author: Grikfin, Y. C.

text:
    Charles Grimminger v. John Alderton et al.
    [Submitted October 24th, 1914.
    Decided January 21st, 1915.]
    1. Complainant was mentally incompetent, and bis wife, who had married him to secure his property, procured bis conveyance of all his property to a third person, and thence to them in their joint names, both without consideration, and afterwards procured his deed to her relatives living in the same house, so that thereby he was divested of substantially all interest in the property of record, and was unable to work and dependent upon the grantees, and had not had the benefit of independent advice.—Held, that complainant might have the conveyances set aside, in the absence of the grantees’ proof of the fairness of the transaction.

      2. In such case the conveyances would not be allowed to stand, without proof that the grantor understood the nature of the transaction.
    3. A husband’s conveyance of realty to himself and his wife vested in them the lands in common, each holding one-half during their joint lives with survivorship as at common law.

      Mr. Franlc G. Turner, for the complainant.

      Mr. Charles E. S. Simpson, for the defendants.
   Grikfin, Y. C.

The bill in this cause is filed to set aside three conveyances made as follows: (a) by the complainant and wife, Fiances, to John Alderton; (5) by John Alderton and wife to the complainant and wife, Frances (both made April 26th, 1907); (c) by the complainant and his wife, Frances, to John Alderton and Alice Alderton, his wife (made April 28th, 1911).

At the time these conveyances were made complainant had no other property.

The complainant and defendant Frances were married on October 25th, 1906, after an acquaintanceship of four months. From childhood the complainant had been, and still is, mentally deficient, being, as it is said, an epileptic. The brother of the complainant, upon learning of the prospective marriage, acquainted Frances of the complainant’s condition, urged her not to marry him, but she replied that she would marry him in spite of his condition. This she denies.

At the time she became acquainted with him there was pending in chancery a suit for the partition of the estate of complainant’s father—the complainant and one other brother were represented by Messrs. Yredenburgh, Wall & Yan Winkle, the case being in charge of Mr. Yan Winkle.

. Prior to the marriage, and also to the payment of complainant’s share of the proceeds of sale in partition, and before the complainant purchased the premises in question, Frances sought to obtain from Mr. Yan Winkle information as to what complainant would receive from the partition suit. Mr. Yan Winkle testified as follows:

“Q. Gan you tell what the conversation was?
“A. Well, I can only recall the substance of it. The substance of the conversation was a request by her of me to ascertain how much money was coming to Charles Grimminger from his father’s estate.
“By the Vice-Chancellor—Were they married at that time?
“A. Unmarried, sir. She introduced herself, and I understood from her at that time that she was to marry Charles Grimminger; and I viewed him as a man unfit to marry, because of this condition; and I was very short and peremptory with this lady, and gave her little information.”

This Frances also 'denies.

On October 5tli, 1906, Mr. Yan Winkle, on the written authority of the complainant, sent a check to Michael Grimminger, the brother of the complainant, for $7,335.14, being the balance due the complainant upon his share in the partition suit, to be by him deposited in the New Jersey Title Guarantee and Trust Company as a special deposit in the name of George Grimminger, trastee. This, Mr. Yan Winkle says, was done because he viewed the complainant as a person unfit to handle so large a suni of money.

Prior to the receipt of these moneys the complainant had entered into a contract for the purchase of the premises in question for $5,000, the deed for which, while dated and acknowledged September, 1906, was not delivered, nor the consideration paid until about October 13th, 1906, the date of record; the purchase price having been paid out of .the moneys received in the partition suit; adding to this the sum1 of about $1,300 paid for his board accrued prior thereto, a small sum remained in his hands out of the moneys received from the suit.

The complainant and Frances spent their honeymoon in Washington, and while there the complainant had a fit. This, she says, was the first intimation she had that he was so afflicted.

Immediately after the wedding the complainant and his wife moved into the premises and occupied substantially one-half, at the same time the Aldertons, parents of Frances, entered into the occupancy of the other half. Defendants say that the Aldertons, on entering, paid $11, and, later, $14 a month as rent for the portion occupied by them.

From October, 1906, until July, 1910, the occupants of this house were the complainant and defendants and a son of the Aldertons named William, all of whom practically lived together as a single family. During this period no light is shed upon the relations existing between the complainant and defendants, save only such as comes from the defendants—William not being called. Little weight can be given to what the complainant says, because of his mental condition; his stories are contradictory; he is forgetful, has little idea of time, place and circumstances. To illustrate: He says his child (born in 1909) lived three or four years, whereas she lived but six months. He did i\ot remember, until his memory was refreshed, that he occupied the house with the Aldertons until after this suit was commenced, and he was advised by his counsel to leave, but, on the contrary, -said he thought he lived at the Boulevard Hotel, in 1911, whereas the time was 1913. And in numerous other instances he showed his utter lack of memory and understanding. He spoke freely, without any attempt to dissemble; his manner, personal appearance and speech clearly indicated a weak and disordered mind. His condition also was such as to render him unfit for work, and of this he did very little, and was therefore dependent upon the property in question and the defendants for his livelihood.

Frances, in speaking of the making of the deeds, in 1907, on direct examination, testified as follows :

“Q. At whose suggestion was that done?
“A. Well, we talked about it, and I said, ‘Why don’t you have my name on it,’ and he said, ‘Well, X will see,’ and then I guess he thought it over, and after that he came back and said, ‘We will go lip to Brown and get Mr. Brown to do it,’ and that is how we came to do it.”

And, on cross-examination, she said:

“Q. And were you afraid he might die as the result of these fits?
“A. Well, I didn’t know what would happen.
“Q. Was that the thing, because of the fits, that caused you to have the property made over in your name?
“A. No, sir.
“Q. What was the reason?
“A. Well, I thought it was right that I should have my name on it.
“Q. You thought it was right you should have your name on it?
“A. Yes.
“0. But you knew the property had been bought with his money, didn’t you?
“A. Yes.”

The testimony of complainant’s witnesses demonstrates that the condition of the complainant for years before the filing of the bill and prior to his marriage was the same as on the date they testified, and, particularly, Mr. Van Winkle, a reputable member of the Hudson county bar, who knew the complainant since the beginning of 1906, says that his condition remained unchanged.

Mr. Brown, who drew the deeds, in 1907, recalls little of the circumstances attending the drawing and acknowledgment of the deeds—he simply states that, pursuing his custom, they were acknowledged in due form.

The condition of this young man in the household from October, 1906, until Juty, 1910, may be inferred from some of the statements of Mrs. Alderton, and from what transpired, after July, 1910, when Mrs. Price, a niece of Mrs. Alderton, came to board with the Aldertons. Mrs. Alderton says that there was nothing the matter with the complainant; that he was lazy, and could work just as well as her husband; that he did work to buy clothes. But this statement of his ability to work is simply absurd. His mental and physical condition was such that he could not work unless moved by some impelling force, in which case it would be difficult to believe that his services would satisfy anjr employer. I take it, from this, that his failure to work was a matter of frequent discussion in the family; and Mrs. Aider-ton says that the fact that he would not work, and money matters, were causes of dispute between the complainant and Prances.

On November 2d, 1908, complainant and his wife made a mortgage to a building loan association for the sum of $500 to raise funds, as Prances says, to cover the expenses of her approaching accouchement. There was about $100 deducted from the sum, and the balance paid by the attorney to Prances, in which transaction the complainant was evidently ignored. All of the rents paid by the Aldertons for the use of the premises were paid to the daughter Prances. According to the Aldertons’ stories, about April 8th, 1911, there were arrears of taxes, water rents, interest and dues on the building loan mortgage, and the complainant, having no funds to pay the same, it is stated by the defendants that the complainant actually solicited Alderton and his wife to take a deed of the property in their own names, so that the complainant and his wife would have a home, and that when the complainant reimbursed the Aldertons for their outlay, the property would be reconveyed to the complainant and his wife. The Aldertons say they did not want to take such a deed, but wanted the complainant to have the deed made to one of his brothers. He did not want this. Accordingly, the complainant and his wife made their full covenant warranty deed to John Alderton and Alice Alderton, his wife, conveying the fee-simple in said premises. At the time of this conveyance there was no memorandum signed by the Aldertons showing the terms upon which the deed was delivered, and no effort whatever made to protect the interest of the complainant. After the conveyance Alderton made the repairs to the premises, incurred expenses on account thereof, and did so without ever conferring with the complainant or asking his advice or permission to do so; and Alderton says he did not think that it was necessary that he should ask the consent or advice of the complainant in the matter.

The whole course of conduct of the defendants toward the complainant clearly indicates that they did not regard him as being worthy of any consideration. They, from the beginning, treated this property as their own, and did as they saw fit with respect thereto. Their treatment of the complainant, and his acquiescence in such treatment, are rather mute evidences of the mental weakness of the complainant and the domination which they exercised over him without protest; and, in fact, this suit would not have been brought were it not for the fact that after his wife obtained a divorce from him the complainant was led by his brothers to institute it.

On January 30th, 1913, Frances filed her petition for divorce against the complainant, charging that complainant had deserted her in the month of August, 1910, the petition being for statutory desertion. A decree nisi was entered in the suit April 29th, 1913. How, on the facts as shown in this case, such a divorce could be obtained, if Frances is truthful, is a mystery to me. But, in considering this case, I may only look into it in so fax as it may have a bearing on this controversy. The testimony shows that Frances occupied a room in this house with Mrs. Price from July, 1910, to April, 1913, and during all the time, from the date of their marriage down to April, 1913, the husband and wife lived under the same roof. Dealing with the deed given in 1911 by the complainánt and his wife to the Alder-tons, Frances said that they had stopped living together for about a week before the transfer was made to the father and mother because he did not work, and they were angry at one another. She says, “Then we got to talking again, and got to sleeping again together.” Then she proceeds to testify as follows:

“Q. And Ihen the transfer was made after you got talking again?
“A. We talked the matter over first, and then after we got to speaking right, then he said he would turn it over.
“By the Vice-Chancellor-—What did you say to him about turning it over?
“A. Well, the only thing I said to him was I thought it was a good idea if he would turn it over, then we would have a home for ourselves; then we would be sure of a place to live in.
“Q. Well, didn’t you suggest to him that it ought to be turned over to your father and mother?
' “A. Well, I asked him first, but then he was not willing at first; he went down and asked his brother first; and then he came back and he talked it over again, and he said he was willing to turn it over to my father and mother.
“Q. And after he turned it over to your father and mother, what were they to do?
“A. They were going to look after- the place and keep the repairs up and everything, and pay the taxes, and keep everything right, and we should have a home.
“Q. Your father and mother were to give yon and your husband a home?
“A. Yes; when we turned it over. That was the agreement that was made, that they would give us a home, and they were to look after the property and keep it in good repair.”

Therefore, as at the time the deed was delivered on April 8th, 1911, they were living together, and the petition for divorce was filed on January 30th, 1913, the two-year period of desertion would not have expired until some time after April 8th, 1913; and, taking the case most favorably to the defendant Frances, the desertion could not have been continued, at the time of her filing the petition, for more than one year and nine months.

Passing wliat might be a fraud practiced on the court in procuring the divorce, the testimony of Frances has a very significant bearing on the means used to obtain the deed in 1911, and as tending to discredit the testimony of the defendants generally, and to show the complete domination that the defendants possessed over this young man. The Aldertons would have the court believe that they did not want to take this deed; and yet, their daughter, on her own story, patched up the quarrel with the complainant and resumed cohabitation apparently for the purpose of securing the execution of the deed. It may be that this same course was pursued in 1907 to compel him to execute the deed for the purpose of putting the property in their joint names.

Flaving eliminated the complainant from the ownership of the property, the interest of the defendants in the complainant, if any they had before, ceased. He was treated as an utter stranger in the household, permitted to sleep in the attic, and while writhing in these fits no attention was paid to him. If he died in one of them the Aldertons would own the property, and his death apparently would not grieve them. To consummate the transaction the daughter then sued for a divorce while they were all living in the same household. The petition and citation were served upon him there, and he either did not comprehend their contents or gave them no attention.

■ To sum up the whole situation, the defendant Frances married the complainant after being fully apprised of his condition. She did not marry him for love, but to secure the benefits of his property. She first secured the transfer of the property to their joint names, so that it would become hers in the event of his death. Not content with that, some four years afterwards they induced him to make a deed which divested him of all interest in the property of record. Having thus secured everything that this unfortunate young man had, his wife then filed a bill for divorce to rid herself of him, alleging a desertion some seven months prior to a date when she says they occupied the same bed; and, having obtained her divorce, she married Goodman, her present husband, and now seeks to take to her new spouse one-half of the property which the complainant vested in her. It seems to me that Frances, in her marriage to the complainant, and in her conduct towards him since, perpetrated, and intended to perpetrate, a gross fraud upon him. She did not enter into matrimony with the idea of becoming a loving, faithful spouse.

In so far as the gift to Frances by the deeds of 1907 is concerned, the case is much stronger in favor of the complainant than Haydock v. Haydock, 34 N. J. Eq. 570. There the husband made certain gifts to his wife of a portion of his property. He had become weakened from age and disease. While they lived together, and none but her brothers were about him, without the advice of independent counsel, he made the gifts of which she was the recipient. The court held that the burden was cast upon the donee to show the fairness of the transaction, saying:

“I take the rule to be settled that where a person enfeebled in mind by disease or old age, is so placed as to be likely to be subjected to the influence of another, and makes a voluntary disposition of property in favor of that person, the courts require proof of the fact that the donor understood the nature of the act. Huguenin v. Baseley, 2 L. C. Eq. (4th Am. ed.), notes 1183, 1185; Am. Notes 1192, 1194.

“The presumption against the validity of the gift is not limited to those instances where the relation of parent and child, guardian and ward or husband and wife exists, but in every instance where the relation between the donor and donee is one in which the latter has acquired a dominant position. The parent, by age, may come under the sway of his children. Highberger v. Stiffler, 21 Md. 338. And so, as in the present case, the husband may become the dependent of the wife, and their natural position become reversed. * * *

“The influence which is undue in cases of gifts inter vivos, is very different from that which is required to set aside a will. In testamentary cases, undue influence is' always defined as coercion or fraud, but, inter vivos, no such definition is applied. Where parties hold positions in which one is more or less dependent upon the other, courts of equity hold that the weaker party must be protected, and they set aside his gifts if he had not proper advice independently of the other. Huguenin v. Baseley, supra, notes 1271.”

Tn this case the mental .condition of the complainant was about the same as Haydock’s. He lived in a household, surrounded by his wife, father-in-law, mother-in-law and brother-in-law. He was dependent upon them. So situated, ho was easily dominated. When the deeds were executed he did not have the benefit of advice independent of the donee and her family. The gift had relation to substantially all the property lie was possessed of, and resulted in vesting in the complainant and Frances, husband and wife, the lands in common, each holding one-half during their joint lives, with survivorship as at common law. Battlar v. Rosenblath, 42 N. J. Eq. 651, 657. Before this gift was consummated he might at any time sell the premises, subject to his wife’s inchoate right of dower, for a substantial sum; whereas, after the gift, considering his condition of health, it is unlikely that anyone would pay for his right and interest in the lands much more than a nominal sum. Thus, he divested himself by gift of all his property, excepting a share of the income, thereby losing the protection his prior estate might in future afford. Such a situation, applying the reasoning of Vice-Chancellor Stevens, in Pearce v. Stines, 79 N. J. Eq. 51, 56, seems also to bring the case within the opinion of the chief-justice in Slack v. Rees, 66 N. J. Eq. 447. In Pearce v. Stines, supra, the vice-chancellor, in commenting upon the proportion of the donor’s property that must be disposed of by gift in order to bring it within the rule in Slack v. Rees, said: “The principle of the decision, as pointed out by Judge Vredenbiirgh, in Coffey v. Sullivan, 63 N. J. Eq. 302, is that a man enfeebled by age and disease may not unadvisedly divest himself of his property, at a time when he can no longer work, and when by so doing, he becomes dependent upon the charity of others or of the public. I think the practical rule to be deduced from the cases is that the donor, having barely sufficient property to sustain himself for the rest of his life, shall not irrevocably, and without advice, give away so much of it as to leave himself an object of charity.

“The law does not go to the length of saying that a donor ■incapacitated by age and disease from earning his own living, may not even improvidently strip himself of all his property beyond recall, although there are cases which seem almost to go to that extent (Powell v. Powell (1900), 1 Ch. Div. 246); but it does say that his gift shall not stand, unless he have competent, independent advice, and refuse to act in accordance with it.”

While the case clearly is within the rule laid down in Haydock v. Haydock, supra, because I have no confidence in the testimony of the defendants which was offered to show the absence of undue influence, yet, if the case was free from the inference of the influence which is condemned, it still is within the rule of Slack v. Rees, supra, if a single fact is proven, namely, the mental weakness of the complainant at the time the gift was made, all the other elements justifying the annulment of the gift plainly appearing.

The complainant’s counsel should have offered medical testimony showing the nature of the disease, and its effect on the man, physically and mentally. No such evidence was produced. This omission, however, in the proof is not fatal, because the mental and physical condition of the complainant is- so marked, and had continued for such a long period without change, that any layman, after a brief experience with him, could reach only one conclusion, viz., that the man was possessed of a very weak mind.

I will advise a decree that the deeds given in 1907 to vest the title in the complainant and the defendant Frances be declared null and void.

The Aldertons, in their answer and testimony, set up the trust upon which they took the property, and express a willingness to reeonvey to the complainant and their daughter upon being reimbursed. On this branch of the ease there will be a reference to a master to ascertain the sums with which the Aldertons should be charged for use and occupation of the premises, and what credits should be allowed them for necessary expenditures for the care and preservation of the property, the payment of taxes, water rents, interest and dues upon the building loan mortgage, &c.—the form and scope of the order to be settled on notice.

Upon the coming in of the master’s report the decree will additionally provide that the Aldertons convey the premises to the complainant upon the payment to them of the amount, if any, so ascertained to be due.


source: Caselaw Access Project

author: Grirrin, V. C.

license: Public Domain

text:
    Laura Biggar Bennett v. James W. Piatt, executor, et al. James McConnell and Willis Biggar v. James W. Piatt, executor, et al.
    [Submitted June 28th, 1913.
    Decided January 28th, 1914.]
    1. Where complainant, alleged wife of the testator, and the devisee of a sixty per cent, interest in land with a theatre building thereon, after the performance of a trust to complete the building, on advice of counsel entered into a contract to sell her interest on certain terms and executed a deed to be delivered on the purchaser’s performance of the contract, and on her failure to perform, the purchaser filed in the court of common pleas of Allegheny county, Pennsylvania, a bill for specific performance, and her answer, filed by counsel, consented to a decree for specific performance, which was thereupon entered, the decree was entitled to full faith and credit upon her bill to charge the purchaser’s estate with the difference between the fair market value of her share In the property and the contract price.
    2. Such decree, in the absence of anything to impugn it, was res judicata on the same issues raised by complainant’s bill, so that she was entitled to no relief from the contract of sale.

      3. Where complainant sued to set aside her deed of her share as devisee in land with'a theatre building thereon, and to set aside the purchaser’s mortgage and bond, and for a sale of the property to pay the amount due under the will, and also sued to set aside the testator’s lease to defendant after making the will, and discontinued both suits, her bill to set aside the lease, not brought until more than a year after-wards, when the property had been disposed of, and when the purchasers, who might have defended with full knowledge of the facts, were both dead, showed such gross laches that, even if merit were shown, it would be unconscionable for the chancery court to entertain the complaint.
    4. Complainant, as devisee of a share of sixty per cent, in land with a theatre building thereon, after performance of a trust to pay off mortgages, taxes, &c., and to complete the building in not to exceed five years, agreed to sell her share subject to a mortgage, with a provision that prior to a certain day all the rents should be collected by the trustees, who- should not receive any part thereof, or be held to pay any taxes, &c., and that no interest should be charged on the purchase-money before that day, and further agreed that the estate should be devoted to payment of the debts of the estate out of the profits of the theatre.— Held, that, after such agreements and their part execution by the trustees, complainant had no right to an accounting of the rents of the property.
    5. A bequest merely of a succession of legacies of a certain amount each cannot be charged against a specific devise of real estate.
    6. Where an administrator filed his first and final account in the orphans court of Allegheny county, Pennsylvania, which was confirmed, and the administrators eum testamento anneceo filed their joint account in such court, which, after exceptions thereto had been overruled, was confirmed, with an order of distribution thereby accounting for all property which came to their hands, and the ancillary executor filed his final account in the surrogate’s court of New York, which after exceptions filed was stated and settled, and the amount charged him was charged against him on his account filed in this state as surviving executor, such decrees were res judicata, and the accounts in the States of New York and Pennsylvania would not be reopened and examined.
    7. The settlement of the final account of an administrator in the orphans court of a county in the state, who thereupon turned over the balance in his hands, except a specific legacy to complainant, which he paid to the executors, and the allowance of the executors’ account, by such court over the exceptions of complainant, precluded the court of chancery from reopening and re-examining the accounts.
    S. A devise of forty per cent, of property, consisting of land with a theatre building thereon, situated in Pennsylvania, appraised at $750,000, to the holder of the testator’s note for $35,000, did not discharge the debt, as the devise was not of the same nature as the debt, especially as the testator directed the payment of all his just debts; so that the estate of the devisee was not accountable for money received in Pennsylvania on account of a judgment on the note obtained in that state against the estate of the testator.

      9. A bill to charge executors for the difference between the selling price of property of an estate and its alleged true value at the date of the sale, conducted in an effort to see that dona fide bidders were there who would bid so as to procure the highest price for the property, brought more than seven years thereafter by complainant, who from a public record had knowledge of the executors’ account of the money received from the sale, and after the administrator and purchaser were dead and the situation was greatly changed, would be denied, on the ground of complainant’s gross laches, especially in view of subsequent events not showing any fraud or wrong-doing on the part of the executors.

      Mr. Charles C. Hendrick, Mr. William J. Leorm-d and Mr. Alexander Simpson, for the complainants.

      Mr. James D. Carton and Mr. Edmund Wilson,, for Piatt, executor, and Mr. Frank Patterson (of the Pennsylvania bar), for the Colonial Trust Company, defendants.
   Grirrin, V. C.

The above causes were tried before his honor, Lindley M. Garrison, vice-chancellor, but were not decided by him before he resigned to enter the cabinet of the president as secretary of war,- and were referred to me for decision.

The differences between the parties grow out of the administration of the estate of Henry M. Bennett under his will, the dealings between the parties touching property devised to them, an effort to have set aside a fund to raise an annuity of $1,800, and for an accounting. Both bills are substantially alike, excepting that the particular, relief sought by the McConnell bill touches the fund for raising the annuity of $1,800.

The bill of Laura Biggar, or Laura Biggar Bennett, seeks substantially the following relief:

1. To charge the McNulty and Gulick estates with the difference between the fair market value of her share in the Bijou Block, situated in the State of Pennsylvania, which, under the terms of the will of Bennett, was sixty per cent., the enjoyment of which was postponed until five years after the death of the testator, or sooner determination of the trust.

2. To set aside a lease of the Bijou Block made by Bennett to McNulty after the making of the will.

3. To set asi.de tlie contract dated May 13th, 1903 (erroneously stated in the bill “May 13, 1902”), as modified by the agreements of December 17th, 1904, whereby she agreed to transfer her sixty per cent, of the Bijou property to McNulty and Gulick, and otherwise agreed with respect to the property under the will of Bennett.

4. Eor an accounting of the rents of the Bijou Block.

5. 6. To reopen and- examine into the accounts of the ancillary executors in the States of New York and Pennsjdvania.

7. To reopen the accounts in the orphans court of Monmouth county whereby allowances were made to counsel, &c.

8. To compel McNulty’s estate to account for the moneys received in Pennsylvania on account of a judgment obtained in that state against the estate of Bennett upon a note of the deceased.

9. To compel the executors to account for the difference between the selling price of the Avon property and its alleged true value at the date of such sale.

The first, second and third heads aforesaid, for which relief is sought, may be considered together. The right thereto is claimed under the will of Bennett, the pertinent paragraphs of which are as follows:

“Twenty-Fifth. It is my will and I direct my executors, hereinafter named, to continue in business with R. M. Gulick in the management, operation and conduct of the Bijou Theatre, in the City of Pittsburgh, Pennsylvania, under the name of R. M. Gulick & Company, for the period of five years, on the same terms as heretofore, if the said R. M. Gulick should be willing to continue the same, namely—^one-third of the profits to go to the said R. M. Gulick and thirty dollars a week during the theatrical season. If the said R. M. Gulick should not wish to continue the said business on said terms, then my said executors are to continue it in their names as the representatives of my estate, for the same period of five years. The profits of the said business to be applied by my executors, first for the completion of the Bijou Building, in Pittsburgh, Pennsylvania, and then for the payment of the mortgage thereon, as provided in the next paragraph, said paragraph being number twenty-six.
“Twenty-Sixth. I give and devise to my executors hereinafter named in trust all that certain property and real estate, known as the Bijou Building and Bijou Theatre, situated on Penn avenue, near Sixth street, in the City of Pittsburgh, in the State of Pennsylvania, being a tract of land one hundred and twenty feet deep on Penn avenué and one hundred and sixty feet deep. Said trust being created for the following purposes, namely, to complete the said buildings, and to pay off the mortgage encumbrance now upon the same, and I hereby authorize, empower and direct my said trustees to collect the rents, issues and profits of the said buildings, of every kind apd character, and apply them, first, to the payment of the taxes as they shall become due upon said buildings, and the interest as it shall accrue upon said mortgage encumbrance. The balance of the rents, issues and profits of the said buildings to be applied and expended, by my trustees for the completion of the said buildings and for the payment and in satisfaction of the mortgage encumbrance thereon for the period of five years, unless the purposes of this trust shall have been satisfied, before that time.
“Twenty-Seventh. I give and devise unto Laura Biggar, of New York City, and Peter J. McNulty, of Pittsburgh, hereinbefore mentioned, to them and their heirs and assigns, forever, the lands and buildings in the last paragraph above mentioned, after the completion of the aforesaid trust, unless the said trust shall have been completed in less time than the period of five years aforesaid, in which case the title to said property is to immediately vest in said parties, and their heirs and assigns, forever, in the following proportions: Sixty per cent, interest in said property to Laura Bigger and forty per cent, in said property to the said Peter J. McNulty.
“Twenty-Eighth. In case the said Laura Biggar or Peter J. Mc-Nulty hereinbefore mentioned should die before the title to the Bijou Building and the Bijou Theatre vests in them, under this will then in that case, I give, bequeath and devise forty per cent, of said property to the children of Peter J. McNulty, share and share alike, to them and their heirs and assigns forever.
“And in case of the death of the said Laura Biggar I give, bequeath and devise thirty per cent, of said buildings and property to Willis J. Biggar, son of said Laura Biggar, upon his arriving at the age of twenty-one years, to him and his heirs and assigns forever. The other thirty per cent., in case of the death of said Laura Biggar, I give, bequeath and devise unto the Society for the Prevention of Cruelty to Animals of Asbury Park, to it and its successors and assigns forever, for the purpose of using the income thereof for the protection of dumb animals.
“Twenty-Ninth. I-authorize my said trustees, if they deem it expedient to construct a row of offices in the court over the dressing room of the Bijou Theatre aforesaid, and empower them to lower the theatre floor so that the same shall be on the ground floor of the building if they think best to do so.”

The testator died on April 11th, 1902. Some time prior to May 13th, 1903, Laura entered into negotiations with McNulty, one of the executors and trustees, and one Gulick, with a view to disposing of her sixty per cent, in the Bijou Building and Bijou Theatre (devised by the twenty-seventh paragraph) to McNulty and Gulick. These negotiations culminated in the execution of agreements on May 13th, 1903, as modified by the agreements of December 17th, 1904.

It seems that shortly after the probate of the will she asserted that she, being the wife of Bennett, became the mother of a child born after his death, which child had died shortly thereafter, and accordingly presented her petition to the orphans court of the count}' of Monmouth, setting forth the foregoing facts and praying that the decree admitting the will to probate be opened and for the establishment of her rights as widow and mother, which petition she withdrew.

In this situation McNulty and G-uliek appeared unwilling to deal with her unless she executed an agreement to stand by the will and not assert against it, and ratifying the lease which is here sought to be set aside,- and generally settling all differences touching the estate and their several interests therein. Such an agreement (Exhibit G 2), dated May 13th, 1903, was executed in the presence of witnesses by Laura, McNulty and Gnlick, one of the witnesses being C. C. Hendrick, one of her present counsel.

On May 13th, 1903 (Exhibit G 8), an agreement was executed by the same parties wherein Laura agreed to sell, and McNulty and Gnlick agreed to buy her sixty per cent, interest in the Bijou Building and Bijou Theatre for the sum of $240,000, subject to a mortgage of $200,000, then a lien upon the same. The agreement recited the terms of the will, and that doubts existed as to the title which Laura took on the date of testator’s death, and also the possibility of her death prior to five years from the date of testator’s death, and accordingly fixed the payments $100 on the signing of the agreement, $900 on July 1st, 1903, and $1,000 on the 1st days of January and July in the years 1904, 1905, 1906, and the 1st day of January, 1907, and upon the delivery of the deed $7,000; the payment of the residue, $225,000, to be secured -by a purchase-money mortgage on the premises, payable $25,000 on April 12th, 1908, and $200,-000 on April 12th, 1912, with interest at four per cent, from April 12th, 1907.

The agreement also sets forth that contemporaneously with the execution of the agreement, Laura executed the deed, which, with the agreement, were to be deposited with the Union Trust Company of Pittsburgh, who were empowered to make delivery of the deed on or after April 11th, 1907, upon the grantees complying with the conditions precedent to its delivery. Mr. Hendrick was also a witness to this agreement.

By two agreements between the same parties, both dated December 17th, 1904 (one being Exhibit A, contained in Exhibit D 1, the other Exhibit 0 li), the agreement of sale dated May 13th, 1903 (Exhibit OS), was modified by increasing the amounts of the installments to be paid, and reducing the amount of the mortgage to be given under this latter agreement, and -the two agreements of May 13th, 1903, as modified, were ratified. It is also stated therein that she (Daura) had the advice of Samuel S. Robertson, Esq., as counsel.

By the agreement thus constituted the burden of the debts of testator in Pennsylvania was imposed upon his estate and revenues from the property in Pennsjdvania, and the vendees agreed to take the lands without diminution of the purchase price to be paid by reason of such debts.

Laura afterwards neglected to perform her part of the contract, whereupon McNulty and Guliek, on August 3d, 1905, filed their bill of complaint in the court of common pleas of Allegheny county, No. 2, to compel her. to specifically perform. On June 27th, 1906, S. S. Robertson entered his appearance for the defendant (this complainant) and filed the following answer:

“I have carefully read over the said bill of complaint and I admit all the facts therein alleged and consent that a decree shall be made that 1 specifically perform the agreement, Exhibit A, attached to and made part of the bill of complaint.”

This answer is signed by the present complainant, Laura, and her solicitor, S. S. Robertson, and is sworn to by the complainant. The “Exhibit A" annexed -to the bill, is the agreement made on the 17th day of December, 1904, between Biggar, Mc-Nulty and Guliek, which was recorded in book 1266, page 323.

Upon this answer a decree was entered on August 4th, 1906, decreeing specific performance of the contract upon the complainant’s executing and delivering the purchase-money mortgage in the agreement mentioned; and provision is made for credit for payments. At the foot of the decree is the following:

“Pittsburgh, July 12th, 1906.
“I approve the within form of decree and consent that the same be entered forthwith. I also acknowledge having received the within mentioned mortgage.
“S. S. Robertson, “Solicitor for tie Defendant.”.

This decree is contained in the record of the suit which was offered in evidence as Exhibit D 1, and -under the federal constitution is entitled to full faith and credit, and is res. judicata on the same issues raised in this cause. Nothing has been shown in this case which in any manner impugns its effect, or gives this court the right to ignore it. The complainant is therefore entitled to no relief with respect to the contract of May 13th, 1903, as modified by contracts of December 17th, 1904, for the sale of the property.

On the 23d of July, 1907, Laura and Willis Biggar (he appearing by Mr. Hendrick as next friend) commenced suit against McNulty and Guliek in the court of common pleas of Allegheny county, No. 2 (Exhibit D 2). The bill comprises thirty-four printed pages, setting up substantially the same matter contained in the two present bills, as to the -agreements, conveyances and mortgage, and praying, among other things, that (1) the deed made by Laura to McNulty and Guliek, and the bond and mortgage given by McNulty and Guliek to her, be set aside, and that the property be sold to pay to the complainants the amount due them under the will; (2) that- the sum of $30,000 should be set aside by them from the rents, &c., of the Bijou Building and Theatre to produce the annuity of $1,800 a year. Appearances were entered, answer filed and issue joined, Mr. Hendrick appearing for the complainants. On August 4th, 1909, John J. Heard, Esq., appeared for the complainants and discontinued the suit,-and the same, by order, was discontinued, with costs.

In this record appears a power of attorney giving Mr. Heard power to assign the mortgage to the Shubert Theatrical Company and to settle and discontinue the suit.

On August 5th, 1907, Laura and Willis, by Mr. Hendrick, his next friend, filed a bill in the court of common pleas of Allegheny county, No. 2 (Exhibit 1)3), to set aside the lease made by Bennett to McNulty and Gulick. The cause being at issue was, on August 4-th, 1909, likewise discontinued, with costs.

On June 1st, 1909, Laura contracted to sell to the Shubert Theatrical Company the bond and mortgage, and on July 1st, 1909, executed an assignment conformable with the agreement, the consideration being $160,000 and an agreement by the assignee to assume the performance of any judgment which she might be directed to perform in a suit brought against her by one Isman in the court of common pleas, No. 3.

After all this transpired.and when, apparently to induce the acceptance of her assignment of the mortgage and realize the funds thereon, she discontinued both suits—not ignorantly, but with the advice of counsel—she now, after a period of upwards of a year after such discontinuance, seeks to renew the attack when conditions have completely changed. The Bijou property and the mortgage have long since been disposed of. McNulty and Gulick, who could have defended with full knowledge of the facts, were both dead when these suits were commenced. Their legal representatives could not possibly have the knowledge of the facts and the same facility as their deceased principals to repel the numerous charges of fraud made by the complainants against the deceased. The complainants might have had a hearing in the above court of competent jurisdiction, where the suits might have been tried in a manner fair to both sides, because McNulty and Gulick were then both living. The controversies between the complainants and McNulty and Gulick, touching the Bijou properties, the deed, mortgage, rents and lease were originated not later than several years before the commencement of the present suits. Hnder such a state of facts, the complainants have been guilty of such gross laches, that even if possible merit were shown, it would be unconscionable for this court now to entertain their plaint. Gray v. Gray, 39 N. J. Eq. 511; Bennett v. Finnegan, 72 N. J. Eq. 155; Medley v. Howard, 79 N. J. Eq. 93; affirmed, 79 N. J. Eq. 224; Sebring v. Sebring, 43 N. J. Eq. 59; Ten Broeck v. Jackson, 71 N. J. Eq. 582; Lutjen v. Lutjen, 64 N. J. Eq. 773; Givernaud v. Givernaud, 81 N. J. Eq. 66; Van Houten v. Van Winkle, 46 N. J. Eq. 380; 5 Pom. Eq. Jur., §§ 20, 21.

In my memorandum to counsel deciding the case, by inadvertence I stated that the suit (Exhibit D 2) instituted in Pennsylvania to set aside the deed given by Laura to McNulty and G-ulick under the decree for specific performance entered in the suit (Exhibit D 1), and also the suit (Exhibit D 8) to cancel the lease, were res judicata. This statement was erroneous, because both suits were discontinued by consent without a hearing. The statement, however, as to the bill to set aside the deed was immaterial, because the suit (Exhibit D 1) in which the decree for specific performance was entered, is res judicata; and as to the lease, this erroneous statement, according to the views I entertain, would not change the result.

Touching the fourth object, I fail to see any theory upon which complainants are entitled to an accounting here of the rents and income of the Bijou Building and Theatre. By the twenty-sixth paragraph of the will the Bijou Building and Bijou Theatre were devised to the executors upon the following trusts:

(a) To complete the buildings and pay off the mortgage on the same.

(b) To collect the rents, issues and profits of said buildings of every kind and character, and apply them in payment of— first, taxes on the building and interest on the mortgage; second, to apply the balance to the completion of said buildings and the satisfaction of the mortgage thereon.

This trust was expressly limited to the period of five years, unless its purposes were satisfied prior to the end of that period.

By the twenty-seventh paragraph testator devised the lands and buildings mentioned in the twenty-sixth paragraph to Laura Biggar and Peter J. McNulty in fee

“after the completion of the aforesaid trust, unless the said trust shall have been completed in less time than the period of five years aforesaid, in which case the title to said property is to immediately invest in said parties”

in fee, sixty per cent, to Laura and forty per cent, to Peter.

A fair interpretation of the intention of the testator displayed in the twenty-sixth and twenty-seventh paragraphs is that, knowing that these buildings were incomplete, and not knowing when he might die, nor the amount of work which might be necessary to complete them, as well as the amount which might be due on the mortgage at the time of his demise, he fixed the duration of the trust in the minimum as of the date of the completion of the buildings and the pajonent of the mortgage, and, in the maximum, at a period of five years, at the end of which latter period the trust should in any event cease, and the title vest in Laura and Peter, if then living, even though the buildings were then uncompleted or the mortgage not then fully paid.

■ If this interpretation be correct, then it is apparent that the testator did not intend that any part of the rents and profits of the Bijou Building and Theatre should fall into the residue or be used for the payment of legacies, and Laura would have the right to insist that these rents be applied in accordance with the terms of the will.

This leads 'to the question, did McNulty and Gulick, at least, as against Laura, have the right to insist on this application? By the terms of the agreement. (Exhibit OS) dated May 13th, 1903, Laura agreed that she

“by good and sufficient deed of general warranty, free, clear and discharged of any and all liens or encumbrances whatsoever excepting the mortgage hereinbefore recited [for $200,000] will and sufficiently grant and convoy unto the parties o'f the second part, their heirs and assigns in fee simple, all her right, title and interest, being sixty per cent, of in and to all the following described property.”

(It then refers to the will of Bennett and describes the property.) At the foot of the description is a general clause, as follows:

“It being the intention of the party of the first part that her right, title and interest of every kind whatsoever in and to the property above described * ♦ * shall be conveyed to the party of the second part, their heirs and assigns.”

Later on in the agreement is the following clause:

“It is -further understood and agreed that prior to 'the 12th day of April, 1907, all the rents of said property shall be collected by the executors and trustees under said will and that the party of the first part shall not be entitled to receive any part thereof, neither shall she be required to pay out of her own funds any taxes or assessments against said property prior to that date, but the same shall be paid by the trustees under said will.”

The agreement thus provided that no interest should be charged on the purchase-money before April 12th, 1907, and for the deposit of the deed, bond and mortgage with the depositary, to.be by it delivered on or after April lltli, 1907, as above stated.

By this agreement the parties plainly indicated that the trustees should collect the rents and apply them according to the trusts contained in the will; that Laura was to receive no benefit from them, and at the end of the five-year period, when the trust was at an end, McNulty and Gulick were to accept the property in the plight it was then in, after the trustees liad observed the trusts in the will in relation'thereto.

The evidence shows that in the negotiations of sale the property was appraised at $750,000. The debts of the decedent in Pennsylvania (which by the laws of that state were a lien on the lands for a period of two years from the death of decedent, and to extend beyond that period, suit must be brought within the two years) were estimated at $170,000. There was personalty in Pennsylvania amounting approximately to $20,000, which, when applied to the payment of debts, left $150,000, to be made out of the lands. Adding this $150,000 to the mortgage of $200,-000, reduced the free and clear value of the land to $400,000, and Laura’s sixty per cent, was based on this net valuation; so, that if the executors applied the rents for the purposes mentioned in the will, the debts would be an additional lien on the land.

By the agreement of December 17th, 1904 (Exhibit A, appearing in Exhibit D 1), the agreement of May 13th, 1903, was modified. Thereby the partial payments to be made to Laura were increased, and the amount of the mortgage to be given decreased ; the agreement also contained the following clause:

“It is further agreed between the parties hereto that all and singular the estate of said Henry M. Bennett, deceased, within the State of Pennsylvania shall be devoted to the payment of the'debts, liabilities and engagements of said estate without let, hindrance or interference on the part of said party of the first part, except that the said parties of the second part covenant and agree that the said debts, liabilities and engagements shall in nowise interfere with, impair or limit their liabilities to the party of the first part under the terms of this agreement, the said parties of the second part hereby undertaking and agreeing that the debts proven against the estate of Henry M. Bennett, deceased, in the audit of his account by his executors in the orphans court of Allegheny county, Pennsylvania, shall be paid out of said personal property and revenues of said estate within the State of Pennsylvania, without in any way charging the real estate hereinbefore mentioned to the detriment of said party of the first part, and that they will take title of said party of the first part on the terms and conditions hereinbefore mentioned, subject to a certain mortgage of two hundred thousand dollars ($200,000.00) against the real estate hereinbefore described.”

• In view of the foregoing it is apparent that after the execution of the above agreements, and the .consummation thereof, these complainants ceased to have any further interest in the Bijou rentals, except to the extent of having the debts in Pennsylvania discharged so that no recourse should be had to assets outside of that state to pay the same. This was done. McNulty and Gulick paid a balance of $131,000 of debts, to pay which there was no personalty in Pennsylvania. In addition to which, there -was such accounting in Pennsylvania as hereafter appears.

But apart from the fact that Laura disposed of all her interest in the Bijou property, the complainants contend that the rents should be brought into the accounting to raise a fund to be set aside to pay the annuity of $1,800 a year given her in the fifth paragraph of the will. This bequest, however, is merely a succession of legacies of $1,800 each (Merritt v. Merritt, 48 N. J. Eq. 1; affirmed, 61 N. J. Eq. 638), and cannot be charged against the specific devises of real estate. Anderson v. Anderson, 31 N. J. Eq. 560. This being tire case, she has no such interest, either as legatee-annuitant or residuary legatee, to ask an accounting of these rents.

As to the fifth and sixth objects, viz., to reopen and examine into the accounts of tire ancillary executors in the States of New York and Pennsylvania:

At the November term, 1903, of the orphans court of Allegheny county, Piatt, administrator pendente lite, filed his first and final account (Exhibit E19), showing a balance on hand of $22,346.66, which, by order of November 2d, 1903, was confirmed.

At the April term, 1904, of the orphans court of Allegheny county, McNulty, Piatt and Hawkins filed their'joint account as administrators cum testamento annexo (Exhibit El), covering their transactions down to November 30th, 1903, being a date subsequent to the making of the contract to convey (May 13th, 1903). This account covered the balance found due on the Piatt accounting as'above, $22,346.66, and the rentals received and cash received under the Bennett lease of the theatre, and exhibited a balance of $39,962.26.

On May 27th, 1904, the court, by its decree, overruled exceptions to the account, confirmed the same, and ascertained that the debts amounted to $166,179.95; that there was a deficiency of personal property to pay the same, amounting to about $131,-000; and ordered that the balance in the hands of the accountants be distributed among the creditors unless an appeal was taken in twenty days. A claim of McNulty’s on a note of Bennett’s, put in judgment for $41,667.50, was allowed, upon which he received $8,743.55, which will be considered hereafter.

Another account appears to have been filed in the orphans court of Allegheny county upon which a decree was entered November 24th, 1909 (Exhibit E), directing distribution of a balance of $3,894.97, unless an appeal was taken within twenty days.

McNulty and Gulick, as above stated, paid and discharged the $131,000, balance of unpaid debts in Pennsylvania, without recourse to any of the assets in New York or this state; nor are any such debts now charged against the property here.

By the foregoing, the executors (administrators cum testamento annexo) accounted for all the property which apparently came to their hands and distributed the same by order of a court of competent jurisdiction. Nothing is shown against either account to justify a denial to either of full faith and credit. ■ Under such circumstances, the decrees passing the same are res judicata.

Touching the accounts in New York: Piatt, as sole surviving ancillary executor, filed his final account in the surrogate’s court of New York on January 13th, 1908. About August 17th, 1908, Laura filed numerous exceptions to the account. On April 12th, 1910, the surrogate of that county, by decree, settled and stated the account, ascertaining that Piatt had in his hands $27,974.97, and ordered that-he pa}' the same to himself as executor in New Jersey, and upon so doing he should he discharged. The account of Piatt, filed in New Jersey, charges himself as surviving executor with this sum of $27,974.97, under date of May 19th, 1910, in full compliance with the above decree. This decree is a finality, and likewise res judicata.

As to the seventh object, viz., to reopen the accounts in the orphans court of Monmouth county, whereby allowances were made to counsel, &c.:

Pending the litigation over the will, John F. Hawkins was appointed administrator, and filed his final account in the orphans court of the county of Monmouth August 4th, 1902, which was passed and allowed September 4th, 1902. The balance shown in his hands was $12,436.05. He also claimed credit for $37,-483.8'5, the amount of specific legacies on hand for distribution. This consisted of jewelry, &c. The balance of $12,436.05 appears to have been paid over to the executors, for they filed their inventory April 9th, 1903, in which they charged themselves with cash received from John F. Hawkins, administrator of the estate of Henry M. Bennett, deceased, $12,436.05. The total amount, however, of this inventory is $34,323.77, the difference between the two items being the specific legacies, as I now recall it. I do not perceive that the complainants would have any claim to open the account of Hawkins on the ground of any fraud or mistake, because none such is shown; and it is a final account. Hawkins is dead. He turned over the balance in his hands, reserving merely the specific legacies for distribution. Laura was one of these specific legatees, and received her legacy. No other specific legatee is complaining; nor is it in any manner shown that all of the specific legatees did not receive that which was their right.

On January 14th, 1904, the executors filed their account in the orphans court of Monmouth county, to which exceptions were filed by Laura and one White, who is a legatee. This account was passed and allowed March 29th, 1906, the order stating, among other things, that “all exceptions thereto were either withdrawn or duly considered.” No fraud or negligence on the part of the executors, nor even error or mistake in the accounts, are shown; therefore, this court is precluded from reopening and re-examining the account. Shearman v. Cameron, 78 N. J. Eq. 532.

As to the eighth object, viz., to compel McNulty’s estate to account for the moneys received in Pennsylvania on account of a judgment obtained in that state against the estate of Bennett on a note of the decedent:

McNulty held the note of Bennett for $35,000. The note was sued on in the State of Pennsylvania and judgment entered thereon. The judgment was for $41,667.50, upon which Mc-Nulty (with other creditors in that state) received his distributive shares, which amounted to $8,743.55. The complainants assert that the giving of the devise and legacies to McNulty discharged this debt. I cannot accede to this view. In Heisler v. Sharp, 444 N. J. Eq. 167; affirmed, 45 N. J. Eq. 367, the vice-ordinary said: “If one, being indebted to another in a sum of money, does by his will give his creditor a sum of money as great as or greater than his debt, without taking any notice at all of the debt, this shall, nevertheless, be in satisfaction of the debt, so that the creditor shall not have both the debt and the legacy;” but he further says: “Very slight circumstances are considered to take a case out of its operation.” Thus where a testator directs that his debts shall be paid, &c. See, also, Van Riper v. Van Riper, 2 N. J. Eq. 1, which cites Relassis v. Uthwart, 1 Atk. 428, where it was held that a devise of land could not be taken in satisfaction for money, or vice versa.

Nnder the authorities cited, as the devises and bequests to McNulty were not of the same nature, quality or character as the debt owing by Bennett to McNulty, and as the testator directed the payment of all of his just debts, it seems clear that the said devises and bequests were not given in satisfaction of the debt. A contrary view, however, would not aid the complainants, because if the devises and bequests were in discharge of the debt, then there would be so much more money in Pennsylvania for distribution among the other creditors, who, on final disposition, were owing in gross about $131,000, which McNulty had to pay, and this reduction of payment would inure to the benefit of both McNulty and Gulick on their contract of purchase, in that thqre would be less debt to pay because by the agreements between Laura and McNulty and Gulick the estate in Pennsylvania was to be charged with the debts in that state. After the death of McNulty his executors presented their claim in New Jersey for the balance of this judgment, but, on discovering the true situation, the same was withdrawn, and no claim is now asserted against the estate here for any debt in Pennsylvania.

As to the ninth object, viz., to compel the executors to account for the difference between the selling price of the Avon property and its alleged true value at the date of such sale:

This property consisted of upwards 'of ninety-one acres, and had thereon a dwelling in which Mr. Bennett lived, and some buildings for help. About June, 1903, the executors extensively advertised this Avon property for sale. Hawkins, one of the executors (who died on May 4th, 1904), some two weeks before the sale, in a conversation with Mr. Carton (who was in no manner connected with the estate), told him that Mr. Gulick had been down to examine the property, and wanted to bid the property up to a certain figure, and asked Carton if he would represent him at the sale. Afterwards Carton met Gulick and received instructions from him as to the sums he should bid on the various parcels, and Carton did as directed, bidding in about ninety-one acres. Other parcels he did not purchase, because the prices bid were above his instructions. At this point it is apparent that there was no intent on the part of Mr. Hawkins to procure puffers for the sale; but, on the contrary, it seemed to be his purpose, in the performance of his duty, to see to it that bona, fide bidders were there who would bid in such manner as to procure the highest price for the property. In the account of the executors (Hxhvbit D 10), dated October 10th, 1903, the executors charged themselves as follows: “To cash received from the sale of real estate at Avon, New Jersey, $16,525.” This account was a matter of public record; the sale took place more than seven years before this bill was filed; it does not appear that the complainants did not have as much knowledge at or about the time of the sale as they possessed at the time of the filing of the bill.

Guliek, McNulty and Hawkins are all dead; and the situation is so changed that the gross laches of the complainants should now forbid inquiry into this transaction. But the subsequent events, which were spread upon the record, do not show any fraud or wrong-doing on the part of the executors.

After Guliek bought tire property he organized a land company, calléd the Lynore Land Company. This corporation was organized by Carton, a young man in his. Carton’s, office, and another man. They were all dummies. Carton subscribed for eight shares of the stock, and the others for one share each. These shares were afterwards transferred so that Guliek and Mc-Nulty could become directors of the corporation. No shares, it seems, were ever actually issued. The property was then transferred to the corporation. In the fall of 1909, Carton bought from the corporation seventy-one of the ninety-one acres for $18,000. The part he bought had the house upon it. If it should be assumed that the remaining portion of tire property was of the same relative value as that which Carton purchased, that'portion of the acreage would be worth about $5,000, making a total sum of value, when Carton bought, for all of the acreage, $23,000. Without considering the possibility of an increase in value in the six years from the date - of the sale until Carton bought, the interest alone on the purchase price of the property, paid by Guliek, added to what he paid, would amount to about $23,000. In addition to this, there were the taxes to be added. There is no testimony in the case which justifies the inference that the property did not, at the executor’s sale, bring its fair market value; nor can any inference be drawn from the testimony that the executors did other than their duty.

Tliis disposes of every matter, as I understand it, raised by the pleadings, excepting the present account pending in this court. This should be referred to a master to take and state the account.

I will advise a decree in accordance with the foregoing views.


author: Grieein, Y. C.

text:
    Henrietta Mattson v. James M. Mattson.
    [Decided December 31st, 1915.]
    If a petitioner for divorce does not enter a final decree upon becoming entitled thereto by reason of no cause being shown why the decree nisi should not be made absolute, a defendant may, by motion on notice, compel the petitioner to enter such final decree or suffer the decree nisi to be opened and the petition dismissed.

      Mr. Edivard O alces, for the petitioner.

      Messrs. Melosh & Morten, for the defendant.
   Grieein, Y. C.

A decree nisi in favor of the petitioner against the defendant in the above cause was signed June 6th, 1913, in an action for divorce on the ground of desertion. Since that time the petitioner has declined to enter the decree absolute in her favor; whereupon the defendant’s solicitor gave notice of a motion to compel the petitioner “either' to take a final decree or else to discontinue the above-entitled action.” More than two years have elapsed since the petitioner became entitled to enter her absolute decree upon the decree nisi.

I will advise an order that the decree nisi be opened and the petition dismissed, unless within thirty days from the date of the order the petitioner enters her decree absolute. Lewis v. Lewis (1892), L. R. P. & D. Div. 212; Boddington v. Boddington (1881), L. R. 6 P. & D. Div. 13; Ousey v. Ousey (1875-6), L. R. 1 P. & D. Div. 58.

Counsel may present an order in accordance with the ’above views at the chancery chambers, in the city of Jersey City, on Monday, January 3d next.


author: Grikrin, Y. C.

text:
    Colonial Building and Loan Association v. Margaret Griffin et al.
    [Submitted September 1st, 1915.
    Decided December 10th, 1915.]
    1. In a suit brought by the assignee of a mortgage executed by a married woman and her husband, comprising her own property, where she filed an answer, in the nature of a cross-bill, praying that the bill be dismissed and that the mortgage be declared not a lien upon her property, and for other relief upon the following grounds: “1. That she did not sign a mortgage to secure a pre-existing debt of her husband’s. 2. That she was induced to sign, as maker, a series of notes, and that the mortgage she gave to Max Sandt was to secure said notes and not to secure the debt of her husband, although she avers that said notes were given as part of the consideration for the saloon sold by the said Sandt to her husband. 3. That she never received any benefit to her use, or to the benefit of her separate estate, and that said notes and mortgage were invalid according to section 5 of the Married Woman’s act and the amendments thereto.”—Held, that the answer assumes that if the notes are void within the meaning of the fifth section of the act relating to the property of a married woman, the mortgage is likewise void as being embraced within the provisions of the same section.
    2. These assumptions, however, are erroneous in this, that while the contract contained in the notes, being purely executory (if within the statute), cannot be enforced, the conveyance by the mortgage, being executed, if given to secure the husband’s debt, is good, and her title in equity can be enforced.
    3. Inasmuch as the record shows that the wife was the maker of the notes, which were given as part consideration for the purchase of the saloon sold by the defendant to Sandt, the payee, to her husband, nothing appears to bring the case within the second proviso of section 5 of the Married Woman’s act, and therefore the notes are void.
    4. It is an established rule that when one gives an obligation which is void, or avoided, in payment or discharge of the existing obligation, the prior obligation continues and is enforceable.
    5. Therefore, when the husband delivered the void notes of his wife for the part of the purchase-money which remained unpaid at the confirmation of the sale, he was and continued liable to pay the balance of the consideration, being the identical sums mentioned in said notes to the vendor, and, being so liable, the notes and mortgage in question were given to secure the payment of the husband’s debt, with the result that the mortgagee had, before the assignment, good right in equity to foreclose the mortgage to pay this debt of the husband’s, and an assignee has a like right because he took by assignment the debt of the husband to sustain his right under the mortgage, although the husband’s right might not, in express words, have been assigned thereto.
    6. As the wife understood that she was giving a mortgage to secure' the payment of the unpaid purchase i>riee, and as this price was erroneously converted into her supposed debt, full justice will now be rendered to her by now treating the mortgage as valid for the debt which was intended to be secured.
    7. The answer does not disclose duress exercised by the husband upon his wife.
    8. Neither can the answer by way of cross-bill be sustained on the ground of misrepresentation, in that the wife’s husband told her that the signing of the notes and the mortgage by her was a matter of form and that he would take care of the notes, inasmuch as such language could not convey to the wife the idea that she would incur any liability by signing the notes and mortgage because of the last sentence, namely, “and that he would take care of the notes.”
    9. It will be presumed that the parties honestly intended that the notes and mortgage should be valid and that neither side intended to mislead the other.-
    10. The clear import of the language used is, that while the wife would be liable if the husband did not pay the notes, yet in effect, her signing would be a mere matter of form because he would pay them, thereby not only discharging her from what she understood was a personal liability on the notes, but relieving her lands from the lien of the mortgage.
    11. Moreover, the representation, for aught that appears, was secretly made by the husband to the wife, there being no allegation that the mortgagee joined in the representation or had any knowledge of it. To permit a wife in such a case to avoid her mortgage on the ground of false representations made to her by her husband secretly and without the knowledge or connivance of the mortgagee, where she had duly acknowledged the instrument after the contents had been made known to her, would tend to greatly weaken and impair mortgage security and is against public policy.
    12. Neither can the answer by way of cross-bill be sustained on the ground of undue influence. The true interpretation and meaning of such answer by way of cross-bill declared.
    13. In this state the certificate of the officer taking the acknowledgment is prima, facie evidence, and the burden of proof is on the wife to show it is untrue.
    14. Inasmuch as the married woman went before an officer designated by law to perform certain prescribed duties, and acknowledged the mortgage in due form of law on a private examination, separate and apart from her husband, she cannot now assert that, prior to such examination, her husband exercised the coercion which she charges, it not appearing that the mortgagee had any knowledge of the coercive acts of the husband and was in no manner a party to them, and had no reasons to assume that the facts contained in the certificate of the officer were untrue.

      Mr. John F. Marion, for the defendant Margaret Griffin.

      Messrs. Trcacy £ Milton, for the defendant George I. Macklin.
   Grikrin, Y. C.

Tlie complainant filed its bill to foreclose, making the defendant Margaret Griffin a party as mortgagor, and also making the defendant George I. Macklin a defendant as the assignee of a mortgage made by the said defendant mortgagor to Max Sandt, and assigned by said Sandt to Macklin.

The bill sets forth the making of the mortgage by said mortgagor and her husband to one Sandt on October 7th, 1912, to secure the payment of a note of $2,500, which mortgage was duly recorded; and also the assignment of the mortgage by Sandt to the defendant Macklin by assignment, dated March 31st, 1914, recorded April 1st, 1914.

The defendant Margaret answered the bill, and also filed an answer by way of cross-bill against the defendant Macklin, setting up that her husband, Joseph, was negotiating for the purchase of a saloon in Jersey City from the said Sandt; that he had been engaged in the saloon business in lower Jersey City, and was desirous of securing the store at the junction of Communipaw avenue and Grand street, and desired her to go to New York

“as it would be necessary for lier to sign some papers before he could obtain possession of the said saloon at the junction of Communipaw avenue and Grand street, Jersey City; that she demurred to executing any papers, informing her husband that as she had no interest in the transaction of the purchase of the saloon she did not think that she ought to be present at the negotiations or sign any papers. Upon her husband receiving her refusal he became greatly offended and charged her with standing in his way of taking advantage of a good opportunity. Not desiring to destroy her husband’s success in business, she consented to attend the negotiations for the purchase of the saloon.”

She then says that she went with her husband to an office in the downtown section of New York, which she wás informed was a law office;

“that there were present the lawyer, whom she did not know, her husband and a person she was informed was Max Sandt, and she was requested by her husband and the lawyer to sign some notes, which she was informed her husband was to give to said Max Sandt to secure the purchase price of said saloon; and at the same time she was requested to sign a mortgage to secure the payment. She again refused to sign said notes and mortgage, and her husband became very angry, and told her it was only a matter of form, that he would take care of the notes; and after considerable persuasion on the part of her husband and because of her fear to anger him, she consented to execute the necessary papers; that she did not sign a mortgage to secure a pre-existing debt of her husband’s, but on the contrary she was induced to sign as maker a series of promissory notes [the exact amounts and dates she does not now recall], and that the mortgage she gave to Max Sandt was to secure said notes and not to secure a debt of her husband’s, as reference to said mortgage will more fully appear; that said notes wore given to the said Sandt as part of the consideration for the said saloon sold by the said Sandt to her husband, and that she never directly or indirectly received any money, property or thing of value for her own use or benefit, or for the use, benefit or advantage of her separate estate, and that she never paid any of said notes as they came due, or was she ever requested to, nor had she ever paid any interest on any mortgage, or was she ever requested to, and that said notes and said mortgage are invalid according to section five of the Married Woman’s act and the amendments thereto.”

The defendant Macldin now seeks to strike out the part of tire answer filed by way of cross-bill, under rule 213 of this court, for want of equity.

The answer, in the nature of a cross-bill, sets forth the following upon which Margaret founds her right to relief, viz.: •

“1. That she did not sign a mortgage to secure a pre-existing debt of her husband’s. 2. That she was induced to sign, as maker, a series of notes, and that the mortgage she gave to Max Sandt was to secure said notes and not to secure the debt of her husband, although she avers that said notes were given as part of the consideration for the saloon sold by the said Sandt to her husband. 3. That she never received any benefit to her use, or to the benefit of her separate estate, and that said notes and mortgage were invalid according to section 5 of the Married Woman’s act and the amendments thereto.”

Her prayer is that the bill of complaint be dismissed as to tire particular mortgage made to Sandt, and assigned to Macldin, and that it be declared not a lien upon, the property, and for other relief.

The answer assumes that if the notes are void within the meaning of tire fifth section of the act relating to the property of married women, the mortgage is likewise void as being'embraced within the provisions of the same section. These assumptions, however, are erroneous in this, that while the contract contained in the notes, being purely executory (if within the statute), cannot be enforced, the conveyance by the mortgage, being executed, if given to secure the husband’s debt, is good, and her title in equity can be foreclosed. Warwick v. Lawrence, 43 N. J. Eq. 179, 184; Shipman v. Lord, 58 N. J. Eq. 380, 389; Walker v. Joseph Dixon Crucible Co., 47 N. J. Eq. 342, 345; Campbell v. Tompkins, 32 N. J. Eq. 170; Same Case, 33 N. J. Eq. 362; Ferdon v. Miller, 34 N. J. Eq. 10; Same Case (at p. 531); Galway v. Fullerton, 17 N. J. Eq. 389; Merchant v. Thompson, 34 N. J. Eq. 73; Davidson v. Biddleman, 82 N. J. Law 92.

The record discloses that the wife was the maker of the notes, which were given as part consideration for the purchase of the saloon sold by Sandt, the payee, to her husband. Nothing appears to bring the case within the second proviso of section 5 of the Married Woman’s act, and therefore the notes are void. Vleit v. Eastburn, 63 N. J. Law 450, 454; Same Case, 64 N. J. Law 627.

Assuming that the mortgage is void if there exists no debt secured thereby (Bliss v. Cronk, 62 N. J. Eq. 496; Same Case, 68 N. J. Eq. 655), the question arises, is there such debt?

It is an established rule that when one gives an obligation which is void, or avoided, in payment or discharge of an existing obligation, the prior obligation continues and is enforceable. Executors of Williams v. Williams, 15 N. J. Law 255, 258, and cases therein cited; Leonard v. Trustees of First Congregational, &c., 2 Cush. 462, and cases therein cited.

Therefore, when the husband delivered the void notes of his wife for the part of the purchase-money which remained unpaid at the consummation of the sale, he was and continued liable to pay the balance of the consideration, being the identical sums mentioned in said notes to- the vendor*, and being so liable, it may be said that the notes and mortgage in question were given to secure the payment of the husband’s debt; with the result, under the authorities above cited, that in the absence of the other defences set up in the answer by way of cross-bill, the mortgagee had, before the assignment, good right in equity to foreclose the mortgage to pay this debt of the husband’s; and his assignee, under the circumstances of this cáse, has a like right, because he took by assignment the debt of tire husband to sustain his right under the mortgage, even though the husband’s debt might not, in express words, have been assigned thereby. 1 Jones Mort. 641 § 889.

The ease of Bliss v. Cronk, supra, is not contrary to the views above expressed, as the wife here fully comprehended the transaction. She gave her notes, assuming them to lie valid, and executed her mortgage to secure the payment of the moneys mentioned in the notes, which really constituted the debt of her husband. Now, after the mortgagee has parted with the title and possession of the property sold to the husband on the faith of the security delivered, the wife has discovered that the notes are void, and now seeks to avoid her mortgage on the ground that the notes, being void, the mortgage is likewise. A court of equity in such case will look at the substance and give effect to the admitted intentions of the parties, rather than follow the erroneous form adopted for carrying them into effect, which might lead to injustice, especially where there is no fraud or conduct which might move a court of equity to refuse its aid, and where the rights of innocent parties are not affected. If these views be correct, then, as the wife understood that she was giving a mortgage to secure the payment of the unpaid purchase price, and as this price was erroneously converted into her supposed debt, full justice will be rendered to her by now treating the mortgage as valid for the debt which was intended to he secured.

The answer by way of cross-bill further attacks the validity of the mortgage, alleging matter amounting to an assertion that the wife executed the mortgage under duress, misrepresentation and undue influence.

Tt is quite clear that the answer does not disclose duress exercised by the husband upon his wife, Margaret. In Remington v. Wright, 43 N. J. Law 451, where the husband made a threat of suicide to induce, his wife to sign a promissory note, the chancellor, speaking for the court of errors and appeals, said: “By the common law, the defence of duress, indeed, embraced threats of injury to husband, wife, parent or child; but its scope does not include a threat of suicide. Obviously, in view of the facility of making a defence on the ground, the difficulty of meeting it, and the temptation to fraudulent imposition it would hold out to allow it, it would be against public policy to extend the defence to that kind of pressure.”

In Lomerson v. Johnston, 44 N. J. Eq. 93, creditors of a husband induced his wife to join with him in giving a mortgage on her real estate to secure his debt by telling her that her husband liad been guilty of the crime of embezzlement for which he could be imprisoned, such statements creating fear and apprehension in the mind of the wife. 'Vice-Chancellor Bird said: “It is

plain that pressure which does not amount to duress at common law may be considered in equity sufficient to set aside or to resist a contract,” and finding that there was such undue pressure exerted upon her'by the complainant as to destroy her free agency in the execution and acknowledgment of the mortgage, declared it void. The court of errors and appeals, however, on appeal, in 47 N. J. Eg. 312, said: “The court of chancery, by its decree^ set aside the mortgage * * * considering that it was executed under a species of duress. With the result reached we agree, resting our decision, however, upon the ground that it is inequitable to permit the complainant to retain a security for the husband’s debt obtained by allowing a false apprehension of the husband’s danger to affect the mind of the wife.”

In Ball v. Ball, 79 N. J. Eq. 170, the court of errors and appeals reaffirmed the doctrine of Lomerson v. Johnston, supra,.

The answer, by way of cross-bill, therefore, cannot be sustained on the ground of duress.

As to misrepresentation: In the two latter cases cited, it appeared that the party benefited actively joined in the transaction condemned. Here the wife says that her husband told her that the signing of the notes and the mortgage by her was a matter of form, and that he would take care of the notes. This language could not convey to the wife the idea that she would incur no liability by signing the notes and mortgage because of the last sentence, viz., “and that he would take care of the notes.” Tt may be assumed that both husband and wife were unacquainted with the provisions of the Married Woman’s act above mentioned, and both understood at the time the notes and mortgage under discussion were delivered to the payee-mortgagee as the consideration of the property purchased by the husband, reciprocal rights and liabilities were created therein.

It will be presiimed that the parties honestly intended that the notes and mortgage should be valid, and that neither side intended to mislead the other. Mayer v. Roche, 77 N. J. Law 681, 684. The defence now interposed is an afterthought. The clear import of the language used is that while the wife would be liable if the husband did not pay the notes, yet, in effect, her signing would be a mere matter of form because he would pay them, thereby not only discharging her from what she understood was a personal liability on the notes, but relieving her lands from the lien of the mortgage.

But if the above interpretation is strained, still there is no defence under this head shown in the answer by way of cross-bill. The representation, for aught that appears, was secretly made by the husband to> the wife. There is no allegation that Sandt, the mortgagee, joined in the representation or had any knowledge of it. To permit a wife, in such a case, to avoid her mortgage on the ground of false representations made to her by her husband secretly and without the lmowledge or connivance of the mortgagee, where she duly acknowledged the instrument after the contents had been made known to her (the effect of which wjll be discussed later), would tend to greatly weaken and impair mortgage security, and is against public policy, within the reasoning of the chancellor in the above excerpt from the opinion in Remington v. Wright, supra.

The last question to be considered is that of undue influence.

The bill does not allege the acknowledgment of the mortgage; the answer by way of cross-bill does not assert that it was not acknowledged. As this allegation should be pleaded by the one who seeks to take advantage of it, I will assume, on this motion, that prior to recording, the mortgage was duly acknowledged in the manner required by law, and that the only grounds upon which the wife seeks relief are those stated in her answer in the nature of a cross-bill. Marsh v. Mitchell, 26 N. J. Eq. 497, 499 ; Same Case, 27 N. J. Eq. 631.

Treating her failure to allege that she did not acknowledge as an admission on this motion that she did, the case, most strongly stated in her favor, is as if she should say, “My husband, by undue influence, coerced me into signing the mortgage, and likewise in acknowledging before the officer that I signed, sealed and delivered the mortgage as my voluntary act and deed, the contents having first been made known to me by the officer, and that upon a. private examination, separate and apart from my husband, I further acknowledged that I so signed, sealed and delivered the mortgage freely and without any fear, threats or compulsion of or from my husband; that the officer thereupon signed the certificate of acknowledgment in testimony of its truth, and the certificate is true; Mr. Sandt, the mortgagee, neither took part in the coercion, nor did he know that my husband procured me to execute and acknowledge the mortgage by the use of any influence which might be considered undue, but, on the contrary, accepted the mortgage in good faith in the belief that all legal formalities had been complied with, and that the mortgage was good. Now, after more than two years, when the mortgage, by assignment, has come to the hands of an innocent purchaser, I desire to have the mortgage declared void as procured by this coercion.”

In Corby v. Drew, 55 N. J. Eq. 387, 390, Vice-Chancellor Stevens said: “At common law the wife could only pass her freehold estate by fine and common recovery.” The first act providing for an acknowledgment by the wife was passed in 1743. Another act was passed June 7th, 1799 (Elm. Dig. 88 § 12), and the act to abolish fines and common recoveries was passed June 12th, 1799. Elm. Dig. 90 § 56. The statutory acknowledgment was thereby substituted for the procedure of levying a fine to pass the feme covert’s estate, and the facts to be ascertained by the officer before he signs the certificate, are the same as were required to be found by the judge before he permitted the fine to be levied. Hitz v. Janks, 128 U. S. 297, 298; 8 Sup. Ct. Rep. 143 (146). On the levy of the fine neither the wife nor her heirs could bo permitted to 'aver that she was not examined and did not consent, “for this/’ says Lord Coke, “should be against the record of the court and tending to the weakening of the general assurances of the realm.” Yet, if any fraud or undue practice was used in obtaining the fine, the court of chancery would relieve against it, as against any other conveyance. Hitz v. Jenks, supra, citing eases supporting the doctrine.

In this state the certificate is prima faqie evidence of its contents, and the burden of proof is on the wife to show that it is untrue. But with this point I have no concern, because the ease as presented admits its truth; but the wife seeks to overcome her deed on the ground of the coercion above mentioned. The case of Young v. Duval ei al., 109 U. S. 573; 3 Sup. Ct. Rep. 414, was a case very much like the present. There the wife sought to set- aside her deed because she was required, ordered and commanded to sign the same by her husband and a person who was with him; and also because the contents of the deed were not explained to her, and she was not examined separate and apart from -her husband. The grantee was not present, knew nothing about the coercion of her husband, nor of any defect in the acknowledgment. In that case, the court seemed to consider that if the certificate was true the wife could not obtain relief, and dealt particularly with the probative force of the certificate and the duties of the officer in making it. The court said (at p. 416) : “The duties of that officer were plainly defined by statute. It was incumbent upon him to explain the deed fully to the wife, and to ascertain from her whether she willingly signed, sealed and delivered the same, and wished not to retract it. The responsibility was upon him to guard her against coercion or undue influence upon the part of the husband, in respect of the execution and delivery of the deed. To that end he was required to examine her privately and apart from the husband. These facts were to be manifested by a certificate under his hand and seal. Of necessity, arising out of considerations of public policy, his certificate must, under the circumstances disclosed in this case, be regarded as an ascertainment, in the mode prescribed by law, of the facts essential to his authority to make it; and if, under such, circumstances, it can be contradicted, to the injury of those who in good faith have acted upon it—upon which question Ave express no opinion—the proof to that end must be of such a character as will clearly and fully show the certificate to be false or fraudulent. Insurance Company v. Nelson, 103 U. S. 544, 547. The mischiefs that Avould ensue from a different rule could not well be overstated. The cases of hardship upon married women that might occur under the operation of such a rule are of less consequence than the general insecurity in the titles to real estate Avhich would inevitably follow from one less rigorous.”

The reasoning of the foregoing case is also in line with the vieAvs of tire court of errors and appeals, as expressed by the chancellor in the case of Remington v. Wright, supra, and is cited Avitli approval in Hitz v. Jenks, supra.

It seems to me that when this lady went before the officer Avhose duty, prescribed by law, was as above stated, and acknowledged the mortgage in due form of law, on a private examination separate and apart from her husband, she cannot now assert that prior to such examination her husband exercised the coercion which she charges—it not appearing that the mortgagee had any knowledge of the coercive acts of the husband, was in no manner a party to them, and had no reason to assume that the facts contained in the certificate of the officer were untrue.

As the defendant Margaret, on the facts pleaded, is not entitled to the affirmative relief prayed for, I will advise an order striking out the ansAver by way of cross-bill.


author: Grhttn, Y. C.

text:
    John Antonio D’Elissa v. Rose D’Amato, individually, and as administratrix, &c.
    [Submitted May 12th, 1915.
    Decided May 21st, 1915.]
    1. In a suit by a vendee against a vendor’s heirs-at-law and personal representative for the specific performance of an oral agreement for the sale of lands entered into between the vendor in his lifetime and the complainant, where it appears that the contract has been clearly, definitely and unequivocally proven, and has been performed by the complainant, this court has power to decree specific performance, even though the contract be oral.
    2. The complainant, under the circumstances of this case, 'is not guilty of laches in failing to obtain a deed or bring this suit during vendor’s lifetime.
    3. The defendant, as administratrix, held a sale of lands of the deceased, and sold the lands in question to one T., who is not a party to this suit, and who paid a deposit. Prior to the sale the complainant asserted his claim to defendants and it was understood that he should bring suit to establish his claim. At the sale the complainant stood by and, saw the premises struck off to T. without publicly asserting his claim. The sale has not been confirmed or deed delivered.—Held, (1) that T. not being a party to this suit, is not bound by the decree; (2) the defendants cannot avail themselves of any estoppel which might exist in favor of T.

      Mr. Anthony Bo Hi, for the complainant.

      Messrs. Blah email cG Scarrano, for the defendant.
   Grhttn, Y. C.

The bill in this cause is filed against the widow, heirs-at-law and administratrix of Francesco D’Amato, for the specific performance of an oral agreement for the sale of lands entered into between said Francesco D’Amato in his lifetime, as vendor, and the complainant, as vendee, for the consideration of $800.

The agreement was discussed on August 27th, 1905, and the terms settled upon. On the following day the vendee paid the vendor $100, and it was then and there agreed that the vendee might immediately enter into possession, and he so entered the next day, began filling in and grading the lands, fencing the same, and erecting buildings thereon, and has continued in possession ever since, without any claim for rent or other charge for use and occupation being asserted against him.

The balance of the purchase price was paid by two checks of $300 each, dated March 22d and 23d, 1906, respectively, drawn by the complainant to the order of D’Amato, delivered to him and actually paid by the bank upon which, they were drawn, and the delivery of a horse by the. complainant to D’Amato at the agreed price of $100.

The complainant from time to time asked D’Amato to give 'him a deed, but D’Amato explained, first, that he would do so when he discharged a mortgage covering the premises, and later, when about to discharge it and execute another which, would cover other property, he said he would give the deed after canceling the existing mortgage. Again, when asked for a deed, he said by mistake he had executed the new mortgage covering the premises, in question and other property; and thus the matter rested until after D’Amato’s death, on December 26th, 1913.

The parties were close personal friends, and as D’Amato had his money and complainant had the land, evidently they considered that the mere delivery of the deed could wait until D’Amato procured a release of the mortgage.

The contract has been clearly, definitely and unequivocally proven, and, having been performed by the complainant, this court has power to decree specific performance, even though the contract be oral. Wharton v. Stoutenburgh, 35 N. J. Eq. 266; Clement v. Young & McShea Amusement Co., 69 N. J. Eq. 347; 1 Pom. Eq. Jur. § 103.

The defendants also claim that the decree should be in their favor because of the laches of the complainant in failing to obtain a deed or bring this suit during the lifetime of Francesco, who was familiar with the whole transaction. I do not agree with the defendants in this claim. The undisputed evidence, received without objection, clearly proves, first, full performance by the complainant; second, the entry into possession of the lands with the assent of Francesco; third, complainant asked repeatedly for a deed;, and Francesco made excuses for not complying; fourth, tire improvement of the lands bjr expenditures by the complainant to an amount more than double the purchase price of the lands; fifth, the failure of Francesco to demand rent or other charge for the use and occupation of the premises; sixth, in fact, the utter abandonment of the premises to the complainant. All of this makes the complain ant's right so clear that to apply the doctrine of laches would aid in the perpetration of a fraud.

The defendants also assert an estoppel against the complainant under the following state of facts: The administratrix offered a number of lots for sale, including the premises in question. D'Elissa, they say, stood by without protest, and heard the premises struck off to Philip Tumulty for $2,300, who paid a deposit of $230. There is no evidence, however, that the sale has been confirmed in the orphans court and a deed delivered. Nothing in this suit can affect any right which Mr. Tumulty maj have, he not being a partj^ hereto. The estoppel, if it rises at all, must be between tire parties to this suit; and it is admitted that prior to the sale a question arose between the complainant and defendants as to the ownership' of the property; that D'Elissa asserted his claim, and there was an understanding between counsel that a bill should be filed to settle the dispute. Under such a state of facts I fail to see upon what theory the defendants can claim the benefit of an estoppel in their favor against the complainant. As to the wife, she did not join in the agreement and was not a party to it, .and the decree should not go against her, individually, directing her to convey her dower. As the contract was fully performed, and there is no purchase-money to be paid to the administratrix, the bill will be dismissed as against her, individually, and as administratrix.

I will therefore advise a decree directing the heirs-at-law to specifically perform.