas.) 143, declared that “the rule of the common law is perfectly well settled that the cancellation of a deed by consent of parties will not devest the grantee or revest in the grantor an estate which has once vested.”

How far a court of equity may go in giving effect to the cancellation, destruction or surrender of an unrecorded deed cannot properly or profitably be discussed upon this appeal, where, in the absence of proof of any of these essential acts, nothing but dicta could result.

The question was suggested seventy years ago by Chancellor Pennington’s statement in Faulks v. Burns, 2 N. J. Eq. (1 Gr. Ch.) 250, that “the parties to a deed in a case not affecting third persons may, b3r agreement, cancel it if it be not recorded,” and the entire subject, which is one of great interest, is treated in a comprehensive note to the case of Matheson v. Matheson (already cited), as reported in 18 Lawy. Rep. An. (N. S.) 1167.

The learned vice-chancellor, in support of the conclusion reached by him, cites 15 Am. & Eng. Encycl. L. 1169, note 5. The title in the Encyclopedia is “Implied Trusts,” and the text annotated is as follows:

“Though under the statute no trust results in favor of the person by whom the purchase-money was paid still, if the grantee voluntarily executes the trust, such execution is binding upon him, and cannot be recalled.”

This text predicates the due execution of a resulting trust, and the cases cited in note 5 in support of it are all cases either of resulting trusts involving actual fraud or of attempts to invoke equitable powers in aid of a fraud, hence neither the text nor the cases throw any light upon what will constitute the due execution of an express trust which is the question sub judice.

Assuming, therefore, but not deciding, that the voluntary destruction by Mrs. Weaver of the unrecorded deed with the intent thereby to execute the parol trust, might afford a foundation for the decree rendered in the court below, it is none the less true that the fact of such destruction must be put in issue and established like any other essential fact. This was not done inasmuch as there was no such allegation in the bill, no adequate proof produced at the trial, no such issue raised or tried out in the court below, and, finally, no such contention made in this court.

Our conclusion on the whole case is that Josephine T. Weaver in 1903 was lawfully seized of her son’s estate and interest in the Weaver farm, and that since that time she has not, by any method known to the law, devested herself of such estate. This leads to a reversal of the decree of the court below upon strictly legal grounds, the case being barren of any equities unless the appellant Josephine T. Weaver by her admissions, in the course of litigation or otherwise, has estopped herself from asserting her legal title.

The vice-chancellor failed to discover such an estoppel, and in this we think he was quite right, for the admissions and declarations of the appellant, while evidential against her, lacked the essential element of an estoppel, viz., they did not induce any action or inaction or change of status in the respondents.

The result reached is that the decree of the court of chancery should be reversed to the end that the complainants’ bill be dismissed, and the appellant Josephine T. Weaver suffered to proceed with the remedy provided by statute in the case of a lost deed.

For affirmance—None.

For reversal—The Chief-Justice, Garrison, Swayze, Eeed, Parker, Bergen, "Voorhees, Minturn, Bogert, Vredenburgh, Vroom, Gray, Congdon—13.


author: Swayze, J.

text:
    George Ewald, respondent, v. Soter Stephen Ortynsky et al., appellants.
    [Submitted July 3d, 1909.
    Decided November 15th, 1909.]
    A defendant who has demurred to a bill in chancery upon grounds going to the whole of the complainant’s bill whose demurrer has been sustained on some of the grounds specified, cannot appeal from a subsequent order obtained on his own motion which assumes to sustain the demurrer on those grounds and overrule it on other grounds.
    Ou appeal from a decree of the court of chancery advised by Vice-Chancellor Learning.

      Mr. Herbert Clark Gilson, for the respondent.

      Mr. Harry B. Brocklmrst, for the appellant.
   The opinion of the court was delivered by

Swayze, J.

The appellant is the defendant in the case. It demurred to the bill of complaint for numerous causes. Four of these which went to the whole of the bill were held good by the vice-chancellor, and accordingly an order was made on the motion of the appellant allowing the demurrer. Later the appellant applied for a re-argument and obtained an order allowing the demurrer on the four grounds and overruling it on the others, and then appealed upon the ground that the demurrer should have been allowed on all the grounds specified.

Only those who are aggrieved can appeal. Chancery act (P. L. 1902 p. 545 § 111); Coryell v. Holcombe, 9 N. J. Eq. (1 Stock.) 650; Green v. Blackwell, 32 N. J. Eq. (5 Stew.) 768. The appellant clearly was not aggrieved by the first order, which was wholly in its favor. Nor is it aggrieved by the second order, erroneous though it is; for the effect of sustaining the demurrer on any ground was to sustain it altogether. Illustration may be found in cases where the reasons specified were held insufficient but the demurrer was sustained for a reason alleged ore ienus. Stillwell v. McNeely, 2 N. J. Eq. (1 Gr. Ch.) 305; Barrett v. Doughty, 25 N. J. Eq. (10 C. E. Gr.) 379; Story Eq. Pl. § 464. Although the order is erroneous, it was entered on the motion of the appellant as a substitute for a proper order in his favor. A party cannot appeal from an order procured by himself. Hooper v. Beecher, 109 N. Y. 609; 15 N. E. Rep. 742. To permit him to do so would simply open the door to unnecessary appeals. No better illustration can be found than this very case, since the second order could have had no possible object except to lay the foundation for this appeal.

The appeal is dismissed, with costs.