text:
    Robert Sellick, appellant, v. Theresa F. Sellick, respondent.
    [Argued May term, 1925.
    Decided May 19th, 1925.]
    On appeal from a decree of the court of chancerjr advised by Vice-Chancellor Eoster, who delivered the following opinion orally:
    “I Avill dispose of this case now.
    “This is an action brought for divorce by Robert Sellick, as petitioner, against his wife, Theresa E. Sellick, the defendant.
    “The'case has occupied a day and a half. '■
    “The petition in the case was filed on the 1st of September, 1916, and charges that on the 5th day of December, 1911, the defendant deserted petitioner, and further charges that on the 27th or 29th of June, 1914, the defendant again deserted the petitioner and has willfully, continuously and obstinately continued this desertion to the present time.
    “The original answer filed in the cause ivas a mere denial. Eor some reason, not satisfactorily disclosed, the cause has been allowed to sleep for about seven years; it was revived about a year ago, and a supplemental ansAArer, together with a counter-claim, Avas then filed on behalf of the defendant, in which she repeated in the answer a denial of the charge of desertion on either or both of the dates named, and in her counter-claim, charges desertion on the same date, December 5th, 1911, and that this desertion has since been willful, obstinate and continuous.
    “The parties Avere married in 1901, they had both been married before. The petitioner had four children by his former marriage; the defendant has none now living by her former marriage. Two children were born of this marriage, one of whom now survives, a young lady about twenty, married herself.
    “The petitioner is an engineer and architect. He testifies that without any justifiable cause defendant deserted him on the 5th of December, 1911, and continued that desertion against his will, and. that on the 27th or 29th of June, 1914, he wrote her a letter urging her return, and that she refused to accept his invitation to return and make a home with him. Subsequently, in October and November, 1922, there was quite a voluminous correspondence between the parties in relation to the return of Mrs. Sellick to her home. Mr. Sellick states that in this correspondence are shown all the efforts that he made to have his wife return and live with him. It seems, according to the testimony, that at the time of his marriage Mr. Sellick was then working on a salary; that the f amity,as a result of his regular income, got along in a very happy, harmonious wajr for two or three j^ears; that after that he undertook to go into business for himself as an architect, with the result of an attending uncertain, indefinite income; that their manner of life continued from that time not to be as happy nor as harmonious, nor was the provision which he was able to make for his family as satisfactory as it had been when he was working on a salary; conditions went from bad to worse, and some time about the year 1903 or 1904, at the request or suggestion of one or both of them — it is not clear which, I am inclined to think they were both responsible for it — and without any apparent means in sight to pay for it, they undertook quite some improvements or alterations to their home, which was owned by Mr. Sellick, and these repairs or improvements were allowed to go on and drag along, with the result that for eight years, according to Mrs. Sellick’s statement, and for over a year, according to him, and for quite a period of time, according to the children, the house had been uncomfortable and was poorly equipped, and was badly supplied with food and provisions at times, and on occasions the family was without coal or any other means of heating the home; the gas had been cut off at times, and conditions'of a generally uncomfortable character prevailed there, and continued to prevail for a considerable length of time prior to the separation of the couple in December, 1911.
    “Apparently, the couple had a great deal of trouble from various causes. Petitioner claims that his work as an architect and engineer required him not only to be at his office in the daytime, but at night as well; that he worked as late as midnight, and sometimes later. He was at his home but very little of his time, except holidays and Sundays, and in the early morning before going to his office.
    “Mrs. Sellick had some doubt, in the latter part of their association, as to whether his work and labors required all this midnight activity on his part, and about two or three months before they separated, that is about September or August, 1911, from information which she received from one of Mr. Sellick’s darrghters, or from some other source, she searched the pockets of his clothing, and she found there a poem, composed admittedly by him, and presumably either addressed or dedicated to a young lady, Miss Snyder, who was then in his employ. In this poem there is more or less ridicule or fun made about his wife, and this was said to have been done because the wife objected to the presence of Miss Snyder in his office, or her continued employment by Mr. Sellick, and, according to Mrs. Sellick, she had become so incensed over this emplojonent that a few months before the separation she went to the office of Mr. Sellick and drove Miss Snyder therefrom by the use of an umbrella, about the same time that the poem was found and one or more letters were found addressed — I am not clear — I don’t think the testimony is — whether the letter is addressed by Mr. Sellick to a married woman, or was addressed to Mr. Sellick from a married woman. Mrs. Sellick informed her husband of finding these papers, accused him of having improper relations with married women and with this young girl in his employ, with the result that one of their frequent quarrels occurred. They seemed to have the habit of quarreling frequently, apparently, for very little or no cause. Conditions did not improve because Mr. Sellick refused to give any explanation of the poem or the letters, and stated that he was not going to be dictated to, and would select his friends and clients, and continued relations that he had already made. This culminated finally in the separation of the couple on the 5th of December following.
    “Mrs. Selliek went to her brother and lived in Brooklyn for a while, and in Elizabeth for some time, and finally went back to Brooklyn. About three months after her departure she took possession of her child, Evelyn, and has since then remained away and has not lived with Mr. Selliek.
    “Petitioner states that defendant left without any cause— I will come to that when I consider her branch of the case— and states that he had always treated her kindly, affectionately and considerately, although she and her witnesses state that he treated her with a total absence of affection and the utmost indifference, and barely spoke to her and gave her very little consideration. He states that the letters which he sent her to induce her to return, one of which I think is fourteen typewritten pages long, and the pages I should judge would be about three time the size of an ordinary sheet of legal paper, so that approximately one of the letters, in which he says is shown his efforts to have her return to him, would cover about forty-five or fifty typewritten pages of ordinary letter paper; the other letters cover three or four pages of these long sheets, typewritten, and these are the evidence of his efforts to have her return. The entire correspondence in relation to her return is in evidence, and from it is shown that as a condition for his acceptance of her return to live with him as his wife, petitioner demanded that the defendant should deny or withdraw or retract any and all statements, charges or accusations that she had made against either of the women that I have mentioned or referred to. I think this condition is imposed in every one of the letters he sent her, and it occurs sometimes repeatedly in some of them. It seems that shortly after -the separation, in 1911, Mr. Smith, a member of the church to which Mr. Selliek belonged, was told by Mr. Selliek, when he attempted to effect a reconciliation, that Mr. Selliek would receive his wife back into the home, and give her a home, but he would never receive her back as his wife. It also appears that he repeated that same statement to others, and it further appears that the parties met with counsel some time after the letter óf June, 1914, was sent, soliciting her return, and in which the conditions already mentioned and referred to were embodied, and Mrs. Selliek then agreed to return the following Friday to her home, but she states that she learned in the meantime that Mr. Selliek had informed people, who told her, that he had only made the request to have her return, not because of a desire, but merely to get around the law. When that information came to her, she did not go to the home. It is admitted that when Jrrdge Sweeney served the' papers in this case, back in 1916, upon the defendant, who was then residing in Brooklyn, she told him she would prefer that Mr. Selliek would get the divorce rather than get one herself.
    “Apparently, both parties contemplated a divorce for some time. Mr. Selliek upon the stand yesterday stated that in all the efforts he had made to have his wife return to him he had attached thereto certain conditions, namely, that if Sirs. Selliek was to return to his home as his wife, and live there with him, she would have to retract or deny her charges about these women that I have referred to, and in addition that she would have to lead a moral life, and be a chaste woman, although he admits that he never suspected her of being in any way immoral or unchaste, or doubted her fidelity to him, nor had he'any grounds for it. He said she was reluctant to have intercourse; she denies it. He does not claim that she denied such rights to him, he says, in effect, that from December 5th, 1911, when they separated, until the present time, he had these conditions in mind as conditions precedent for her returning to his home as his wife,' and that unless she complied he had no desire that she should return.
    “That disposes of the element of obstinacy in his case. This woman did not remain away from him against his mil. He was perfectly willing that she should remain away from him unless she complied with his commands or conditions, which she finally agreed to do, in one of the letters — a letter which I think was written in March, 1918, and which he answered about three years later, in February, 1921. In this letter she stated that she would be willing to retract any accusation or any statement she had made against these women, and he stated that when he read that he became so disgusted with her that he didn’t reply to her letter for nearly three years.
    “There is absolutely no evidence showing good faith in his efforts to have her return and be reconciled to him, and I am absolutely convinced he never desired her to return.
    “He refers to his religion and says his religious scruples caused him to have a sufficient regard for her, so that he did not press the divorce suit all these j^ears. The children and friends have attempted to bring about a reconciliation. The daughter Evelyn sa}rs that she made an appointment with her father to receive the mother in order to talk over matters and be reconciled; that he agreed to- meet the mother, and when the daughter prevailed and brought the mother to the home— the time is a little uncertain — quite uncertain — she found that the father, instead of meeting the mother as agreed upon, had gone to church; the mother and daughter had to wait at the home over three hours for his return. When he did return he refused to shake hands with his wife, and he greeted her with the remark, “What for is this; I see you are back,” or some such expression. When he refused to take her hand and receive her in any way she left the home and has never been in it again. Possibly this may have been the same occasion, or possibly on another, when she called and asked him to go to church with her on Sunday and he refused to do it.
    “I do not find from the proofs on his side of the case that the desertion was willful on her part, or that it was obstinate, in the sense of being against his will. There has been, of course, a continuous separation between the parties for more than the statutory period, but that single element alone is not sufficient to entitle him to a decree. The two other essential elements required by law, willfulness and obstinacy, being lacking in the case, require me to deny his petition for divorce.
    “Taking up her counter-claim, I find she had in the latter years of their relation a rather unfortunate aad unhappy home. In some measure, possibly, she was responsible; if I believe her version, he was wholly responsible for the conditions. He does not deny the existence of any of the conditions that she complains of, and, even if he did, she is corroborated by his children and her own, and by the testimony of disinterested witnesses, visitors to the home, who all agree that at times there was not sufficient food; they all agree that in cold weather there was not sufficient fuel to make the home comfortable, several of thém agree, or two or three at least, that it was his practice in the morning to throw a twenty-five-cent piece on the table by his wife’s plate, and with this she was expected to furnish the food and provisions for the family during that particular day. That is testified to by his son and by his daughter and by some of his friends, by one at least, as well as by Mrs. Selliek.
    “These conditions, lack of support and lack of comfort in the home, constant quarreling over financial and other matters, and the finding of the letters and the poem, and his refusal to give any satisfactory explanation, apparently affected her physically, and I am inclined to think that that the mental condition of Mrs. Sellick — she is a woman of apparently a very nervous temperament — the conditions mentioned aggravated her nervousness and affected and impaired her health, so much so that she consulted her brother, and on his advice she finally returned to her home and removed her effects. She had been working to support the family; she had baked bread; she had gone out to work, and her income was used for the support of the family to supplement that of the petitioner. I think the conditions at the home there and her suspicions of Mr. Selliclc’s relations with women and his refusal to give her what she regarded as a satisfactory explanation, although they may be, and probably were, wholly harmless, so worked upon her mind that she left him.

      “I think after she left him she regretted it, and she showed a disposition to return to her home. That is quite apparent; she wrote him in various letters that she was willing to return and have everything in the past forgotten, and not to be referred to, as he had exacted, and after she had accepted his terms, by letter of March, 1,918, he waited three years before giving her an answer, and then, when he gave her one, it was again to impose the same terms and conditions that he had in his former communications.

      “I find she was justified in leaving him when she did; I find she was willing to return, and did return, to him, and would have remained with him if he had received her properly. No real and sincere effort to effect a reconciliation or for her return was ever made by him, and I am satisfied he did not want her to return and live with him as his wife.
    “The proofs fully warrant that 1 should advise a decree in favor of the defendant on her counter-claim for a divorce on the ground of desertion. You may draw your order.
    “On the question of permanent alimony, I will hear you at some other time, on notice.”

      Mr. Algernon T. Sweeney, for the appellant.

      Mr. Paula Lacldy, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Foster.

For affirmance — The Chief-Justice, Trenchard, Minturh, Kalirch, Black, Katzembaok, Campbell, Lloyd, White, (tArd\tf,r, Vam Btjskiric, McGlexxon, Kays, JJ. 13.

For reversal — None.


source: Caselaw Access Project

author: Pee Curiam.

license: Public Domain

text:
    William A. Woodbury, appellant, v. C. Palmer Woodbury et al., respondents.
    [Decided October 19th, 1925.]
    On appeal from a decree of the court of chancery advised by Yice-Chancellor Church, who delivered the following opinion orally:
    “The only question that I have to decide now is to whom the shares of the Distributors Company’s stock belong. They evidently were turned over by Mr. William A. Woodbury to C. Palmer Woodbury, and they remained in Mr. Palmer Woodbury’s safe until some time, when he hypothecated them to an innocent third party for value for a loan. On the one hand, there is merely the statement of Mr. William Wood-bury that he deposited them for safekeeping in Mr. Palmer Woodburjr’s safe deposit box. On the other hand, it was Mr. Palmer Woodbury who says that they were given as part of the transaction involving the one thousand shares of the Woodbury Company. This is corroborated, perhaps, not definitely, but in some measure, by the exhibits in Mr. William A. Woodbury’s handwriting that have been received in evidence, but, especially, we have the testimony of Mr. Chittenden, who is, and has been for years, a prominent member of the Yew York bar, and Avhose veracity is beyond question. He says that Mr. William A. Woodbury admitted to him that these distributors’ shares were part of the Wood-bury Company transaction. I think that the mere statement of Mr. William A. Woodbury is not sufficient, in the face of the other evidence, to justify me in requiring that this stock should be returned to Mr. William A. Woodbury as his property, and I will therefore deny that prayer. If counsel will prepare a decree in accordance with the findings that have been made this morning, I will advise it.”

      Mr. Absalom P. Bachman, for the appellant.

      Messrs. Cohn £ Cohn, for the respondents.
   Pee Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Church.

For affirmance — The Chief-Justice, Trenchakd, Parker, Minturn, Katjsch, Black, Katzenbaoh, Campbell, Lloyd, Gardner, Van Buskieic, McGlennon, Kays, JJ. 13.

For reversal — White, J. 1.


author: Per Curiam.

text:
    Harvey L. Wyatt et al., executors, &c., appellants, v. Mildred Bergen, defendant.
    [Argued May term, 1925.
    Decided October 10th, 1925.]
    On appeal from the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported in 98 N. J. Eq. 502.

      Messrs. Melosh, Morlen.£ Melosh, for the appellants.

      Mr. Benjamin Gross, for the respondent.
   Per Curiam.

The complainants, executors of the estate of Anna E. Simpson, seek by their bill to compel the specific performance of a contract for the sale of lands made by their testatrix, as vendor, with the defendant, as vendee, Mrs. Simpson having died prior to the date fixed for the performance of the contract. The case was referred to Vice-Chancellor Griffin for hearing and determination, and, after the hearing had been completed, he advised, a decree dismissing the bill. The executors have appealed.

We concur in the result reached by the vice-chancellor on the proofs submitted, and affirm the decree under review upon the opinion filed by him in the court of chancery.

The question whether the executors of a deceased landowner are proper parties to enforce a contract for the sale of land which, on the death of the testatrix, has descended either to her devisees or to her heirs-at-law was not mooted before the vice-chancellor, and, consequently, was not considered by him. Eor this reason we express no view as to the status of the complainants.

For affirmance — The Chief-Justice, Trekchard, Parker, Minturk, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardker, Vah Buskirk, McGlenhok, Kays, JJ. 14.

For reversal — None.


author: Walker, Chancellor.

text:
    Harry H. Weinberger et al., complainants, v. Max Goldstein et al., defendants. Sidney Lobsenz, complainant, v. Max Goldstein et al., defendants.
    [Filed March 18th, 1926.]

      1. 'Persons claiming, as holders of filed mechanics’ liens, rights in mortgaged premises superior to complainant in foreclosure suit, where such liens were not and could not have been filed until after decree pro confesso, and application being made promptly after filing of the liens, will be admitted as parties to the foreclosure suit and given leave to litigate, as against complainant and all other parties, their claims to the proceeds of sale of the mortgaged premises.
    2. At the hearing on such an application the court will not undertake a complete trial of petitioner’s alleged rights; the issue is simply as to whether or not the petitioners are asserting tona fide claims which they ought equitably to be permitted to have tried in the cause.
    3. The Chancery act of 1915 provides that the chancellor shall by rules regulate and determine all questions as to parties, pleadings and procedure in chancery suits; such rules will therefore prevail over inconsistent provisions of the Chancery act of 1902.
    On bill, &c. On petitions to be admitted as parties defendant, &c.

      Mr. Wilbur A. Heisley, for the petitioners.

      Mr. Merritt Lane, for the mortgagees, Weinberger et al., contra.

   Walker, Chancellor.

May 8th, 1924, complainants filed bill to foreclose a mortgage of $80,000 given by defendant Goldstein (then the owner of the mortgaged premises) to Weinberger (who later assigned a part interest to his co-complainant), dated July 19th, 1923, bringing in as defendant Samuel SlafE, holding a $35,000 mortgage (one month prior in date but subordinated to complainants’ mortgagee); Shelkowitz, a subsequent lessee; Superior Finance Company, holder of a subsequent $16,000 mortgage; Spindel, holder of a subsequent $5,000 mortgage; Samuel SlafE and Samuel Eichenbaum, as subsequent grantees under deed from Goldstein alleged do be only by way of security, and Goldstein and wife, as the alleged real owners of the equity of redemption; also Paterson Glass Company and Samuel Zaentz, mechanics’ lien claimants.

After decree pro confesso and reference, a master’s hearing was held October 15th, 1924, and report was filed October 20th, 1924, that there was due to complainants $73,-196.30; to Slaff, $37,776.67; to Superior Finance Company, $16,720; to Spindel, $5,276.67; to Zaentz, $276.67.

Nothing further has since been done in this cause except the filing of petitions of the parties applying to come in as defendants, and the interim proceedings on such petitions; this was because this Weinberger suit was, from a practical, if not technical, standpoint, superseded by a foreclosure suit commenced June 20th, .1924, by Sidney Lobsenz, the holder of a mortgage of $30,000 comprising the same premises, and prior in lien to all of the encumbrances involved in the Weinberger suit. All the parties in the Weinberger suit (and one or two others) were brought in as defendants in the Lobsenz suit. Decree pro confesso was taken against all, and, on reference to a master, hearing was held September 9th, 1924, and a report filed October 3d, 1924, that there was due to Lobsenz $30,825.84; to Weinberger and Hertstein, $73,-677.75; to Slaff, $37,660; to Superior Finance Company, $16,666.66. On this report final decree was entered February 16th, 1925. Prior to that date the present applying lien claimants had petitioned to be made parties, and for leave to file answers and counter-claims attacking the amounts due on, and priority of, the Weinberger, Slaff and Superior Finance Company mortgages. The final decree tentatively reserved to them such rights, if any, as they might prove to have. The fieri facias directed that payment be made to Lobsenz for his mortgage; also by consent to his wife some $20,000 for the amount due on a mortgage held by her antedating all the others, and also to Weinberger, Slaff and Superior Finance Company on their giving bond of $40,000 conditioned to pay the present applying lien claimants such moneys, if any, as might be directed by this court. The bond was given; the sale was had, and Slaff became the purchaser. The proceeds of sale were not quite sufficient to pay Slaff in full, and, of course, not the Superior Finance Company.

The application of the lien claimants is based upon the allegation that they furnished labor and materials in the erection of a building on a portion of the mortgaged premises; that they commenced furnishing such labor and materials before the date of the Weinberger mortgage; that they had not completed the furnishing of such labor and materials until just prior to the filing of their lien claims; that they filed their lien claims for unpaid balances due them the last of October, 1924, and then promptly applied to be admitted as parties to this suit.

Weinberger and Hartstein and Slafi; resist the application; and secondly, insist that if the claimants be admitted they must be limited as to the defenses and claims which they may set up.

A little simplification may help in the solution of the question. At the time the present application was made the situation was, essentially, this: A bill to foreclose by a first mortgagee (Weinberger) against a second mortgagee, a third mortgagee and the owner; decree pro confesso; master’s report adjudicating the rights accordingly; application by lien claimants to become parties to the suit and to litigate their claim to the proceeds of sale against the first, second and third mortgagees and the owner; the claim of the lien claimants being that they furnished labor and materials for the construction of a building on lands comprised in the mortgage, under contracts made (and work commenced) prior to the giving of the first mortgage, which contracts were not completed by them until after the decree pro coivfesso; and that immediately upon completing their contracts they had filed lien claims under the statute for the moneys due them and promptly applied to be admitted in the cause, and that moneys for which the mortgages purport to be security were not used to pay for labor and materials in the construction of the building.

Assuming the facts as to the lien claims to be as above set forth, it' seems clear that the lien claimants are entitled to be admitted as parties ¿nd given an opportunity to establish their claims, for their rights or liens would he superior to those of complainant first mortgagee and all other parties. To deny the application might result in depriving them of the superior right given them by the Mechanics’ Lien act.

If they did not come into this suit could they enforce their lien claims against the purchaser at the foreclosure sale ? If they could not, it would he obviously unjust to deny them admission, and, even if they could, it would be better for all concerned to admit them. The purchaser at forclosure sale might well know nothing of the lien claims, and bid a price which would not take them into account. The claims might be invalid, but in a subsequent suit by them against the purchaser the latter would find it difficult to procure the evidence to prove them invalid.

That these lien claimants have a right (unless forfeited or lost by them in some way) to litigate their claims to the proceeds of sale as against all parties to these suits (except Eobsenz) there can be no doubt. Stiles v. Galbreath, 69 N. J. Eq. 222; affirmed, 71 N. J. Eq. 299. The present case is even stronger than that one, for there, apparently, the lien claimants had liens which could have been, but were not, recorded at the time of the filing of the foreclosure bill, while here (prima facie) the lien claims could not have been filed until just before the present application was made. I think it is also quite apparent from that decision (see 69 N. J. Eq. 233) and section 58 of the Chancery act that these claimants would have the right to- be admitted to this suit for the purpose of such litigation of their claims, even if their lien claims had been recordable at the time of the filing of the bill; so much the more must they have that right when their claims could not have been filed until after the foreclosure bill.

It is contended that, under sections 29 and 30 of the Chancery act, the claimants, if admitted, are precluded from asserting claims adverse to the complainants. Not so. Section 30 provides only that decrees already made shall not, ipso facto, be opened or set aside by the subsequent admission of a party; it does not prevent the court from opening or setting aside such decrees by special order for the benefit of the admitted party, where. such a course is requisite or •equitable.

The provision in section 29, that’ the admitted party shall be bound by all orders and proceedings in the cause against the party whose interest he has acquired, applies only where that interest was acquired after suit was commenced. The lien claimants acquired their interest from the owner, but they acquired that interest in inchoate form, prior to the foreclosure bill, to wit, when the owner contracted with them to do the work and furnish the materials. The filing of the lien claim was not the transfer of interest from the owner, but the perfecting of his inchoate lien. I have no hesitation in holding that section 29 does not mean that a lien claimant, admitted under such circumstances as those now being considered, must be so bound by the prior proceedings and orders as to prevent his being able to litigate his claim to rights in the proceeds of sale superior to those of the complainant. But even if I took a contrary view on this point, section 29 would be no barrier, in view of sections 3, 11 and 13 of the Chancery act of 1915, and the present chancery rules hereinafter referred to.

In Riverside Building and Loan Association v. Bishop, 98 N. J. Eq. 508, it was held by Yice-Chancellor Buchanan that one who, pending foreclosure suit, recovers judgment against the mortgagor, is entitled to be admitted as a party even after final decree, in order that he may have an opportunity to have determined his interest and priority as against the other defendants. The petitioning party there claimed to have acquired priority over senior judgment creditors because he had levied and they had not. In the present instance the application simply goes one step further to admit petitioner to litigate his claim of rights superior to those of complainant. The difference is not one of principle, but is a question merely of convenience and orderly prosecution of suits. If a trustee in bankruptcy of a mortgagor, appointed after decree pro confesso (or even final decree) in a foreclosure suit,, applied for admission and for leave to file counter-claim to set up that complainants’ mortgage was in fraud of creditors, is there any good reason why he should not be permitted to do so? If denied admission, he would assuredly have the right to file an original bill, and, undoubtedly, on his application the proceeds of sale would be impounded in the foreclosure suit pending the determination of his separate bill. So, in the present instance, the lien claimants have a right to have their claims as against the complainant Weinberger litigated in some suit, and since it may be done in this suit, conveniently and without prejudice to other parties, it should be done here.

Counsel have referred to a number of reported cases, prior to 1915, as authority for the denial of this application, which, however, are not now controlling in view of the Chancery act of 1915. By section 3 of the act it is provided that the chancellor, by rules, may regulate and determine all questions relating to the subject of parties to all suits and proceedings in chancery, and all pleadings and proceedings in such suits. Chancery rules 6, 13, paragraphs 3, 23, 24 and 28 (all of which had their origin in the Chancery act of 1915, appendix) afford ample authority for the conclusion- herein reached.

It is said, however, that the petitioners have lost their right to become parties for several reasons — first, because by agreement among themselves and Slaff (the mortgagee) and Gold-stein (the owner), Goldstein conveyed the property to Slaff and Eiehenbaum as trustees, and the present petitioners assigned, or purported to assign, to the same trustees, December 4th, 1923, all their right, claim or interest as inchoate mechanic lien holders, in order to extinguish all such lien claims, so that the trustees might manage the property for the interests of all parties to that agreement, and mortgage or sell it to raise money to pay all the claims. The agreement, however, expressly provides, in case of breach of agreement by the trustees, the right to file lien claims should revive in the lien claimants. There are disputed questions of fact as to whether ox not the trustees did breach the agreement in several instances. It does not seem that the agreement should necessarily prejudice them so far as concerns the Weinberger-Hartstein mortgage, since it appears that it was not intended to be an irrevocable extinguishment of the lien claims under all circumstances. Moreover, Weinberger and Hartstein were no parties to the agreement; it was in nowise intended for their benefit; nor is there any showing of facts to raise an estoppel in favor of Weinberger and Hartstein because of the agreement. Nor should it necessarily prejudice them so far as the Slaff mortgage is concerned, for Slaff was one of the trustees, and he cannot be permitted to take a position contrary to the interests of his cesiuis que trustent, which is contrary to his express agreement in the trust instrument.

It is contended that there was no breach of the agreement so as to revive the lien claims. The claimants say there were a number of such breaches. There are thus disputed questions of fact on these issues under the affidavits and depositions before the court on this motion. Those issues, however, are fairly in dispute, and it is not the function of the court to determine them on this motion. The hearing on this motion is not intended to be an actual trial of the applicants’ whole case. All that the court is required to do, all that it should do, is to satisfy itself that the petitioners have a bona fide claim of, or to such an interest as entitles them to be made parties to the suit, that they are asserting bona fide a claim which they ought equitably to be permitted to have tried out. This was the law under the old practice (Conrad v. Mullison, 24 N. J. Eq. 65 (at p. 68); it is equally true under the present practice. Boehm v. Rieder, 96 N. J. Eq. 167 (at pp. 171, 172); affirmed, 98 N. J. Eq. 688.

It is further contended that, by virtue of this trust agreement, Slaff and Eichenbaum, as trustees holding the lien claims, legally represented the lien claimants in the foreclosure suit; that the latter were thereby in legal contemplation actually brought into court in the persons of Slaff and Eichenbaum, and, hence, are bound by the decree pro confesso against Slaff and Eichenbaum.

It does not seem to me that this contention is sound, because, for one reason, on the showing made by the claimants, their right to file liens did not accrue until after the decree pro confesso. Suppose they had made no attempted assignment, and suppose they had held mortgages entirely dissodated from their lien daims and had been made parties defendant as such mortgagees, could their application now, having become lienholders of record, to set up claims by-virtue of such mechanics’ liens, be denied on the ground that a prior decree pro confesso against them as mortgagees also barred them on lien claims which they could not then have set up because not then existent? I think not. A decree is res adjudicata it is true, not only on matters set up in the pleadings, but also on matters not set up which could have been set up, but not on matters which could not have been set up.

It is also contended that it appears from the affidavits and depositions that these lien claimants filed their lien claims fraudulently. There seems ground for grave suspicion in this behalf, but I think it is not so clear as to require denial of their application to be heard on a plenary trial.

They will be given leave to be admitted as parties defendant in both suits, and to file answers and counter-claims, apt and sufficient to put in issue between them and all parties to the suits except Lobsenz, their claims to so much of the net proceeds of the sale (of that portion of the mortgaged premises to which their lien claims prima facie attached) as remained after payment of Lobsenz and his wife. The adverse parties may set up in their counter-pleadings any and all facts upon which they rely to establish as against the lien claimants’ loss by the latter of rights or defenses through waiver, extinguishment, laches, estoppel or fraud of any kind.

I am inclined to think it may be advisable to consolidate the two suits. The form of order may be settled on notice. Costs will abide the result on final hearing.


author: Leaming, V. C.

text:
    F. Bedell Wills et al., complainants, v. N. Ross James et al., defendants.
    [Submitted January 13th, 1926.
    Determined January 23d, 1926.]
    Under the provisions of the “Municipal Mechanics’ Lien law, Revision of 1918” (P. L. 1918 p. 1041; 1 Gum. Supp. Corop. Stat. p. 1859), a lien may be maintained against money in the possession of a'municipality and due from the municipality to a contractor, by one who has supplied labor or materials to a subcontractor, even though it is made to appear that at the time the claim of lien was filed the contractor had paid the subcontractor in full.
    On final hearing on bill, answer, replication and proofs, in foreclosure of liens under the Municipal Mechanics’ Lien law, Revision of 1918.

      Mr. Furman A. D.eMaris, Jr., for the complainants.

      Mr. Oscar B. Bedrow, for the defendant county of Gloucester.
   Leaming, V. C.

The single question for determination herein is whether under the provisions of our Municipal Mechanics’ Lien law (Revision of 1918) a lien may be maintained against money in the possession of a municipality and due from the municipality to a contractor by one who has supplied labpr or ¡materials to a subcontractor, when it is made to appear that at the time of the claim of lien was filed the contractor had paid the subcontractor in full.

Under the old act (P. L. 1892 p. 869) this inquiry was answered in the negative in Garrison v. Borio, 61 N. J. Eq. 236. It was there determined that while a lien on the fund in the possession of the municipality could be maintained for labor or materials supplied to a subcontractor, the fifth section of the act limited such lien to the amount due from the contractor to the subcontractor at the time the claim of lien should be filed, and thus spared the contractor the burden of twice paying for the same labor or materials. That section of the old act was as follows:

“That the lien shall attach from the time of filing thereof to the extent of the liability of the contractor for the claim preferred upon any funds which may be due or to grow due to- said contractor from said city, town, township or other municipality under the contract against which the lien is filed.”

This apparent limitation of the lien “to the extent of the liability of the contractor” was deemed operative to exonerate the fund in the possession of the municipality from a claim of lien for labor or materials supplied to a subcontractor in case the contractor had paid his subcontractor in full, and to limit the amount of such lien to the amount due from the contractor to the subcontractor.

Garrison v. Borio was subsequently followed in the following cases under the old act: Wilson v. Dietrich (New Jersey Chancery), 59 Atl. Rep. 251; Herman & Grace v. Freeholders, 71 N. J. Eq. 541; affirmed, 73 N. J. Eq. 415; Meurer v. Kilgus, 77 N. J. Eq. 175.

In the revised act of 1918 (1 Cum. Supp. Comp. Stat. p. 1859) the provisions of the first and second sections of the act remove any doubt that theretofore may have existed as to whether a subcontractor could maintain a lien and also as to whether a lien could be maintained by laborers and materialmen under a subcontractor; and the fifth section of the act, which took the place of the section of the same number of the old act, was made to read as follows:

“The Hen shall attach from the time of the filing thereof to the extent of the liability of the contractor or subcontractor, as the case may be, for the claim preferred upon any funds which may -be due or to grow due to the said contractor from the municipality under the contract against which the lien is filed * * *.”

Accordingly, it seems clear that in so far as the fifth section of the old act may have been thought to limit the lien for .labor or material supplied to a subcontractor on the funds in the possession of the municipality to the amount due from the contractor to his subcontractor, that limitation now is removed by the corresponding section of the later act. Indeed, the specific legislative declaration of the new section is that the lien (which clearly includes a lien under a subcontractor) shall attach from the time of the filing thereof to the extent of the liability of the subcontractor. Language can scarcely be plainer; and in view of the terms of the fifth section of the old act and the force subsequently attributed to it by judicial construction and the terms adopted for the corresponding section of the new act, it seems impossible to escape the conclusion that the new act was intended to subject the funds in the possession of a municipality to a lien for labor and materials supplied to a subcontractor, irrespective of the amount due from the contractor to such subcontractor, unless some other provision of the act should be found to disclose a contrary intent.

The only provision of the act which might be thought to have that effect is a proviso contained in the tenth section of the revised act.

By the tenth section of the revised act the court is specifically directed to ascertain the amount due from the municipality to the contractor and from the contractor or subcontractor (the corresponding section of the old act did not include the words “or subcontractor”) to the respective claimants, with no suggestion that the amount due from the contractor to his subcontractor be ascertained, except the appropriate provision that the claim of a subcontractor shall be chargeable with the amount paid to claimants under him. The court is then directed to make a decree directing the ¡municipality “out of the moneys due from it to the contractor, to pay over to the several claimants the sums found due to them respectively,” and if the amount in the possession .of the municipality be found insufficient, then distribution shall be ordered made ratably, without regard to priority in filing claims. Then follows a provision relating to claims of laborers, which includes the proviso already referred to as a possible indication of legislative intent that claims under a subcontractor can only be enforced to the extent of the amount due from the contractor to such subcontractor.

That provision is as follows:

“Provided, however, that laborers shall have a lien [prior?] to others upon filing notices under this act at any time before payments are due and made, and the lien of any laborer filed under this act shall have priority over any assignment by a contractor or subcontractor to any third person of any money due to such contractor or subcontractor for any labor or materials furnished for any public improvements referred to in this act, notwithstanding the assignment may have been made prior to the filing of the notice by the laborer; provided, such moneys shall not have been paid to the assignee prior to the time of the filing of the notice.”

Touching the force of that part of the tenth section above quoted, it will be observed that as to assignments made by a contractor to a third person such assignments, if paid, necessarily would be paid by the municipality, and the proviso, would have no persuasive force of the nature hereinafter suggested. But assignments made to a third person by a subcontractor of money due to him from his contractor might be paid either by the contractor or by the municipality with the contractors sanction. If the former is to be deemed contemplated, then, support appears to be given to the notion that a legislative intent is disclosed to the effect that a lien under a subcontractor can only attach in any event for the amount due from a contractor to his subcontractor, since it does not seem that a payment made by a contractor to an assignee of his subcontractor should be given a greater force than a payment directly made by a contractor to his subcontractor.

I am impressed that the legislative intent above suggested cannot be said to be adequately disclosed. To.give that force to this proviso not only is to wholly nullify the specific provisions of the act already referred to which provide to the contrary, but is to attribute to the proviso by indirection a force beyond its terms and beyond any inference necessarily flowing from its provisions. It will be recalled that under the old act assignments by a contractor were held to have priority over liens filed subsequent to the dates of such assignments. Cope v. Walton Co., 77 N. J. Eq. 512; United States Fidelity and Guar. Co. v. Newark, 76 N. J. Eq. 230. The proviso protects labor claims against such outstanding assignments, and to attribute that general intent to the proviso is to harmonize it with the entire act.

The sixth section of the revised act contains a similar provision as to claims of laborers and materialmen, but that section relates only to liens filed under the old act.

A decree will be advised in accordance with the views herein expressed.


text:
    Harvey K. Partridge, complainant, v. William H. Cummings and George S. Cummings, trading as Cummings Brothers, and Seagate Beach Company, defendants.
    [Submitted December 22d, 1925.
    Determined January 11th, 1926.]
    1. A parol contract of joint adventure for speculation in real estate in which one party engages to acquire in his own-name a contract of purchase of certain land and to hold the contract of purchase and to cause operations under it in equal interest with the other party who advanced no money — Held, to be within the fifth section of our statute of frauds, which provides that no action shall be brought upon a contract concerning an interest in land unless the contract shall be in writing- signed by the party to be charged, as well as within the third section of our statute of frauds, which requires that express trusts in land shall be manifested and proved by writing.
    2. Equitable as well as legal interests in land — Held, to be embraced in the statute of frauds.
    3. The parol contract here in question cannot be classed as a contract for profits in real estate as distinguished from a contract for an interest in real estate.
    On final hearing on bill, answers, replications and proofs.

      The primary inquiry herein is whether our statute of frauds is a bar to the relief sought by the bill.
    The foundation of this suit is a parol agreement made between complainant and William H. Cummings and George S. Cummings, partners, trading as Cummings Brothers, to the effect that if the Cummings Brothers succeeded in procuring from the Avalon Company a contract in which that company would agree to convey to Cummings Brothers certain real estate consisting of building lots the Cummings Brothers would associate complainant with them, in equal interests of one-third for each of the three, in a proposed enterprise of acquiring title to the lots and selling them ,at a profit. The contemplated enterprise, as between Cummings Brothers and complainant, was for the Cummings Brothers to procure from the Avalon Company a long-term contract which would require no immediate payment of money, but under which the Cummings Brothers would be privileged to improve the lots and then sell lots so improved and pay the Avalon Company for the lots, as they were sold, the amounts specified in the schedule of prices forming a part of the Avalon Company contract. As between Cummings Brothers and complainant the proposed plan of practical operations was for the three to form a corporation which was to operate under the Avalon Company contract in the manner above stated, and each of the Cummings and complainant were to have one-third of the capital stock of that corporation.
    The contract between the Avalon Company and Cummings Brothers was thereafter executed under date of March 11th, 1924. The Seagate Beach Company was formed to operate under the Avalon Company contract, and a resolution was passed by its board of directors which was designed to enable that company, in effect, to take over the Avalon Company contract and issue its entire authorized capital stock for the property so purchased. Although no transfer of the rights of the Cummings Brothers or complainant under the Avalon Company contract appears to have been made to the Seagate Beach Company, and no stock was issued for the purchase price, operations were conducted as contemplated during the summer of 1924, and a number of lots were improved and sold and title taken by the purchasers, and the scheduled purchase price of each lot so sold was then paid to the Avalon Company. Differences then arose between Cummings Brothers and complainant and further operations were suspended.
    By this bill complainant seeks an accounting from the Cummings Brothers, and also seeks to compel the Seagate Beach Company to issue to him part of its capital stock.
    Cummings Brothers and the Seagate Beach Company have pleaded the statute of frauds as a bar to relief against them.

      Mr. Lewis Starr, for the complainant.

      Messrs. Bleakly, Stockwell & Burling (for whom appeared Mr. Harvey F. Qarr, of Messrs. Carr .<& Oarroll), for the defendants.
   Leaming, V. C.

Complainant urges that his parol contract of joint adventure with Cummings Brothers was not a contract for an interest in real estate, but was merely a contract for an interest in the profits to be derived from the purchase and sale of the real estate, .and, hence, does not fall within the-provisions of our statute of frauds.

The authorities in this country are in conflict as to whether a parol agreement of joint adventure in the nature of a partnership to speculate in real estate falls within the provisions of a statute of frauds similar to the statute of frauds of this state. Some of the authorities adopt the view that when the parol agreement may be said to contemplate only an interest in the profits, as distinguished from an interest in the land, on the part of the party seeking relief, the statute does not afford a bar. Other authorities repudiate that view, and hold that a partnership to> speculate in real estate for profit necessarily carries with it an interest in land within the meaning of the statute of frauds. In 18 A. L. R. 484, an extended note collects the authorities of the several states on this general subject.

But it seems unnecessary to here consider whether in any circumstances a joint enterprise in the nature of a partnership of this general nature could be said to contemplate only an interest in profits as distinguished from an interest in the land from which the profits were to be derived, and for that reason free from the operation of our statute of frauds. The parol contract here under consideration was that complainant should become equally interested with the two members of the firm of Cummings Brothers in the contract wherein the Avalon Company agreed to convey to the Cummings Bro; thers the real estate described in that contract. While ultimate profits necessarily was the primary object of the joint enterprise, equality of interest in the equitable title of Cummings Brothers under the Avalon Company contract was a distinctive feature of the parol agreement; that parol agreement contemplated no rights, powers or interests of Cummings Brothers not equally to be shared by complainant. Accordingly, it seems impossible to contemplate the parol agreement here sought to be enforced as merely an agreement touching profits to be derived from the purchase and sale of land as distinguished from an agreement for an interest in land.

Mr. Justice Story, in Smith v. Burnham, 3 Sumn. 435 (Fed. Cas. No. 13,019), not only repudiates as unsound a distinction between a contract for the sale of land and one for the sale of an interest in the profits to be acquired by its purchase and sale, but also expresses the view, which seems unanswerable, that the trust provisions of the statute of frauds are applicable to all such cases because title is held by one for the benefit of another under agreements not manifest in writing, excepting, of course, resulting and constructive trusts. No resulting trust can be here suggested, since no money of complainant’s was used in the acquisition by Cummings Brothers of the Avalon Company contract. That view also appears to have been entertained by Vice-Chancellor Pitney in Schultz v. Waldons, 60 N. J. Eq. 71. Alike by the terms and spirit of the parol agreement here involved the equitable title of the Cummings Brothers under the Avalon Company contract was to be held by them for complainant as to an equal one-third interest therein; this constitutes complainant’s present claim an attempt to establish an express trust in land by an agreement not manifest by writing. A trust as to an equitable title in land in no way differs in this respect from a trust as to a consummated legal title. Richards v. Richards, 9 Gray 313.

Complainant further urges that there has been sufficient part performance of the parol contract to remove it from the operation of the statute of frauds. In suits for relief by means of specific performance of parol contracts for the sale of land, delivery of possession to the vendee and permanent and valuable improvements made by the vendee have long been regarded as elements affording grounds for that form of relief notwithstanding the statute of frauds. But the utmost that complainant has done, which can be said to be referable to the parol agreement with Cummings Brothers, is in the nature of personal services. Payment in cash or by contribution of personal services are not regarded as part performance within the rule stated. It also is apparent that specific performance of the parol agreement here under consideration is now impossible by reason of changed conditions; nor can this court award money damages where specific performance has become impossible prior to suit.

No relief can be awarded against the Seagate Beach Company. If complainant’s contract is to be deemed void or unenforceable against the Cummings Brothers it cannot be made the foundation of relief against the Seagate Beach Company. Any requirement that the Seagate Beach Company issue its capital stock to complainant or for complainant’s use, would, necessarily, be based upon an interest of complainant in the land covered by the Avalon Company contract. Nor does the resolutions of the Seagate Beach Company, to which reference has already been made, in any way recognize any interest of complainant in the land.

A decree will be advised dismissing the bill.


text:
    Mary A. Armstrong, complainant, v. Jennie Armstrong et al., defendants.
    [Submitted January 26th, 1926.
    Determined February 11th, 1926.]
    1. The statute touching presumptions of death (1 Oomp. Stat. p. 190It) is to be understood as simply defining the limits and directing the application of the ancient common law, and rendering the common law presumptions of death imperative.
    2. Alike by the common law and the statute, the absence of seven years which raises a presumption of death is an absence from a person’s home or last known place of abode.
    3. To support a presumption of death all available means should be resorted to to ascertain whether the person is alive.
    4. When last heard from, in the year 1900, a person had for twelve years resided in England at a place then known to his sister, who resided in this country. Correspondence between the sister and her brother in England then ceased, the brother having failed to reply to his sister’s last letter. The sister cannot now recall the address of her brother; in consequence, no inquiry for the brother has been made in England. Held, evidence inadequate to raise a presumption of death of the brother.
    On final hearing on bill for partition with a prayer for a decree establishing the death of Joseph Armstrong.

      Mr. Herbert S. Kille, for the complainant.

      Mr. -Joseph F. Holland, for the defendant Jennie Armstrong.

      Messrs. Palmer & Powell, for the defendants James M. Nolan and others.
   Leaming, V. C.

The only question necessary for determination herein at this time is whether the evidence which has been adduced is adequate to support a presumption of the death of Joseph Armstrong.

Our statute touching presumptions of death arising from an absence of seven years was originally adopted in 1797 {Pat. 241) and has remained unchanged since that time except as to an amendment in 1895. P. L. 1895 p. 751. That amendment extended the provisions of the act to nonresidents and added a provision touching concealment, but in no way changed its general nature, purpose or effect. The statute, as it now exists, provides as follows:

“That any person, whether resident of this state of not, who shall remain beyond sea or absent himself or herself from this state, or from the place of his or her last known residence, or conceal himself or herself in this state, or in the place of his or her last-known residence, for seven years successively, shall be presumed to be dead, in any case wherein his or hier death shall come in question, unless proof be made that he or she were alive within that time.” 2 Comp. Stat. p. 1904.

It has been determined in this court that this statute is to be understood as simply defining the limits and directing the application of the ancient rule of the common law and rendering the common law presumptions of death imperative. Osborne v. Allen, 26 N. J. Law 388; Burkhardt v. Burkhardt 68 N. J. Eq. 479.

Alike by the common law rule and by our statute it is not the mere absence of a person beyond sea, or elsewhere, for the period of seven years that raises the presumption of deáth. Absence is meaningless in any concrete sense unless associated with some place from which the person is absent. Accordingly, it has been repeatedly held that the absence contemplated is absence from a person’s home or last known place of abode. Treating the common law rule as a rule of evidence, Mr. G-reenleaf says: “There must also be evidence of diligent inquiry at the place of the person’s last residence in this country, and among his relatives, and any others who probably would have heard of him, if living, and also at the place of his foreign residence, if he was known to have had any.” 2 Greenl. Evid. (Lewis’ ed.) § 278-f. '“Even where a person whose existence is in question has remained beyond sea for seven years, if he had a known and fixed residence in a foreign country when he was last heard from, he ought not, in justice to be presumed dead, without some evidence of inquiries having been made for him at such known place of residence, without success.” McCartee, Admr., v. Camel, 1 Barb. Ch. R. (N. T.) 455, 463. “To raise a presumption of death from long absence unheard of, it is necessary that the person in question shall hav'e been absent from his place of residence. Thus, the absence of a person from his former place of residence for seven years does not raise a presumption of his death where it appears that he had moved to another place and there located, at least in the absence of evidence that inquiries have been made for him at his last known place of residence without success. The mere absence of a person from a place where his relatives reside, but which is not his own place of residence, without having been heard from by his relatives for seven years, does not raise any presumption of his death.” 1-7 G. J. tit. “Death” 1170. “It is generaly held that the presumption of death after seven years’ absence does not attach unless the absence is from the absent person’s place of residence, and the mere absence of a person from a place where his relatives reside, not his own residence, and their-failure to hear from him for seven years, are not sufficient to raise a presumption of his death. If a person removes from- his domicile to establish a home for himself in another state or country, at a place well known, this is a change of residence only, and absence from the former domicile does not raise a presumption of death. If alive at his last domicile when last heard from, the presumption is that life continues.” 8 R. C. L. tit. “Death” 709. See, also, to same general effect, Policemen’s Bene. Assn. v. Ryce, 213 Ill. 9, 17. The English authorities appear to be consistent with these views; so far as I have been privileged to examine them the general expression, not infrequently used, to the effect that death is presumed from seven years’ absence, has reference to absence from the last known abode of the absent party.

The evidence in the case sub juc&ice discloses that the absent defendant is a native of Ireland and has never been in this country; in the year 1900, when last heard from by his relatives, who reside in this country, he resided in England at a place in which he had theretofore resided for some twelve years; prior to the year 1900, from his home in England, he had corresponded regularly with his sister, who then resided in Troy, New York; at that time the correspondence ceased, without known cause; the last letter of the sister has never been answered; at this time the sister is unable to recall the name of the place in England where her brother resided when the correspondence ceased; in consequence, no inquiries have been made in England touching the address of the absent brother.

These facts are now urged in support of a presumption of death. So far as is known at this time the brother has never been away from the place where he resided when he was last heard from and'may still reside there. The single circumstance that he has not written to his sister during the long period of time stated clearly is inadequate to import death; his failure to answer her last letter may have arisen from either of many causes, consistent with continuing life. To support a presumption of death all available means should be resorted to to ascertain whether the person is alive.

Relief of the nature sought must be denied.

Note. — Proceedings under the supplemental act of 1911, page 538, could not be entertained .by reason of the non-residence of the absent defendant.


text:
    Alice Doyle, complainant, v. Benjamin Di Medio et ux., defendants.
    ['Submitted March 30th, 1926.
    Determined April 7th, 1926.]
    1. It is the duty of a mortgagee in possession to allow a credit on his mortgage for rents and profits received by him, or in the absence of rents or profits to allow a Credit for a fair amount as occupation value.
    2. The assertion of the duty of a mortgagee in possession to allow a credit on his mortgage for occupation value, whether the claim be made by a subsequent mortgagee or by the mortgagor, cannot be regarded, in strictness, as either an independent set-off or recoupment, since the duty to allow the credit flows from the status of a mortgagee in possession, and is of the same nature as a payment on the mortgage; the claim of right to a credit being merely a matter of ascertainment of the amount due on the mortgage.
    3. When a mortgagee is or has been in possession as mortgagee the ascertainment of the amount of the credit flowing from the possession, though unliquidated, becomes a necessary part of the foreclosure suit; an action at law to establish the claim is not necessary.
    4. Where no redemption is sought by the mortgagor and his defensive claim relates alone to the credit which flows from the mortgagee’s possession, no necessity exists for the employment of a separate counter,-elaim.
    5. Reference made to a master to ascertain the length of time, if any, the mortgagee was in possession as mortgagee, and the amount due from the mortgagee, if anything, for such possession.
    On bill to foreclose mortgage. On hearing on motion to strike out answer.

      Mr. Patrick H. Harding, solicitor of complainant, for the motion.

      Mr. Joseph H. Carr, solicitor of defendant, opposed.
   Leaming, V. C.

No doubt can exist touching the obligation of a mortgagee in possession' to allow a credit on his mortgage for rents and profits received by him, or in the absence of rents or profits to allow a credit for a fair amount as occupation value. The assertion of the duty of the mortgagee to allow that credit, whether the claim be made by a subsequent mortgagee or by the mortgagor, cannot be regarded, in strictness, as either an independent set-off or recoupment. The duty to allow the credit flows from the status of a mortgagee in possession, and is of the same nature as a payment on the mortgage; the claim of a right to a credit is merely a matter of ascertainment of the amount due on the mortgage. When a mortgagee is or has been in possession as mortgagee, the ascertainment of the amount of the credit flowing from that possession, though unliquidated, becomes a necessary part of the foreclosure suit; an action at law to establish the claim is not necessary.

In Onderdonk v. Gray, 19 N. J. Eq. 66, Chancellor Zabriskie, in commenting on the proper practice in such cases, gives approval to a cross-bill (now called a counterclaim) by the mortgagor praying for an account, and to be allowed to redeem on paying the balance. The situation here presented is radically different. Complainant’s foreclosure bill discloses that her mortgage is only due by reason of default in the payment of an interest installment, which default matures the principal by the terms of the mortgage. The mortgagor’s answer sets up by way of affirmative defense that the mortgage is not due, since a proper credit for the occupation by the mortgagee will more than satisfy the interest installment. If this be found to be true the bill will necessarily fall. -Since no redemption is sought by the mortgagor, and his defensive claim relates alone to the credit which flows from the mortgagee’s possession, there appears to be no necessity for' the employment oí a separate counterclaim.

The motion to strike out the answer 'will be denied.

I think the most expeditious and advantageous course will be a reference to a master to.ascertain the length of time, if any, that the mortgagee was in possession as mortgagee, and the amount due from her, if anything, for such occupation, as well as the payments which the mortgagor has made.


text:
    Anna May Von Laszewski, complainant, v. Arthur Von Laszewski, defendant.
    [Submitted April 26th. 1926.
    Determined April 30th, 1926.]
    1. In equity, a bill filed by a wife against her husband may be maintained for the protection or restoration of her separate estate, but that right has never been extended to the protection of personal as distinguishd from property rights, except by statute.
    2. Our Married Woman’s act does not empower a wife to maintain an action against her husband for personal injuries.
    On bill by wife against husband for damages for personal injuries. On hearing on motion to strike out bill.

      Messrs. Bleakly, Stockvjell & Burling, for the motion.

      Mr. Thomas G. Tuso, opposed.
   Leaming, V. C.

By the bill filed herein a wife seeks to recover damages from her husband for personal injuries sustained by her through the negligence of her husband in the operation of his automobile. Defendant has appropriately moved to strike out the bill. The motion will be granted.

Neither at law nor in equity can an action be maintained by a wife ^gainst her husband for personal injuries. In equity a bill filed by a wife against her husband may be maintained for the protection or restoration of her separate estate, but aside from certain relief in matrimonial causes, based on fraud or want of assent in the matrimonial contract, neither in England nor in this country, except by statute, has the right of a married woman to maintain an action against her husband, either at law or in equity, been extended to the protection of personal as distinguished from property rights.

As to our Married Woman’s act, it is sufficient to say that in the absence of a clear manifestation of legislative intent to effect so radical a change in our long established rules in this respect, that legislative purpose should not be declared by implication. But even if deemed changed by implication, the right of action for unliquidated damages would necessarily be pursued in the courts of law.


author: Lewis, V. C.

text:
    Arthur R. Clark, complainant, v. Margaret M. Roeder et al., defendants.
    [Decided January 20th, 1926.]
    1. A conveyance of land made by a grantor in consideration of maintenance and care during his life will be sustained when made by one having sufficient mental capacity, in the absence of fraud, duress or undue influence.
    2. Where H, who was nearly eighty years old, and infirm, made a will devising a farm to A, and later conveyed the farm to R in consideration of the promise by R to care for H during the rest of his life and give him proper burial, which promise was fully performed by R, on a bill by A to set aside the deed as the product of undue influence, or executed without sufficient mental capacity, very strong and convincing testimony should be produced by the complainant to enable him to succeed.
    8. Evidence examined, and held that the complainant not having produced strong and convincing testimony to establish want of capacity or undue influence, his bill should be dismissed.
    On bill, pleadings and proofs.

      Mr. A.cherson J. Macherly, for the complainant.

      Messrs. Morris é Downing, for the defendants.
   Lewis, V. C.

The bill in this case is filed to set aside the conveyance of a farm located in Sussex county, Yew Jersey, which was transferred by Horace D. Hoffman in his lifetime to the defendant Margaret Y. Boeder. The deed for the property was executed on June 13th, 1923, and afterwards was recorded in the Sussex county clerk’s office. On June 18th, 1923, Hoffman died. The property was valued at about $3,000. The consideration for the conveyance set forth in the deed was—

“One dollar and other valuable consideration, including the care through sickness and health during life of said Horace D. Hoffman further set forth herein, lawful money of the United States.”

The deed contains a further recital forming the description of the property conveyed, as follows:

“It is a part of the consideration for which the said Horace D. Hoffman has granted this deed that the said Margaret M. Roeder, the party of the second part, or her heirs or assigns, shall board, take kind and proper care of the said Horace D. Hoffman, in sickness and health so long as he shall live, and that she will furnish all medical attendance and nursing which the said Horace D. Hoffman shall need in any sickness which.may overtake him during his lifetime, and upon his death shall provide for him a good and respectable funeral and burial in the cemetery at Mount Salem, in the township of Wantage, this consideration is made a lien upon the said farm, and, in case of failure, to furnish any part of this consideration, the cost of such failure shall be paid from a sale of the said farm by proper legal procedure.”

The facts material to the issue are not complicated and are practically undisputed. The inferences to be drawn from them, however, are in sharp dispute between the contending parties. It appears that for about a year prior to his death Hoffman had been in failing health. He was nearly eighty years old at the time of his death. In the preceding year he had suffered a stroke of paralysis, and all the testimony goes to show that this resulted in a deterioration of both his physical and mental energies. Other complications resulted, and his kidneys became affected, and the usual and expectable conditions therefrom ensued. Hoffman’s wife had died, and he apparently had no immediate family to whom he could look for care and attention in his old age. He had leased his farm where he had lived to the complainant, Arthur R. Clark, who, with his wife, then lived on the farm. In October, 1922, Hoffman made a will in which he devised the farm to the (omplainant. This was shortly before Hoffman sustained the paralytic stroke. He seems to have been fond of the complainant and desired him to have the farm after his death, at the time this will was made. Hoffman appears to have been then living on the farm, although he, from time to time, went to live with other people, including the defendants. Early in the year 1923 Hoffman’s condition became so feeble that he desired to arrange with someone to take care of him during -the rest of his life. He had an aversion to being sent to a hospital. He thereupon asked Clark, his tenant, and the devisee named in his will, if he would take care of him while he lived, but Clark said that he did not have time to do so, and Clark’s wife said that she would not. Hoffman then asked a Mr. Muir if he would take care of him, but Muir told him that while he would be willing to take care of him until such time as Hoffman might require daily attention, that then he would have to go to the hospital. This was just what Hoffman desired to avoid, so he made no arrangement with Muir. He thereupon interviewed Mr. and Mrs. Boeder, the defendants, and submitted to them the proposition that if they would board him and take care of him for the rest of his life, and see to it that he was buried in the cemetery of his choice, he would convey to them, in his lifetime, the farm in question. It appears that they considered this proposition for some time before they accepted it, but, on May 2d, 1923, they finally agreed to its terms. It appears, further, that there was an agreement in writing to this effect prepared, and that it was signed by Mr. Hoffman, but was not signed by the Roeders. At that time, alsoj the Roeders advanced to Mr. Hoffman $50 with which to pay taxes that had accrued on the property. This contract was not produced, however, and the solicitors for the defendants claim that it has been lost, but, in view of the subsequent conveyance of the farm by Hoffman to Mrs. Boeder, the agreement does not seem to me to be material. The transaction was completed by the execution of the deed so far as Hoffman was concerned, and, so far as the Roeders are concerned, the deed itself sets forth the duties which was incumbent upon the grantee to. perform as the consideration for the conveyance.

The complainant, who claims the farm by reason of the devise in Hoffman’s will, now seeks to have this conveyance to Mrs. Boeder set aside, so that title to the farm may thereby vest in him. He attacks the validity of the conveyance on the grounds that the grantor lacked mental capacity to make a valid deed; that he was unduly influenced by the Roeders to convey the property to them; that the conveyance was without consideration, or for a grossly inadequate one, and that because of the inadequate consideration the conveyance was fraudulent.

The defendants, on the other hand, contend that the conveyance to Mrs. Boeder was based upon a valuable and adequate consideration; that the grantor had full mental capacity to understand the nature and purpose and effect of his acts, and that there was no undue influence or fraud practiced by them upon the grantor.

It is apparent that the complainant in this case does not stand in the position of a creditor, or a near relative, or a contractee, against whom the conveyance to Mrs. Boeder, even if based upon an inadequate Consideration, could be considered to be fraudulent or in disregard of their legal rights. He is simply one who contends that he is the donee of the owner’s bounty under a will to that extent made in his favor, almost a year prior to the death of the testator, the subject-matter of which devise was voluntarily conveyed by the owner, after the execution of that will, to a grantee, who, thereby, in accepting the deed, became bound to perform the covenants therein contained. Under such circumstances, I feel that the complainant should produce very strong and convincing testimony to establish his objections to the conveyance if he is to prevail. I do not think that he has done this.

Mr. Hoffman had the right to do as he wished with his property, and to bestow it where he desired. He was under no legal obligation to convey it to complainant, and, after he found that complainant and his wife would not undertake to care for him as he desired, he had a perfect right to bargain with the defendants for that care and to convey his farm to them in consideration thereof. At the time he made his bargain with the defendants no one knew how long Hoffman would live nor how much care and attention, medical and otherwise, he might require. Defendants undertook to care for Hoffman under those circumstances, upon his agreeing to convey the farm to them, aind after they had taken care of him for some time, and it became apparent that his condition was growing steadily worse, they arranged for the execution of the deed. On the day of the execution of the deed defendants drove Hoffman to Sussex to the office of a Mr. Stickney, who was the person who had drawn the will for Hoffman in the preceding October, and who appears to have been a scrivener, and Hoffman’s adviser. The testimony of the various witnesses shows that on this occasion Mr. Hoffman went to the bank, where he had his safe deposit box, and inquired for the proper officers in order to obtain •access to this box. He selected from it certain papers that he said he required, and returned the box to its place. Thereupon he went to Stickney’s office, and the deed involved in this suit was drawn. Although Mr. and Mrs. Eoeder were present with him, nevertheless, Stickney inquired very carefully and thoroughly into the transaction, and frankly interrogated Hoffman as to his relations with the defendants, and the nature and purpose of the action that he was taking, in order to satisfy himself that it was as it should be. The official of the bank, from whom Hoffman secured the papers earlier in the day, testifies that later on Hoffman returned 'and obtained the revenue stamps necessary to be placed on the deed. He further testified that Hoffman appeared to know definitely just what he wanted and what he wanted to do, and that he appeared to be competent to do it. Other witnesses testified in support of the mental capacity of the grantor, and, although the physicians who attended Hoffman during his illness testified that the nature of his maladies naturally affected both his physical and mental faculties, still neither of them would say that he did not have sufficient capacity to understand the nature and effect of his acts at the time of the making of the agreement with the defendant and the execution of the deed.

There is ample authority to sustain a conveyance of lands made by a grantor in consideration of maintenance and care during his natural life when made by one having sufficient mental capacity, in the absence of fraud, duress or undue influence. Collins v. Collins, 45 N. J. Eq. 813; Holland v. John, 60 N. J. Eq. 435; Soper v. Cisco, 85 N. J. Eq. 165; Voorhees v. Christie, 96 N. J. Eq. 337.

In the present case, I feel that the grantor had sufficient capacity to make the deed, which was based upon a fair, valuable consideration under the circumstances existing at the time of the transaction leading up to its execution, and that neither fraud, duress nor undue influence has been established to subvert it.

Eor these reasons I am constrained to deny the prayer of the bill, and will advise a decree that it be dismissed accord ingly.


text:
    Edward L. Katzenbach, attorney-general of the State of New Jersey, informant, v. Armstrong Cork Company, defendant.
    [Decided February 24th, 1926.]
    1. A legislative grant is to be strictly construed, and its general terms should not be extended to include specific rights, not clearly included within its language.
    2. Where a charter of a company gave it the right to reclaim riparian lands, it vested in it an undisturbable right so far as such reclamation took place within proper limits, but such right is a mere license or privilege or “liberty” and is subject to withdrawal or revocation by the state if not previously exercised or acted upon by actual reclamation improvements, and as there has been a specific appropriation by the legislature of such portions of the land in question as have not been actually reclaimed or otherwise improved or built upon at the time of the passage of P. L. 1891 p. 216, the defendant will be restrained from proceeding with the reclamation and improvement of such lands.
    On pleadings and proofs.

      Mr. Iíenry J. Gaede, deputy attorney-general, for Edward L. Katzenbach, attorney-general of the State of New Jersey, informant.

      Mr. Lewis Starr and Mr. L. Edward Herrmann, for the defendant.
   Lewis, V. C.

This is a bill to restrain the defendant from proceedings with the reclamation and improvement of certain riparian lands, of which it claims to be the owner, in accordance with the plans covering the contemplated improvements which have been approved by the board of .commerce and navigation of this state. Notwithstanding such approval, however, the board contends that the defendant has no title to certain portions of the lands upon which the proposed improvements are to be constructed, and insists that title thereto is in the state, and that the defendant must now acquire, from the state, either by grant or lease, and for an adequate consideration, the right to occupy, possess and use those disputed portions. The defendant, on the other hand, insists that it is not obliged to purchase or lease from the state, at this time, the lands in dispute, and claims that it has the absolute right to reclaim and occupy and use them pursuant to the approval of the plans, as the successor in title, by various mesne conveyances of the Gloucester Land Company, a corporation formed by the act of the legislature of New Jersey of February 16th, 1846. Pamph. L. 181^6 p. 20.

Prior to 1846 a group of men were interested in developing Gloucester, and they had acquired a large area of land in that vicinity, bordering on the Delaware river, and which appears to have been held in trust for them by Siter and Simmons, two of their number. As contemplated by the act of incorporation of the Gloucester Land Company, Siter and Simmons conveyed the various tracts of land which they so held, to the land company, including the upland adjacent to the tract involved in the present, dispute. The land company, after its incorporation, in turn conveyed the same to the Washington Manufacturing Company, a corporation of the State of New Jersey, which held them until 1892, when it went into the hands of a receiver, who later convejred the said lands and premises to Henry S. Grove, William S. Blakeley and George H. McFadden. In 1893 they conve3^ed the same to the Argo Mills Company, a New Jersey corporation. In 1920, the Argo Mills Company conveyed to Frank L. Hummel, trustee, and on November 20th, 1923, Hummel conve3red to the defendant by a deed, which contained, among other things, the recital:

• “Containing in front or breadth on said Ellis street eight hundred and fifty feet, and extending of that width in length or depth westwardly along the northerly line of Monmouth street, and the southerly line of Mercer street to low water mark in the river Delaware, and so far into the Delaware river as the rights of said party of the first part extend. * * * Together with the right, privilege and license now vested in said party of the first part to exclude tide waters of the Delaware river by filling in, reclaiming or otherwise improving the lands under water in said river in front of the above premises, and to appropriate the said land to its or their exclusive use.”

The evidence shows that certain structures had existed on these lands since at least about 1870, and that the pier, as it exists at this time, is the same as was erected and existed at least prior to 1882, except certain portions thereof which were completed about 1886 or 1887, and that it was connected with a suction pipe running into the shore. It also shows that the dock, according to the map of .Haynes & Sherman, extends riverward of the low-water mark.

It is conceded by the attorney-general that any reclamation made by the owners of the upland adjoining the lands under water in .question vested in them an undisturbable right as far as such reclamation took place within proper limits, and that the high-water mark, as shown on the map of Haynes & Sherman, offered in evidence in these proceedings, must now be taken to be the limit of the state’s rights, as it appears from the testimony that the fill was made to the present high-water line a considerable time priomto 1891.

The point of contention between the parties, therefore, narrows itself down to the right of the defendant to reclaim and improve at this time, without the grant or lease of the state, those portions of the lands in controversy which have not heretofore been actually reclaimed, filled in or built upon. And the determination of this point depends upon the construction to be given the grant to the Gloucester Land Company by its charter of 1846, in conjunction with the then existing local usage respecting the rights of the abutting owner, and the effect thereon of subsequent legislation relating thereto. Bell v. Gough, 23 N. J. Law 624

Section 5 of the act of 1846 provides that the said company “shall have liberty to fill up, occupy, possess and enjoy all lands covered with water fronting and adjoining the premises that may now be owned or may hereafter be purchased by them, and may construct thereon wharves, harbors, piers, slips or other structures necessary for commercial and shipping purposes.”

The legislative grant is to be strictly construed and its general terms should not be extended to include specific rights not clearly included within its language. Morris Canal, &c., Co. v. C. R. R. Co., 16 N. J. Eq. 419; Townsend v. Brown, 24 N. J. Law 80, 87; McCran v. Erie R. R. Co., 95 N. J. Eq. 653, 656; New Jersey Zinc Co. v. Morris Canal Co., 44 N. J. Eq. 398.

In my opinion, the right acquired by the Gloucester Land Company to reclaim the riparian lands adjacent to its-upland, by its charter of 1846, and its like apparent common law or customary right, was a mere license or privilege or “liberty,” which was subject to withdrawal or revocation by the state, if not previously exercised or acted upon by actual reclamation improvements, and that there has been a specific appropriation by the legislature of such portions of the lands involved in this suit as had not been actually reclaimed or otherwise improved or built upon at the time of the passage of the act of 1891 (P. L. 1891 ¶. 216), which provides, in part, that “without the grant or permission of the riparian commissioners no person or corporation shall fill in, build upon or make any erection on, or reclaim any of the lands under the tide waters of this state.” P. L. 1894 ¶. 128; Const, of N. J. art. 4 § 7 6; Henderson v. Atlantic City, 64 N. J. Eq. 583; Stevens v. Paterson Railway, 34 N. J. Law 532.

It follows, therefore, that the bill of the attorney-general, in so far as those hitherto unreclaimed portions of the lands in controversy are concerned, must be sustained, and I will advise a decree accordingly.


text:
    The Mayor and Aldermen of Jersey City, complainant, v. Jersey City Water Supply Company et al., defendants.
    [Decided April 8th, 1926.]
    Where a valid release was to he made under legislative sanction and delivered to the water supply company in order to justify the payment of a large sum of money, held, that the evidence now submitted in that cause shows the fulfillment of that condition, and therefore the money should now be paid.
    On supplemental bill of Jersey City Water Supply Company. On pleadings and proofs.

      Messrs. Humphreys & Sumner {Mr. John B. Humphreys), Mr. J. Edward Aslimead and Mr. Frederick J. Faulks, for the defendant Jersey City Water Supply Company.

      Mr. Thomas J. Brogan, for the complainant.
   Lewis, V. C.

This matter is before the 'court on a second supplemental bill filed by the Jersey City Water Supply Company, and is the latest phase of a long, drawn out litigation, which has been presented to the courts of this state in numerous aspects. It is sufficient for the present purpose to refer to the decisions of this court and of the court of errors and appeals, respecting the first supplemental bill filed by this defendant, covering the specific subject-matter of the present bill. See The Mayor and Aldermen of Jersey City v. Jersey City Water Supply Co. et al., 93 N. J. Eq. 36; affirmed, Ibid. 620.

It will be noted from the discussions of the issues involved in the former supplemental bill by the respective courts that the sole question under consideration was the propriety of decreeing payment to the Jersey City Water Supply Company of $500,000 (five hundred thousand dollars), which had been retained by the complainant until the same should become due under the terms and conditions of the main contract involved in the litigation pursuant to a former decree of this court, which was later affirmed in that respect by the court of errors and appeals. See Jersey City V. Flynn, 74 N. J. Eq. 104; 76 N. J. Eq. 607; Jersey City v. Jersey City Water Supply Co., 93 N. J. Eq. 620 (at p. 622).

This court decreed the dismissal of the former supplemental bill on the ground that the condition of the .fourth section of the main contract relating to the delivery by the contractors to Jersey City of a valid release from the Morris Canal and Banking Company and its lessee, with respect to their rights in the waters of the Eockaway Eiver watershed, had not been complied with by the release which those companies had theretofore delivered to Jersey City, which was to take effect only upon the abandonment of the navigation of the Morris canal between Dover and Montville, under legislative sanction; because it was not shown that such legislative sanction had been granted or obtained. The decree of this court, as previously indicated, was affirmed by the court of errors and appeals, and in this respect Mr. Justice Trenchard, speaking for that court, at page 624 of the report, supra, after quoting from the fourth paragraph of the contract, as aforesaid, stated that—

“Properly construed, that means that the money should be surrendered to the water supply company as soon as a valid release was delivered, which should be presently effective— that is, one which should extinguish any future right of appropriation by the canal company. Now, the so-called release which was executed and delivered, although following the form of the contract, does not comply with the manifest' intent and purpose of the contract. By its terms it does not take effect until aba/ndonment of the navigation of the canal between Dover and Montville under legislative sanction. Legislative sanction has not been given. The release, therefore, was not effective when it was delivered; it is not effective to-day, and may never be effective, for the legislature may 'never release the canal company from its public duty of operating the canal between the points mentioned in the document. Under present conditions, the instrument, while in the form of a release, is not the valid release contemplated by the contract, since it never can become operative in the Slightest degree until the provision with relation to abandonment under legislative sanction has been fulfilled.

“The supplemental bill of the water supply company was therefore properly dismissed.”

It is now contended by the water supply company that the legislative sanction referred to has been given, through the medium of numerous acts of the legislature of this state, subsequently enacted, and that all the terms, conditions and requirements exacted by that legislation have been complied with and performed.

Voluminous testimony has been taken upon the present hearing and the various aspects of this final phase of the litigation presented by counsel have been exhaustively argued in accordance with their respective contentions.

I am satisfied, however, that the sole, material issue now involved is that which was presented by the former supplemental bill, and that the condition which, in that suit, was decreed to be then unfulfilled, has now been fully complied with. It follows, therefore, that'the release from the Morris Canal and Banking Company and its lessee, delivered by the water supply company to the city of Jersey City, and which was to take effect upon their abandonment of the navigation of said canal between Dover and Montville, under legislative sanction> is a valid release within the proper construction of the fourth section of the main contract, and an effective compliance with the provisions of that paragraph.

I will, therefore, advise a decree in .accordance with these views and the prayer of the present supplemental bill.

The terms of the decree may be settled upon due notice to the respective counsel.