text:
    James Brady v. Atlantic City et al.
    1. A stockholder of a water company who stands by while the inhabitants of the city, which is supplied with water by his company, call and hold an election to authorize the common council to purchase .the plant of the company, and also while negotiations for such purpose are carried on for more than two years, during which time proceedings for condemnation of said plant are taken and carried through to judgment without objection by him, will be held guilty of laches in equity in the absence of fraud.
    2. In the exercise of the right of eminent domain, the moving party may withdraw therefrom at any time before final judgment, but a resolution directing an attorney to ask leave of the court to withdraw is not conclusive until the court has acted upon the application.
    3. Private corporations organized and establishing plants for the purpose of supplying a city with water, are subject, under the statute, to the exercise of the right or power of eminent domain, and cities in which they are located may, in case of failure to agree upon the consideration to be paid therefor, proceed to condemn such plants for the purpose of supplying the city with water.
    4. No fraud appearing, and the legislature conferring the right to a water company to sell and convey, and, in case of failure to agree, also conferring the right upon the city to condemn such proceedings of condemnation confirmed by á legal tribunal, cannot be annulled by a court of chancery at the instance of a stockholder.
    5. This court does not review judgments at law on the ground of irregularity.
    On order to show cause &c.

      Mr. George A. Bourgeois, for the complainant.

      Mr. Allen B. Midieott and Mr. Joseph Goult, for the city.

      Mr. David J. Paneoast, for the water company.
   Bird, V. C.

The complainant in this case is a stock and bondholder of the Atlantic Water Company. This company was formed by the consolidation and merger of the Atlantic Water Company and the Consumers’ Water Company. These companies were located in Atlantic City. Before the consolidation the city endeavored to negotiate with them for the purchase of their plants. It failed in this endeavor. Afterwards the consolidation and merger took place. Failing to negotiate a purchase, the city proceeded, under the statute, to condemn the rights, privileges and franchises of the Atlantic Water Company. The commissioners awarded to the company $843,564. Certain steps were taken, as will hereafter appear, to have the matter appealed, which were ineffectual. The city being about to withdraw and abandon the proceedings, the Atlantic Water Company expressed a desire to compromise, and a compromise was effected reducing the award to $771,782, for which amount the circuit court proceeded to confirm the award. It is this judgment or award which the complainant, as stock and bondholder of the Atlantic Water Company, asks this court in effect to declare null and void. I will proceed to state somewhat more in detail the facts upon which the prayer rests.

On the 20th day of June, 1892, the common council of the city of Atlantic City passed a resolution providing for the holding of a special election to adopt the provisions of the law entitled “An act to enable cities to supply the inhabitants thereof with pure and wholesome water,” approved April 21st, 1876, and on the 30th day of June in the same year an election was held and the provisions of the said law accepted and adopted. After this act of acceptance by the city both the said Atlantic City Water Company and the said Consumers’ Water Company offered to sell their plants to the city, the former for $500,000 and the latter for $200,000, as above stated. On the 3d day of October, in the same year, the common council of said city passed an ordinance whereby it agreed to accept the offer as made by the said Consumers’ company, providing for the payment of the consideration expressed, and on the 19th day of December following the common council passed a similar resolution accepting the offer made by the Atlantic City Water Company, and providing for the payment of the consideration expressed upon the said company’s executing and delivering a good and sufficient deed of conveyance in the law for all their rights, privileges and franchises.

For certain reasons the supreme court, upon certiorari, declared these ordinances to be void.

On the 5th day of February, 1894, these water companies consolidated and merged their interests under the name of Atlantic Water Company.

On the 16th day of April, 1894, the city, .having overcome the legal objections, passed an ordinance providing for the purchase of the plant of the Atlantic City Water Works Company and for the payment of the consideration, and on the same day a similar ordinance providing for the purchase of the Consumers’ Water Company and for the payment of the consideration. On the 28th day of May following, the city informed the said water companies that it was ready to carry into effect the proposed contract made with the said companies, and that on failure to consent to carry out the said contracts, it would consider that the said companies abandoned and refused to enter into any agreements with the city to sell their said plants, and upon such failure the city would proceed to condemn the said plants in accordance with the act of April 21st, 1876.

The bill then shows that the Atlantic Water Company refused to carry out the agreement of the said Atlantic City Water Company and the said Consumers’ Water Company, and declared that it refused to sell.

Upon due application made for that purpose to the circuit court three commissioners were appointed to appraise the value of the said plant of the said Atlantic Water Company. On the 7th day of December following, the commissioners made their award, in and by which they fixed the value of the plant of the said Atlantic Water Company at the sum of $843,564. Atlantic City being dissatisfied, applied to the judge who appointed the said commissioners, for a trial by jury, which application was rejected. The bill then alleges

“that the said city of Atlantic City and the board of directors of the Atlantic Water Company, or a committee or committees thereof, entered into some sort of arrangement whereby an understanding was had that the said award should be reduced to the sum of §771,782, and that afterwards, to wit, on the 27th day of April, in the year 1895, on the application as aforesaid of the said city and water company, the judge of the circuit court aforesaid reduced the said award from §843,564 to the compromise sum of §771,782, and did then and there confirm the said award so reduced, changed and compromised as aforesaid.”

The bill then alleges that the

“ authority to change, reduce and compromise the award aforesaid, on the part of the said Atlantic Water Company, wag a resolution of the board of directors of the said company, passed at a special meeting on the 24th day of April; ”

and

“that the said resolution was passed by the board of directors aforesaid without the consent or approbation of the stockholders of the said company; ”

and that the said stockholders never consented or approved of the action of the said board of directors in that behalf; and that the said complainant never has and does not consent to the sale of the said plant to the said city.

The complainant alleges that he has been defrauded and that the attempt to transfer the title of the said Atlantic Water Company to the said city was a

“scheme entirely foreign to the objects and purposes of the said Atlantic Water Company and beyond the powers of the board of directors thereof, and against the best interests of the stockholders, and if consummated will result in irreparable injury to your orator and the other stockholders of the said company.”

The prayer is

“that the said Atlantic City may be enjoined from entering or taking possession of the plant, property, privileges and franchises of the said Atlantic Water Company, or the rents, issues or profits thereof, and that the said Atlantic Water Company may be enjoined from conveying or transferring its plant, property, privileges and franchises, or the rents, issues or profits thereof to the said city of Atlantic City ; and that the award aforesaid, so changed, compromised and reduced as aforesaid may be decreed to have been fraudulently obtained as against your orator and other stockholders of the said Atlantic Water Company.”

It thus appears that the complainant alleges that if the court does not interfere and prevent the transfer of this plant to the city he will be defrauded and will suffer irreparable injury, and that the attempted sale or transfer of the title of the plant to the city is entirely foreign to the objects or purposes for which the water company was formed.

There is nothing in the bill or affidavits which gives the slightest color to the charge of fraud, that is, there is not a single fact presented which exhibits the slightest effort at circumvention or deceit. Legal fraud is sometimes spoken of when the act complained of is contrary to law, to characterize a wrong. Whether the act complained of in this case is illegal seems to be the inquiry.

Besides the charge of fraud, which I will dismiss without further attention, it is urged that the directors of the Atlantic Water Company had no right or authority to make sale of or to transfer the plant. It is important to observe in the first place that the complainant never manifested any interest in this controversy until after the confirmation of the report of the commissioners appointed to appraise the value and assess the damages, as such report was compromised on the-day of April, 1895, almost three years after negotiations were first begun between the water companies and the city for the sale and purchase of these water privileges by the city, and after the city had an opportunity of expressing its desire at the ballot-box. During all these months he allowed these negotiations to be carried forward, the appointment of commissioners upon the application of the city, their report to be made, the water company to express in a formal way its willingness to dispose of the plant at a price below that awarded by the commissioners, without having made any objection upon the ground of ultra vires until after all the steps had been taken except that of formal conveyance by the water company to the city. During all this time these parties were dealing with the interests of the complainant. During all this time he stood by, allowing these.negotiations to be carried on at very great expense without protesting that they were without warrant or declaring that he would not be bound. That he has been guilty of laches, and in consequence thereof, under the circumstances of this case, should be estopped, has been urged with great force, and I must confess with very great propriety. Rabe v. Dunlap, 6 Dick. Ch. Rep. 40.

He knew from the beginning the efforts which the city was making to purchase and the desire upon the part of his company to sell. He knew of the negotiations and of the agreement on the part of his company to sell. He knew of the condemnation proceedings and of their confirmation by the court. He looked on contentedly until Stroud had exhausted his efforts and failed.

But I am wholly unable to come to the conclusion that the conduct of the board of directors of the water company was 'ultra vires. There is direct legislative authority for their action. The act of the legislature entitled “An act to enable cities to supply the inhabitants thereof with pure and wholesome water,” approved April 21st, 1876 (Rev. p. 780 § 1), provides:

“That cities may take and convey from such source or sources as may be practicable, into and through said city such quantity of pure and wholesome water as may be required for domestic and other purposes by the inhabitants residing within the corporate limits of said city, and to this end the said city is hereby authorized and empowered in the corporate name of said city to purchase of any water company owning water works within said city, which said company is hereby authorized to sell and convey, all the real estate, personal property and works, and all the corporate rights, powers, franchises and privileges of said company, for such sum as may be mutually agreed upon by and between the said city and the said water company; and upon the due execution of a conveyance therefor, the said real estate, personal property and works and corporate rights, powers, franchises and privileges, shall pass to and vest in the said city in as full and ample manner as the same now are or heretofore have been held and enjoyed by the said water-company .”

If I were governed by the allegations iu the bill simply, the discussion might properly end here, since, as stated, the only two questions raised are those with respect to the fraud and the right or power of the water company to sell and convey, both of which, I think, should be determined against the complainant. But upon the argument it was insisted, upon the part of the complainant, that the city having passed a resolution authorizing their solicitor and counsel to make application to the court, before which the proceedings for condemnation were still pending, for leave to discontinue said proceedings and to withdraw their application for condemnation, no further steps could be taken in the matter which would be binding or have any legal efficacy upon any of the parties thereto. It appears that counsel, in behalf of the city, made such application to the court, but before the matter was determined the counsel of the water company, at the instance of the company itself, proposed a compromise and offered to accept of one-half of the sum awarded by the commissioners in excess of the sum offered by the city to the water company, the former being $843,564, and the latter being $700,000, thus making the proposed compromise $771,782. This offer was accepted on behalf of the city. The fact was recited upon the record and approved by the court.

This was not a withdrawal from the proceedings. The prosecution of the cause was not discontinued. It was only an application to the court for' leave to discontinue. To all intents and purposes, at the time of the application to discontinue and ever since until now, so far as the record shows, the proceedings were and are clothed with all the vitality that can possibly be given to any such. It was, indeed, admitted upon the argument that one Stroud, who, as a taxpayer, applied for a certiorari to the justice of the supreme court who appointed the commissioners, and who finally approved the award, as compromised by the parties, to bring up the proceedings for review. This shows that they were not discontinued by the city authorities. It was also admitted that the justice refused to allow the certiorari. This shows that the learned and experienced justice regarded the proceedings as regular and clothed with all the'vitality essential to give them legal efficacy.

But if this reasoning were to fail, and it were to be decided that the city had, in effect, abandoned the proceedings, notwithstanding the legal formalities which afterwards characterized the proceedings and had the sanction of the judge of the circuit court, the complainant in this case cannot take advantage thereof. He likens this ease to that of O’Neill v. Freeholders of Hudson County, 12 Vr. 171. In that case, O’Neill was the owner of the laud which the freeholders took steps to condemn. The freeholders, being dissatisfied with the amount of the award, withdrew their application or discontinued proceedings. O’Neill brought suit for the amount of the award. The defence was that the proceedings had been discontinued. In this case, the only person who could bring suit for the recovery of the money awarded would be the Atlantic City Water Company, and the only person who could raise the question as to the legality of the proceedings is Atlantic City itself. Neither of these parties raises any such defence. On the contrary, they both insist upon the legality and perfection of the proceedings so as to completely bind the parties thereto to the specific performance of. them.

How, then, shall the question as to the illegality of the condemnation proceedings, as confirmed by the judge of the circuit court, be answered when submitted to the chancellor, at the instance of a stockholder of the water company? In my judgment, no fraud appearing, and the legislature conferring the right to the water company to sell and convey, and, in case of failure to agree, also conferring the right upon the city to condemn, such proceedings of condemnation, so confirmed by a legal tribunal, cannot be subverted, abrogated or annulled by a court of chancery at the instance of a stockholder. This court cannot say that the circuit court had no jurisdiction, nor that the proceedings in that tribunal were irregular, nor because it had not jurisdiction or because the proceedings were irregular, there is consequently no judgment. It certainly would be very remarkable if this court had the power to review judgments pronounced in courts of law, upon the ground of irregularity. Stout v. Slocum, 7 Dick. Ch. Rep. 89.

So long as the judgment of the circuit court stands unreversed, the important questions which were present and decided in Mahon v. Halstead, 10 Vr. 640, and O’Neill v. Freeholders of Hudson County, supra, cannot be called in aid of the complainant in this case.

The bill speaks of the transaction between the water company and the city as a compromise. Corporations have the right to compromise their controversies (Ellerman v. Chicago Junction Railway Co., 4 Dick. Ch. Rep. 217, 250, and many cases there cited; 1 Cook Stock & Stockh. § 171; 2 Cook Stock & Stockh. § 750; Brice U. V. 609; 1 Beach Eq. Jur. § 43); that they may form the basis of judgments or decrees (1 Beach Eq. Jur. § 94); that counsel may conclude parties (2 Beach Eq. Jur. § 1007; In re Wharton, 48 Pa. St. 487; Union Bank v. Geary, 5 Pet. 99).

But as I understand the argument of counsel for complainant, in case there be a failure on his part in all other respects, he had a right to protect his client under the authority of Keen v. Johnson, 1 Stock. 401, and Black v. Delaware &c. Co., 9 C. E. Gr. 455, and Mills v. Central Railroad Co., 14 Stew. Eq. 1. Those cases do not involve the right or power of the legislature to authorize a city to condemn the plant and franchises of a private corporation in the interests and for the benefit of the city. That the right of eminent domain exists in such cases as we are now considering, I think is not questioned.


source: Caselaw Access Project

author: Bird, V. C.

license: Public Domain

text:
    Millville Traction Company v. Eugene B. Goodwin et al.
    1. In the absence of municipal authority regulating the use of streets in which street railways have been constructed under the law and city ordinances, and are in daily use, by persons who claim the right to use such streets in a manner which will necessarily interfere with the running of the cars on such railways, or with the appliances constructed to propel such cars, that a court of equity will, when called upon, restrain a party claiming such right from interfering with or obstructing the usual and ordinary running of the cars of such street railway.
    2. In the absence of authority for that purpose, the president of a street railway company cannot contract with a third party, so as to bind the company, to suspend the running of its cars and the cutting or the elevation of its wires so that such party may move a large building upon and along its tracks one hundred and eleven feet or more, in order to cross the same.

      Hearing on order to show cause &c.

      Mr. Walter II Bacon, for the complainant.

      Mr. John 8. Mitchell, for the defendants.
   Bird, V. C.

The complainant asks that the defendants may be restrained from cutting wires by means of which its cars are propelled, and from otherwise interfering with the running of said cars. The complainant shows by its bill its organization and the right to exercise the franchises of constructing and maintaining its road on the street in the city of Millville. It shows that the defendants threatened to cut and interfere with the wires by means of which its system is maintained. It shows, also, the actual obstruction, by means of chains and other appliances, to the propulsion of the cars along its tracks at a place designated. This threat and this obstruction are occasioned by the effort of the defendants to move a large two-and-a-half-story frame building from one locality in the city of Millville to another. In order to reach the latter place they must cross the track and carry the building for one hundred and eleven feet along and over the track of the company. The highest point or peak of the building is twelve feet above the main or feed wire of the company’s structure. In order to cross the track with the building it is necessary to carry the building along the track at least one hundred and eleven feet. The complainant insists that this will take at least two days.

. All of these facts are admitted by the defendants, except the threat to cut the wires and the length of time required to carry the building from one street to another along and over the tracks of the company. The defendants insist that the time required to carry the building from the one street to the other over the tracks of the company will not exceed seven or eight hours. They insist that this will not interfere with the running of the cars, because they can do this work between the time the company ceases to run their cars, at about eleven o’clock at night, and the time they begin to run them the next morning, or within a very short time thereafter.

Besides these denials and this assertion of the length of time which will be required, the defendants allege that the president of the company expressed not only a willingness that the building might be so moved, but that the company would so far assist in the work of moving the building as to elevate the wires, that the building might have free course. This allegation is not denied by the president.

First, have the defendants the right which they claim to occupy the streets upon which this road is located, for the purpose required at all events, in case in moving the said building they interfere with the running of the cars of the company? Under the circumstances of this case, I find myself obliged to answer this question in the negative. Let us ascertain the true status of these parties. The complainant is by the admission of the defendants in the enjoyment of an unquestioned right. It may move its cars at all times according to its own pleasure, except so far as others who have a lawful right to use the highway may find it necessary so to do, provided they do so in a reasonable manner. The rights which the railroad company thus enjoy are secured to them by the law and the action of the city authorities. These rights it is entitled to be protected in as fully as other citizens are entitled to be protected in their right to use said streets for the purpose of travel in and by the ordinary means used for that purpose. Because of the privileges thus secured to it by the law and the action of the city authorities, the company has invested its money and they thereby ' perfected obligations which the constitution says shall not be impaired.

The defendants propose to occupy the highway not for the purpose of ordinary travel or communication, but for the purposes of removing a very large frame building, to do which nearly the entire street is occupied. This, it must be admitted, is an obstruction of the street. It certainly interferes more or less with ordinary travel, but the question is not whether or not they may so occupy the street in case by so doing they do not become a nuisance to others who desire and have a lawful right to use the streets for the purposes for which they are established, but the •question is, whether or not they'have a right in using the street to prevent the company from the full, free and complete exercise of the franchises with which it is clothed. I think the statement of the question brings with it the correct answer. While all persons ordinarily have a right to use the street to the same ■extent with the car company, yet they have no right unduly or unreasonably to occupy the street and so to prevent the passage of trains. It is well settled that for all ordinary domestic purposes, such as loading or unloading coal or wood'or the performance of other similar acts in connection with the household of abutting landowners, it may be necessary to suspend the moving of trains, but at most these things are of short duration and occasion only a limited suspension of travel. And one of the very great objects of the creation of streets or highways is obtaining access to dwellings for such purposes.

The claim of the defendants is that they have the right to occupy the streets in moving the house of Goodwin to such an •extent or for so long a period of time as may be necessary for that purpose, irrespective of the inconvenience to the railroad company, or interference with the regular and ordinary use of its tracks in running its cars. This is manifest by the admission, in the answer, of the manner in which they stretched their chain and other appliances across the track of the railroad, in order to move the building, thereby at once preventing the regular, continuous running of the cars. Evidently this is an extraordinary use of the streets, and if every citizen should make similar •claims, and there should be frequent demands therefor, there would be constant friction between the citizens and our streets would be constantly obstructed by the moving of ponderous bodies, unless they were widened greatly beyond their present limits. Hence, I conclude, in the absence of municipal authority regulating the use of streets in which street railways have been constructed under the law and city ordinances, and are in daily use by persons who claim the right to use such streets in a manner which will necessarily interfere with the running of the cars on such railways, or with the appliances constructed to propel such cars, that a court of equity will, when called upon, restrain a party claiming such right from interfering with or obstructing the usual and ordinary running of the cars of such street railway.

Is the complainant estopped because of the consent said to have been given by the president and his offer to elevate the wires for the more convenient passage of the building? It appears that this consent was given after the purchase of the house by the defendant Goodwin. The house having been purchased at a cost of $25, the defendant Goodwin asked the president of the road for permission to cross the track in moving the building to the place' desired. The building was then placed upon rollers. About this time, certainly before it had been moved any considerable distance, the president of the company assured Goodwin, or Barnes, his agent, that he could not cross the track with the building and that he would not permit it unless he was compelled so to do.

In considering whether the company is estopped because of what the president said, it must first be determined whether ox not the president was authorized to give any such consent and thereby bind the company. It is quite plain that the burden of showing this authority is upon the defendants. It is not shown. Is it within the scope of his general authority ? There is no pretence that the removal or transportation of buildings, or any work of a like nature, is part of the business of the railroad company. Indeed, the right of an officer of the railroad to engage the company in any such transaction is so clearly without foundation that it does not admit of argument. The cases which have been cited by the defendants’ counsel, with respect to the agency of the officers of corporations, have been very carefully considered, but there is not the slightest authority in any of them sustaining the views maintained by counsel for defendants.

My conclusion is that the defendants should be restrained from interfering with or obstructing the usual and ordinary movement of the complainant’s cars in moving the house or building mentioned and referred to in the bill of complaint. This places, the defendants upon the same level with every other citizen. It gives to them no preferences. Other citizens have not the right in traveling across or along streets occupied by the complainant company with its tracks so as to suspend or interfere for an unreasonable length of time with the running of its cars. This is only securing to the complainant the rights or privileges which have been granted to them by the law and the city authorities.

And it must not be forgotten that all the citizens of the locality who desire to use the cars of the company are interested in this question and have the right to be carried along its tracks in its cars without undue or unreasonable molestation or detention. Indeed, so important is this that the city authorities, in granting the privilege, required of the company that it should run a given number of trains, and in case of failure so to do, certain severe penalties can be imposed.

Upon the argument much was said respecting the right to occupy the streets of a city in moving a building along them. I have not found it necessary to decide this question; nor have I considered what rights or privileges might be conferred by the city authorities in this behalf, in case of conflicting claims of right; nor how far such authorities might regulate the moving of such buildings along or across railroad tracks, and to that end subject any of the appliances of railroad companies to such temporary changes as might be deemed essential. It is also proper to say that I have not considered what aid the court might properly render to a citizen desiring any particular or special use of a street occupied by a railroad company, in case such citizen should make application to the court for that purpose. In the present case, I could not look into the question because there was no cross-bill, with proper allegations and prayers for any such investigation. When these particular issues are presented in due form they can be disposed of, as nearly as possible, as the principles of justice and equity may require.

I will advise that the defendants be restrained as above indicated.


text:
    Joseph Whitehead v. Hamilton Rubber Company.
    1. The statute respecting oaths which directs that “when any oath required to be taken in any suit or legal proceeding in this state or for any lawful purpose whatever * * * when taken out of this state may be taken before any notary public of the state, territory, nation, kingdom or country in which the same shall be taken, or before any officer who may be authorized by the laws of this state to take the acknowledgment of deeds in such state, territory, nation, kingdom or country and a recital that he is such notary or officer in the jurat or certificate of such oath, affirmation or affidavit and his official designation annexed to his signature and attested under his official seal will be sufficient proof that the person before whom the same is taken is such notary or officer,” is not complied with in the absence of a substantial certification by the notary that he is such notary public, as well as to affix his official designation to the signature of his name and also annex thereto his official seal.
    2. An imperfection in the jurat to an affidavit which is required to be annexed to a chattel mortgage does not render it ineffectual as notice, according to the provisions of our registration laws, when it is acknowledged as deeds of conveyance of real estate are required to be acknowledged and recorded.
    3. When the affidavit required by the statute is sufficient in substance and there is lack of form as to the certification required by the stature, the court will not hesitate to allow such extraneous proof as would supply the deficiency, where it does not appear that any injustice will be done, and especially where it is manifest that the rights of those dependent upon such affidavit will otherwise be absolutely lost.
    On petition of appeal, by Anna W. Baird, from the determination of the receiver.

      Mr. Edwin Robert Walker, for the petitioner.

      Mr. James Buchanan, for the receiver.
   Bird, V. C.

Two questions are presented in this case for determination— first, whether or not the certificate of the notary public, who is purported to have taken the affidavit of Mrs. Baird to the chattel mortgage under which she claims, is in compliance with the law or not; and, secondly, if not, whether or not the petitioner may offer proof to show that he was such notary at the time of taking the affidavit. The language of the jurat is as follows: Sworn and subscribed before me this 8th of May, 1891. Alex. Eamsey, Notary Public.”

It is insisted upon the part of the receiver that this is materially defective. The language of the statute respecting oaths or affirmations is that .

“when any oath required to be taken in any suit or legal proceeding in this state or for any lawful purpose whatever * * * when taken out of this state may be taken before any notary public of the state, territory, nation, kingdom or country in which the same shall be taken, or before any officer who may be authorized by the laws of this state to take the acknowledgment of deeds in such state, territory, nation, kingdom or country and a recital that he is such notary or officer in the jurat or certificate of such oath, affirmation or affidavit and his official designation annexed to his signature and attested under his official seal, shall be sufficient proof that the person before whom the same is taken is such notary or officer.”

From this it appears that the statute imposes upon the notary himself the duty of certifying to his own official character. But in order to make this complete three things are essential — -first, he must certifiy to his official character; second, he must sign the same and annex thereto his official designation ; and, third, these things must be attested under his official seal. In the case I have to deal with the first of these is wanting. There is no pretence whatever of any certification of his official character. The second requisite has been complied with, the signature being followed with the words notary public,” which I regard as a complete designation of his official character. To all of which is affixed his official seal by clear and distinct impression. It seem to have, been the purpose of the legislature to specifically require these three things to be made manifest upon the face of the instrument itself, and this doubtless arose from the consideration that this very important feature of it was submitted to the officer himself instead of requiring proof of that fact from other sources. I do not suppose that so plain a provision of the statute can be dispensed with by the court. I think this view is sustained by the opinion of Mr. Justice Depue. See Minford v. Taylor, 12 N. J. L. J. 282.

The admission of this instrument, when offered in evidence, was objected to because of the defect named. Upon the argument it was insisted that if this objection should appear to be well taken, then the petitioner should be permitted to show by proof aliunde that the person who administered the oath and who signed his name to the jurat was at the time a notary public. To allow such an amendment of the jurat would not be in violation of any known principle of law or equity, especially since it does not appear that any injustice would result therefrom in consequence of any creditor of the defendant corporation having in any wise been misled by the imperfection named. It is not the record of the instrument that is objecled to, but the instrument itself. It is more than probable that the character of the affidavit or of the jurat annexed thereto is in no wise of importance in considering the validity, of a chattel mortgage when offered for record. The only requisite, perhaps, in that particular is provided in the sixth section, which makes it the duty of every clerk or registrar to record chattel mortgages when they are acknowledged or proved as deeds of conveyances of real estate are required to be acknowledged or proved. The instrument having been recorded after having been ’ acknowledged in a manner unexceptionable, the court is bound to give it all the efficacy as to notice intended by the statute. It cannot be contended, therefore, that the record was ineffectual to work such notice.

An imperfection in such an instrument, to be fatal to its admissibility as evidence, must be in matter of substance and not of form, which is susceptible of amendment.

I am aware that there are substantial reasons for refusing amendments or extraneous evidence in support of such defective proof, and that such reasons are supported by high judicial authority.

In the case of State v. Green, 3 Gr. 90, the court said: “An affidavit when offered to be read in evidence, must appear upon the face of it to be what an affidavit ought to be, to entitle it to be read. It must appear to have been taken before the proper officer and in compliance with all legal ■ requirements. The court cannot stop to inquire into the competency of the officer or the place where it was taken.” In that very case, however, the court allowed other proof to establish the fact that surveyors of the highways had been duly sworn. When the objection to the imperfection of the original affidavits was presented, the proof by which the objection was sought to be overcome was at hand and offered, and was deemed sufficient to cure the defect.

In Westerfield v. Boded, 11 C. E. Gr. 359, it was held that an answer, to which was affixed an affidavit without the signature of the master to the jurat, could not be regarded as an answer. The question involved here was not only one of the sufficiency of proof resulting from an answer under oath, but one of pleading also. The bill required an answer under oath, and the court could not deal with it as an answer in the absence of the affidavit required.

In the case of Capner v. Flemington Mining Co., 2 Gr. Ch. 468, a bill was filed asking for an injunction, to which was attached an affidavit signed by the complainant, but without the signature of the master to the jurat. The court said: “Such an omission should not vitiate the injunction, if the bill was actually sworn to, as was the fact. It was an omission of the court, but one which could not affect the interests of the defendants.”

In Dinsmore v. Westcott, 10 C. E. Gr. 302, upon a bill filed to foreclose a mortgage, it was held: “A defect in the affidavit of mailing a copy of the notice to an absent defendant, in not showing that the place to which it was directed was the defendant’s post-office address, may be remedied by supplying the proof by way of amendment.”

In Den v. Applegate, 7 Halst. 322, the court said : “An affidavit of the service of a declaration which states that the declaration was served on the daughter of the tenant but does not show that such service was made on the premises in question is insufficient. Such an affidavit may be amended.”

In such case if an affidavit has in fact been properiy sworn to there can be no doubt but that perjury could be assigned thereupon for any willfully false statements. Upon this, however, a doubt was significantly expressed by the court in the case of State v. Browning, 3 Dutch. 535, 536. In the jurat the justice said that certain trustees were sworn or affirmed. I cannot but with the greatest respect submit that what the justice of the peace certified to in the jurat could not in any wise vary, mitigate or annul what was actually said by the affiants. Should it be made to appear upon indictment for perjury that one had actually been sworn and the others affirmed, or the contrary, and that their statements were willfully false, it would be impossible to escape conviction. This very rational view was taken in the case of Capner v. Flemington Mining Co., supra. The court said: “Perjury could have been assigned upon the affidavit if the facts were untrue.”

When the affidavit required by the statute is sufficient in substance and there is lack of form as to certification required by the statute, the court should not hesitate to allow such extraneous proof as would supply the deficiency where it does not appear that any injustice will be done, and especially where it is manifest that the rights of those which depend upon such affidavit will otherwise be absolutely lost. In the case of State v. Green, supra, it was remarked that the court could not stop to look into such matters. This court, in its desire to protect and enforce the rights and interests of every suitor, whether plaintiff or defendant, does in its discretion continue causes from time to time in order that it may be satisfied that in its determination it has not been guilty of violence. At the same time the court is ever watchful in discouraging all appearances of neglect or indifference upon the part of suitors or their counsel.


text:
    Anna R. McGrath v. Ambrose P. Vanaman.
    An agent who is authorized to sell standing timber has no implied authority to accept of a note of the purchaser, as part payment, made payable in three months to the order of the agent individually and in no manner disclosing his agency, and in such case the principal will be sustained in asking for a rescission of the contract.
    On hearing on bill and answer.
    Mr. Gilbert Collins, for the complainant.

      Mr. Henry 8. Alvord, for the defendant.
   Bird, V. C.

The complainant in this case entered into an agreement in writing with Hume, in and by which the former appointed the latter her agent, with power to sell and dispose of the timber (with certain exceptions enumerated) standing on a tract containing about eighteen thousand acres, at any time within the period fixed by the contract; he was authorized to cut timber in such quantities as he might deem expedient and sell the same.

At the time of entering into this agreement, by virtue of a previous agreement there was manufactured and unmanufactured stock on hand, which Hume, by force of the agreement which we are now considering, was required to sell and dispose of, and to pay certain amounts of the net profits to Mrs. McGrath. Hume agreed to keep

“accurate and correct accounts of all receipts on account of and from the profits in business upon said lands under this contract, and to render quarterly accounts of the same to the party of the first part, and to make such payments as shall be due to the party of the first part under the operation of this contract.”

By the agreement Hume was authorized to sell the said tract of land upon the terms mentioned in the said agreement, fixing the times within which and the prices per acre, adding these words, “all sales to be for cash,” and any contract or contracts with purchasers to be submitted to the party of the first part for signature, and the same not to become binding until so signed by her, then fixing the commissions which Hume should receive for the last-named sales; and by the tenth paragraph of said agreement (the above provisions and others each being in separate paragraphs) power was given to Hume in the following terms: .

The party of the first part gives the right to the party of the second part (Hume) and authorizes him to sell standing timber upon the said tract at the rate of not less than §2.50 per acre for pine and other timber, and not'less than §50 per acre for cedar, and the total sales not to exceed 1,500 acres in amount.”

Hume sold to Vanaman, the defendant, the timber standing on one hundred and forty acres, a large portion of which area was covered with only an inferior growth of what is called “ scrub ” timber, according to the testimony of no merchantable value. • There were at least seventy-seven acres of excellent pine timber. The price agreed to be paid was $500, $300 of which were paid in cash and $200 secured to be paid at three months by the note of Vanaman, given to the order of Hume individually.

This bill is filed for the purpose of rescinding this contract and restraining Vanaman from cutting and removing any of the said timber. Three principal grounds are alleged as reasons for these prayers — -first, that a credit was given for $200 without any authority for that purpose; second, that the price was grossly inadequate; and, third, that the power of attorney under which Hume acted was not recorded.

First, as to the sale upon credit. The general rule is that an agent who is authorized to sell without more can only sell for cash. Sm. Merc. Law 163; Mech. Ag. § 353; Woodward v. Jewell, 140 U. S. 247 ; Burks v. Hubbard, 69 Ala. 379; Payne v. Potter, 9 Iowa 549; Wiltshire v. Sims, 1 Campb. 258; Lump- kin v. Wilson, 5 Heisk. 555; School District v. Ætna Ins. Co., 62 Me. 330; Cummins v. Beaumont, 68 Ala. 204; Baldwin v. Merrill, 8 Humph. 132, 139.

The language of this agreement is such, when considered independently of the note which was taken, and which bears evidence of the credit, as to present a reasonable doubt as to the validity of this objection to the sale. It will be seen by reading, so much of the tenth clause of the agreement as is above quoted respecting the sale of real estate, that it was expressly provided thereby that “all of such sales should be for cash,” whereas the following clause, as will be seen, which authorized the sale of standing timber, makes no mention whatever either of Cash or credit. The fact that cash is expressly required in the former paragraph, and that no mention whatever is made of it in the latter, brings to the mind ánd gives emphasis to the familiar maxim “ expressio unius est exclusio alterius.” Broom Max. 414, *505; top, p. 418, *510.

In Hare v. Horton, 5 Barn. & Ad. 715, 721, the court said : “And the grant is of the said iron foundry, together with the said dwelling-houses, warehouses &c.; after which nothing is said of the fixtures belonging to the foundry, but the deed goes on, together with all grates, boilers, belts, and other fixtures in and about the said two dwelling-houses, and the brew-houses thereto belonging.’” Eor there are three houses mentioned, and a grant of fixtures refers only to those in two, can it be said that those in the third will pass ? The maxim “ expressio unius est exclusio alterius ” would apply. In this case the effort was made to include in the conveyance those articles which are commonly regarded as fixtures which were not named in the agreement, but which would have passed as fixtures had certain other articles which the law also regards as fixtures not been named. The court held that the articles not named were excluded from the conveyance because of the rule referred to. This very decisive case is not in harmony with the doctrine given by Parsons (2 Bars. Cont. 28) where he lays down the rule, saying :

“ If the parties expressly provided not anything different, but the very same thing which the law would have implied, now this provision may be regarded as made twice; by the parties and by the law. And as one of these is surplusage, that made by the parties is deemed to be so; and hence is derived another rule of construction, namely, that the expression of those things which the law implies works nothing.”

Notwithstanding this the learned author, in a note to the phrase just quoted, says, “This is in accordance with the maxim ‘ ex-pressio unius est exelusio alterius.’

The influence which is so generally if not universally given to the last-named maxim prompts me to hesitate 'in joining with the complainant in her efforts to rescind this contract simply upon the ground of want of authority in her agent to sell upon credit.

But there is another phase of the question arising out of the credit given which I find sufficient to justify the prayer of the complainant. The credit given was manifested by a' note for $200, given to the order of Hume without in any manner indicating his agency. The time of credit was three months. The taking of this note in the name of another person than the principal is fatal to the transaction. To show this it need only be stated that with the knowledge of Vanaman, the purchaser, it was thus placed within the power of Hume, the agent, to sell, assign and transfer this note to whomsoever he would, and thus put it out of the power of the complainant to recover of anyone but the agent, or in case of the agent’s death still holding the possession of the note, not only to postpone the collection of the amount due indefinitely but to the great risk of establishing its identity. This would certainly be so since Vanaman, the maker, would be justified in demanding the surrender of the note upon payment.

All will agree that this was an out-and-out conversion of the property of the complainant to the use of Hume, the agent, with the knowledge and by the active aid of Vanaman, the purchaser, for there is no pretence that Vanaman was ignorant of the agency of Hume.

Therefore I will advise that the contract be rescinded. Since the complainant has received part of the purchase-money, and the defendant, "Van am an, has cut and carried away parcel of the timber, there must be an accounting and the balance paid to the one in whose favor it appears to be.


text:
    The Princeton Savings Bank v. Alfred W. Martin.
    According to the unquestioned practice in this state, a mortgagee may proceed in equity against the maker of the bond secured by such mortgage for deficiency, at any time within sixteen years but not after, notwithstanding the lien of the mortgage given to secure such bond remains unaffected for twenty years.
    On demurrer to bill for deficiency.

      Mr. William M. Lanning, for the demurrant.

      Mr. JP. A. V. Van Doren and Mr. Garret D. W Vroom, contra.

   Bird, V. C.

On the 1st day of April, 1867, Augustus L. Martin and Alfred ~W. Martin made their joint and several bond for the sum of $1,800, payable in one year, and delivered the same to Augustus S. Case. To secure this bond they executed and delivered to Case a mortgage upon a tract of land owned by them as tenants in common. On April 1st, 1868, Augustus L. Martin sold and conveyed his interest in the mortgaged premises to his brother, Alfred W. Martin. .Subsequently .there were several conveyances of the fee, the last one being to one Charles S. Bradfield.

Case assigned the bond and mortgage to one Van Deventer, who assigned them to the complainant, the Princeton Savings Bank, on the 12th day of February, 1885. On the 25th day of February, 1892, the complainant filed a bill to foreclose the mortgage, without making Alfred W. Martin, this defendant, a party, and such proceedings were had that a sale was effected by virtue thereof.

The bill filed in this case is for the deficiency remaining after that sale. This bill shows that the amount of the decree was $2,020.50, besides $145.09 of costs. The premises sold for $400, the purchaser being the present complainant. After the payment of sheriff’s fees and the costs there remained $212.51 to be credited upon the decree.

The demurrant insists that the complainant has a .complete and adequate remedy at law. While that may be, the practice of proceeding by bill in equity for deficiency arising upon the sale of mortgaged premises has been so long recognized by courts of equity, and, so far as I know, never questioned in this state, that I do not feel at liberty in this case to say that the complainant has mistaken its forum. There is no single fact in this case to deprive the complainant of this method, or to relieve the defendant from answering in this court. As between the complainant and the defendant, if anyone be, he of all others is liable. It nowhere appears that the grantees or any of them assumed the payment of the money secured by this mortgage; consequently, the only person liable, if anyone be, on the bond in question, is the defendant. Pruden v. Williams, 11 C. E. Gr. 210, and cases cited.

But another objection by way of demurrer is assigned, i. e., that the debt is barred by the statute of limitations. It appears that the debt was evidenced by the bond of Augustus and Alfred Martin. It bore date April 1st, 1867, and was payable in one year. April 1st, 1868, Augustus conveyed his interest to Alfred, and on March 24th, 1869, Alfred conveyed his interest in the premises. There is nothing whatever to show that either of these obligors in any manner recognized or acknowledged his liability after the dates.last given. The only proof of the validity of the mortgage itself as a lien is the foreclosure, which is stated in the bill to have gone to a decree and a sale. The claim that because the amount found to be due, as expressed in the decree, was greatly below the amount that would have been due at that time if there had been no payments, raises the clear presumption that there must have been payments, cannot in any sense avail the complainant in this proceeding. The rule that allegations must be taken most strongly against the pleader, cannot be overcome by such an alleged presumption. Besides, in order that such presumption should prevail in this case as against this defendant, the court would be obliged to presume that, as the mortgage continued to be a lien upon the premises, the obligor would not make payments upon his bond after he had parted with his title to the premises given as security for such bond.

I think, if payments were made by any of the subsequent grantees, by which the lien of the mortgage was preserved as against the land, such payments would not bind the obligees on the bond. It is not shown that such grantees and obligees were under the slightest liability to each other. It is true that under the law as it has been declared in this state (Van Dike v. Van Dike, 3 Gr. 289), any acknowledgment of the liability upon such an instrument, either before the statute begins to run or afterwards, by one of two or more joint obligors, will not only bind the one making the acknowledgment, but also all others, so as to prevent the operation of the statute, which principle, however, seems to have been settled adversely in New York. Van Kuren v. Parmelee, 2 N. Y. 523.

But, as already intimated, there is no such binding relation between the grantees named in the bill of complaint and the makers of the bond in question as will put in operation any such principle. This view seems to have controlled the court in the case of Trustees of Old Alms House v. Smith, 52 Conn. 434.

Nor does the fact that the lien' of the-mortgage has been established by decree remove the bar of the statute as to the remedy for the debt. It seems that where statutes do not prevail to the contrary, it is held that the remedy for the debt may be barred while the lien of the mortgage continues to subsist. Jones Mort. §§ 1203, 1204; Waltermeir v. Westover, 14 N. Y. 16; Heyer v. Pruyn, 7 Paige 465; Jackson v. Sackett, 7 Wend. 94 ; Ball v. Wyeth, 8 Allen 275; 2 Wood Lim. Act. 545.

Erom these authorities it would seem to follow that if these obligors had been made parties to the bill to foreclose, and a decree for deficiency, if any, had been prayed for against them, it could not have been granted without proof that one of them at least had acknowledged of their obligation within sixteen years prior to the time of filing the bill, notwithstanding the complainant’s lien upon the premises, by virtue of its mortgage, was still binding.

In brief of counsel for complainant it is urged that the questions raised in this case should be presented by plea and not by demurrer. I think that if the defendant has mistaken his mode of relief the other side could only take advantage of it by notice of motion to strike out his demurrer. Submitting to a hearing as introduced by the adverse party ought to bind his antagonist.

I think the demurrer should be sustained, with costs.


text:
    In the matter of the application of the Mayor and Council of the Borough of Belmar, on the application of lands for the payment of taxes, v. Thomas Kennedy.
    1. The only authority given to the court of chancery by virtue of section 8 of the “Act providing for the collection of taxes” (Rev. Sup. p. 991), is to issue its writ of assistance to put the purchaser of lands sold for the non-payment of taxes, who comes with his deed of conveyance or certificate of title, into possession.
    2. Courts of law, and not of equity, are the proper tribunals for the consideration of irregular proceedings in the sale of lands for the payment of taxes.
    On petition for writ of assistance in the matter of sale of lands for payment of taxes.

      Mr. Halsted H. Wainright, for the petitioner.

      Mr. David J. Pancoast, contra.

   Bird, V. C.

This petition is filed under the statute, asking the aid of this court, by way of writ of assistance, in securing to the petitioner the possession of certain lands and real estate which were purchased by the petitioner upon a sale for unpaid taxes. The statute referred to is section 8 of the Supplement of the Revision (at p. 991). After directing what proceedings shall be taken against delinquent taxpayers, in order to effect the sale of their lands, and what steps the purchaser shall take in perfecting his title, the statute then provides as follows:

“Then and in that case the purchaser may take the same proceedings to gain possession of such lands and premises as purchasers under decrees of foreclosure and sale of mortgaged premises.”

It is not disputed but that under this provision the purchaser has authority to come into this court in order to gain possession of the lands purchased at such sale.

But the delinquent taxpayer raises numerous objections to the proceedings had by the borough authorities and the officer employed to make the sale, the sale itself and the attempted transfer of the title. It is insisted that these objections are so important or essential as to be fatal in any event to the validity of the claim of the petitioner. During the discussion, it appearing to me that' these objections deserved consideration, I suggested to the counsel for the delinquent taxpayer that the proper tribunal for determining them was the court of law, and that I would not dispose of this case for a period of time named, sufficiently long to enable him to avail himself of the aid of. that tribunal. It appears that no steps have been taken to settle the questions raised in the law courts.

Being of opinion that this court is without authority to review the proceedings of assessors and collectors and other officials authorized to impose and collect taxes and to enforce the payment thereof, I must refrain from considering whether the objections referred to are such as to justify me in refusing the aid asked for. Such questions have always been mooted and determined in the law courts. And the statute which authorizes the interference of this court only goes so far as to justify the application for a writ of assistance to put the purchaser into possession. • This is all that the court of equity can do. In doing this, the delinquent taxpayer is not deprived of any of his legal rights. I apprehend that he can proceed by certiorari as well after the defendant is put in possession as before. The purchaser takes possession at his peril. He can only defend upon a title declared to be good by a tribunal authorized to pass upon it. I only decide that, since the petitioner has such deed as justifies an application to this court, the relief prayed for should be granted.