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    Edward A. Ransom, trustee, v. Andrew H. Brinkerhoff, Garrabrant R. Alyea and their wives, and The Hillside Cemetery Association.
    [Filed November 18th, 1897.]
    1. Upon the facts stated in the opinion — Held, that the lands were not bona fide aliened by the executors and devisees of the testator, the whole arrangement being a family settlement.
    2. The lands having been sold under execution, a hill was filed to set aside the deeds, and G. and the cemetery association were made parties with the widow and children. In the suit on the bond the only issue touching the lands had been whether the devisees received any benefit from them, and the jury had found that the lands were only of the value of $1. — Held, that the issue as to whether the lands were aliened in good faith was not res judicata, and the burden was on G. and the association to prove valuable considerations.
    3. The widow and E. having surrendered their $6,000 mortgage to escape liability as devisees, and having actually escaped it, the parties to the suit on the bond were estopped to assert that any consideration was paid, and at least the lands not conveyed to the cemetery association were left liable to execution.

      4. Where the lien cast upon lands for the debt of the ancestor, by the act for the relief of creditors against heirs and devisees, is enforced, the creditor is not entitled to the benefit of any positive additions put upon the lands by the heir; and, other things being equal, the heir, in consideration of the rents and profits, must keep down the taxes and encumbrances.
    5. Assessments for benefits caused by public improvements must be allowed to the heir.
    6. Where a surety on an administrator’s bond thereby admits himself to be-presently indebted to the ordinary in a specific sum, for the use of certain infants, unless the administrator shall duly perform his duties as such, the surety becomes indebted as soon as the administrator makes default, so as to-bind his lands, in case of his decease, though judgment on the bond has not been rendered.
    7. The existence of stock or shareholders in a cemetery association is not contemplated or authorized by the act providing for the organization of such associations, and is not consistent with the scheme of that act; and such scheme is not altered by the supplement of March 4th, 1879; and certificates-of stock issued by such an association can have no greater effect than as acknowledgments of indebtedness.
    Final hearing on pleading and proofs.

      Mr. James B. Vredenburgh and Mr. Edward A. Ransom, for the complainant.

      Mr. Luther Shafer, for the defendants.
   Pitney, V. C.

This is, in effect, a bill by a purchaser of real estate at sheriff’s-sale, to set aside a conveyance made by the defendants in execution prior to the entry of the judgment, on the ground that such conveyance was without consideration, and void as to the-judgment creditor.

The facts of the case are complicated.

The complainant is the oldest son and heir-at-law of Stephen B. Ransom, deceased, who, as trustee, took a conveyance from Addison Ely, who purchased the premises at sheriff’s sale intrust for the real parties in interest.

The judgment under which the sale took place was in favor of the ordinary to the use of H. F. Watson and T. P. Watson, against the heirs, who were also the devisees, of George C. Brinkerhoff, deceased, viz., Kezia Yan Riper, Andrew H. Brinkerhoff, Ellen Berry and Martha Alyea, upon a bond given by one Frederick A. Watson as principal and George C. Brinkerhoff as surety, conditioned for the faithful performance by Watson of the duties of administrator of James S. Watson, the father of the cestuis que trust, H. F. and T. P. Watson.

Watson, the testator, died in 1872, and Brinkerhoff, the surety on the bond, died in March, 1879, seized of a tract of land containing about one hundred and fifty acres, seventy acres of which are meadow land and eighty acres are upland, and upon which were 'a dwelling-house and outbuildings. The upland was in the southerly edge of the city of Rutherford. At his death the eighty acres of upland were encumbered by a mortgage of $12,000 held by the Mutual Life Insurance Company. The seventy acres of meadow were unencumbered.

By his will, made shortly before he died, the decedent devised the use of the land in question to his widow, Kezia, for her life, if she remained single, but if she married — which she has done— then the use of one-third for life. Subject to this provision in favor of his widow, he gave to his daughter Ellen $15,000 and to his son Andrew $20,000, and ordered the residue to be equally divided among the three children. He appointed his widow and Ellen and Andrew executors, with power of sale, and stated as a reason for- giving Ellen and Andrew a preference over Martha that he had already advanced large sums to her.

That tract of one hundred and fifty acres is the one here in question, and was conveyed by the executors and devisees, namely, the children and widow of the deceased, to Thomas W. Alyea (the nephew of Garrabrant R. Alyea, husband of Martha), by deed dated April 22d, 1882, for the named consideration of $10,000, and, by deed of the same date, Thomas W. Alyea conveyed the same to Andrew H. Brinkerhoff and Garrabrant R. Alyea, the consideration named being also $10,000.

The object of the bill is to set aside these conveyances, and one made by Andrew H. Brinkerhoff and Garrabrant R. Alyea to the cemetery association, presently to be mentioned, on the ground that they were not alienations ‘ in good faith which exempted the lands from execution upon a judgment founded on the debt of the devisor under the second section of the “Act for the relief of creditors against heirs and devisees.”

Andrew Brinkerhoff and. Garrabrant Alyea executed a mortgage on the same premises, bearing the same date — April 22d, 1882 — to the widow, Kezia, and to Ellen Berry, for $6,000, which was declared to be for a part of the consideration money of the conveyances just mentioned, and that the amount was due in equal proportions to the widow Kezia and to the. daughter Ellen. In point of fact, no consideration, other than this’mortgage, was paid for these conveyances. These papers were all executed at or shortly after the day they bear date, but were not recorded until the 7th day of November, 1883.

About the time of the execution of these two conveyances and this mortgage the defendants Andrew H. Brinkerhoff and Garrabrant R. Alyea organized the Hillside Cemetery Association (defendant herein) under the general statute, and by deed dated December 1st, 1883, acknowledged on the 30th of April, 1884, by Andrew H. Brinkerhoff and wife and Garrabrant R. Alyea, and on the 10th of July, 1884, by Martha Alyea, and recorded August 26th, 1884, conveyed to it about forty acres of the whole tract, being a piece nearly square in shape, out of the north corner, and being, in point of fact, the most valuable part of the land, including the mansion-house and buildings. This conveyance was declared to be subject to three mortgages — the one to the Mutual Life Insurance Company for $11,000, the one to Kezia and Ellen for $6,000, and a third, presently to be mentioned, for $3,000, to a Mrs. Noble, but did not, in terms, assume the same.

For a payment made on account, the Mutual Life Insurance Company, the holder of the first mortgage, released November 12th, 1883, from the effect of that mortgage about six acres at the northerly corner of the forty-acre lot conveyed to the cemetery association; at the same time the holders of the $6,000 mortgage released the same six acres from their mortgage. After the execution of these releases, but before the conveyance to the cemetery association, Brinkerhoff and Alyea borrowed from a Mrs. Noble $3,000 and executed to her their bond and mortgage, dated November 8th, 1883, upon the six-acre tract above mentioned, being the mortgage mentioned in the deed to the cemetery association.

The result of these conveyances and mortgages was that the cemetery association held the six-acre tract subject only to the Noble mortgage, and held the remaining thirty-four acres of the forty-acre tract subject, with the remainder of the eighty acres of upland, to the payment of the $11,000 due on the mortgage to the Mutual Life Insurance Company and the $6,000 mortgage to the widow and daughter.

The $3,000 borrowed from Mrs. Noble was paid into the treasury of the cemetery association (prior to the execution of the deed to it), and was used to pay the arrears of interest and costs to the Mutual Life Insurance Company and $1,000 on the principal of their mortgage, reducing the debt to $11,000. In consideration of this payment the insurance company released, as we have seen, the six-acre lot covered by the Noble mortgage, which lot was subsequently actually used for cemetery purposes. Moneys were expended on that six-acre lot in preparing and laying it out in lots for a cemetery, and considerable sales of burial plots have been made and moneys received therefor.

The consideration expressed in the deed from Brinkerhoff and Alyea to the cemetery association was $75,000, but, in point of fact, no consideration in cash was ever paid. The stock of the association to that amount — $75,000—was issued wholly to Brinkerhoff and Alyea, and almost all of it is held by them, a few shares only being held by other persons who act as directors and officers with Brinkerhoff and Alyea. The several deeds of conveyance from the heirs to Thomas W. Alyea, and from Thomas W. Alyea to Andrew H. Brinkerhoff and Garrabrant R. Alyea, and from the latter to the Hillside association, all mention the mortgage to the insurance company. In the first two deeds the mortgage is merely mentioned by way of description of the premises — that they are the same premises mortgaged to the insurance company. The deed to the cemetery association declares that the premises are conveyed subject, nevertheless, to three mortgages now on the premises,” mentioning them. There is nowhere in the three deeds in question any clause which can be construed to be an assumption by the grantees of the mortgages or either of them. At the hearing, however, Mr. Gr. R. Alyea swore that the verbal agreement between him and Brinkerhoff and the cemetery association was that the forty-acre tract conveyed to the cemetery association was to assume all those mortgages, and that the forty acres of upland which they retained were to be free and clear; but that it was not a part of their plan to ask the insurance company to release those forty acres upon the mere security of the'forty acres conveyed to the cemetery association, and they still remain subject to it. The meadow land, as we have seen, is free from encumbrance.

The suit upon the bond was commenced by summons returnable on the 9th of July, 1890, and served upon each of the defendants. The declaration in that suit, after alleging the making and the breach of the bond, stated that the deceased Brinkerhoff died seized of valuable real estate situate in the township of Union, in the county of Bergen, of the value of $50,000, which he by his will devised to Kezia Van Riper, Ellen Berry, Andrew H. Brinkerhoff and Martha Alyea, which lands and tenements the said devisees still hold. The defendants all appeared, and joined in one pleading containing several distinct pleas. The first plea was non est factum, putting in issue the making of the bond. Second, they denied the breach of the bond by the administrator, and alleged that he performed all the conditions of it. In the third plea, A. H. Brinkerhoff and his sister, Mrs. Berry, severed from Mrs. Van Riper and Mrs. Alyea, and set up rien pur devise, except the equity of redemption of a farm of about one hundred and forty acres, which at the time of the death of Brinkerhoff was of small value, to wit, $1 and no more, and which before the commencement of the suit the said defendants sold, aliened and made over. The fourth plea was by the defendant Kezia Van Riper, likewise a plea rien pur devise, except a life estate in one-third of the equity of redemption of the farm in question, which at the time of the death of Brinkerhoff was and now is of small value, to wit, $1, and which before the commencement of the suit the defendants sold, aliened and made over. Fifth, Martha Alyea pleaded separately, setting out the will of Brinkerhoff in extenso, rienpur devise, except the equity of redemption in the tract in question, which was insufficient to pay the preferential devise in favor of her brother Andrew and sister Ellen; and that the defendant in fact had received no part of the real and personal estate of Brinkerhoff as devisee. Sixth, Andrew and Ellen also pleaded separately, setting out the will in full, and' stating that the property devised was of small value, to wit, $1 and no more, and that it was insufficient to pay to Andrew and Ellen their preferential legacies, and that the defendants had never received any part of the estate of George C. Brinkerhoff as devisees under his will.

The plaintiffs in their replication took no notice of the allegation that the defendants had aliened and made over the lands, but joined issue as to their value.

In the month of August, 1890, and at about the time the pleas in this suit were due, the mortgage for $6,000 given by Garrabrant R. Alyea and Andrew H. Brinkerhoff to Kezia Van Riper and Ellen Berry was canceled of record, and Andrew conveyed his one-half interest in the one hundred and ten acres not conveyed to the cemetery association to Alyea for the expressed consideration of $1, and after the verdict in the suit Alyea reconveyed this one-half interest to Brinkerhoff for a like expressed consideration of $1.

The issues raised by the pleadings were tried in December, 1890, and judgment rendered February 17th, 1891, in favor of the plaintiff, for $50,000, the penalty of the bond, to be levied of the lands, &c., of which George C. Brinkerhoff died seized. The postea shows that the jury found (1) that the bond was the deed of George C. Brinkerhoff, deceased; (2) that Frederick Watson, the administrator, did not well and truly administer, &e., the goods and chattels, &c., of James S. Watson, deceased, that came to his hands; did not make a just and true account of his administration thereof; did not in all things well and truly perform his duties as such administrator; (3) that the value of the farm that came to the two defendants Andrew H. Brinkerhoff and Ellen Ann Berry, subject to the life estate of Kezia Van Riper, was $1 and no more; (4) that the life estate of the defendant Kezia Van Riper in the equity of redemption was the value of $1 and no more; and further (5) that the defendant Martha Alyea did receive by devise and have divers lands and tenements of George C. Brinkerhoff as devisee under his last will and testament to the value of $1 and no more, in manner and form as the said plaintiff'hath in that behalf alleged.

After the entry of this judgment the defendants applied to the ordinary to assess the damages to be levied, and the ordinary ascertained the damages at the sum of $39,764.81, as of the 25th of August, 1892.

It further appears in the proofs made at the hearing that the defaulting administrator was called to account in the orphans court in the lifetime of George C. Brinkerhoff, and with his knowledge, and that he was then found in default; and further, that in the fall of the year 1883, and shortly after the eestuis que trustent became of age, they employed counsel to prosecute the affair, and that in the latter part of the year 1883, or in the early part of the year 1884, and before the deed from Brinkerhoff and Alyea to the cemetery association was executed, the counsel so employed called upon Brinkerhoff and Garrabrant R. Alyea and told them that he was employed by the two young Watsons to prosecute the bond and try and collect the money. Proceedings were had in the orphans court of Bergen county against the defaulting administrator, and an examination had before Thomas M. Moore as a master in the first three months of the year 1884.

In order to explain the suspicious circumstances of the cancellation of the $6,000 mortgage given to the widow and Mrs. Berry, and the conveyance by Andrew Brinkerhoff to his brother-in-law, Alyea, in the month of August, 1890, which was about the time that the pleas in the action on the bond were due, the defendants swore that the bond and mortgage, though expressed on the face of the mortgage to be a part of the consideration named in the deed for the conveyance to Brinkerhoff and Alyea, yet, in point of fact, were subject to a verbal agreement between the parties that the mortgage should only be enforced in case the project of a cemetery should prove to be financially successful. Ho written agreement to that effect was made. Interest was paid upon the mortgage for two years, and is endorsed on the bond. Then there is endorsed on the bond, and signed by the widow and Mrs. Berry, an agreement dated October 18th, 1889, ten months before the cancellation, releasing the interest up to that date and such as should thereafter accrue, according to an agreement of even date herewith and made- part hereof; ” and the payment of the principal was extended for seven years from October 22d, 1889. An agreement to the same effect was endorsed on the mortgage. When asked to produce the agreement so referred to, Mr. Alyea declared that it was a verbal agreement, and that the reason the mortgage was canceled was that it had been proven to their satisfaction that the cemetery association was not a success, and that the parties had voluntarily, and without any consideration, delivered up the mortgage to be canceled.

This explanation must be considered in connection with the logic of the situation, which was, that if it appeared at the trial of any issue that could be raised in the suit on the bond that either of the devisees had received anything of value upon a sale and conveyance of the land devised, they would be liable to a judgment to be entered against them personally for the amount so received; also in connection with the written agreement of October, 1889, endorsed on the bond and mortgage, extending payment seven years. Ho explanation was made of the change of the minds of the parties between October, 1889, and August, 1890.

With regard to the conveyance made about the same time by Brinkerhoff to Alyea of the former’s half interest in the premises, in consideration of $1, Alyea swears that the real consideration of that was to be $1,000, but that he was unable to pay it at that time, and that he reconveyed the half interest to Brinkerhoff, by deed dated February 2d, 1891, but not acknowledged until August, 1891, or recorded until September, 1891, because he had been unable to raise the money to pay Mr. Brinkerhoff the $1,000 agreed upon. Another deed is produced at the hearing, from Brinkerhoff to Alyea, dated April 6th, 1893, acknowledged April 19th, 1893, also in consideration of $1, conveying the grantor’s half interest in the premises, which the parties swear was actually delivered to Alyea, but not put upon record, and for which Alyea swears he actually paid Brinkerhoff $1,000, all in pursuance of the original agreement of 1890.

Now I am unable to accept the explanation given of the cancellation of this $6,000 mortgage and the making of these three deeds. Mr. Garrabrant R. Alyea was sworn on the trial of the suit on the bond as to the value of these premises, and produced the deed that he had from Brinkerhoff in consideration of $1, and must have sworn that the property was of no value, because the jury so found. And yet, according to his evidence on the hearing of this cause, he had already agreed to pay Mr. Brinkerhoff $1,000 for his interest in the premises not conveyed to the cemetery association.

The circumstances indicate very strongly that these conveyances were made, and the mortgage canceled, in order to show that the property was of no value, and that the verdict of the jury was based on that showing.

Another object of the conveyance from Brinkerhoff to Alyea was to show that the title to the lands had been aliened by each of the devisees. For the two conveyances of April, 1882 — one from the devisees to Thomas W. Alyea, and one by him to Andrew H. Brinkerhoff and Garrabrant R. Alyea — were, palpably, one transaction, and did not show any alienation by Andrew H. Brinkerhoff.

Both parties claim an estoppel as against the other from the postea and judgment in the suit on the bond.

I am unable to perceive how the judgment record can create any estoppel as to Alyea and the cemetery association, either for or against either, for several reasons. In the first place, neither was a party to that record, nor privy to any party thereto; and therefore neither is bound by it. The familiar rule is that estoppels of that character must be mutual, and bind both parties to the record, or neither. In the second place, the issue in that suit was quite different from that in this. There (omitting, of course, the issues which settled the responsibilities of the ancestor and devisor for the debt demanded) the issue was whether the lands which the devisees claimed to have aliened before writ purchased were of any value so as to charge them personally with such value; and as soon as the jury determined that they were of no value the question whether or not they had been aliened at all, either in good or bad faith, became immaterial, for in either case the defendants were not personally liable. In fact, the record shows that no issue was made up or tried as to whether they were or were not aliened in good faith, so as to relieve them from execution under the latter part of the second section of the “Act for the relief of creditors against heirs and devisees.” Such issue could not be properly injected into that record, because the alienees were not parties to it, and could not be bound by the finding of the jury and judgment thereon.

At common law there could be no recovery against the heir-at-law personally upon the debt of the ancestor by reason of lands descending to him, even if he had aliened those lands for and had received a valuable consideration. A judgment at common law against the heir-at-law was always special, to be levied upon the lands of the ancestor which had descended to him. But now, by statute, both the heir and devisee are made personally liable.for the debt of the ancestor by reason of lands descended or devised to him, so far, and no farther, as he has received either rents or profits before their alienation or consideration upon alienation. The just rule that the heir or devisee, except when he shall plead falsely or fail to plead and disclose assets, shall be held liable to the extent only that he has received assets, is not disturbed by the statutory scheme. Muldoon v. Moore, 26 Vr. 410, and authorities there cited, viz., Bac. Abr. tit. “Heir” (F); Com. Dig. tit. “Assets” (A); 2 Saund. 7, note 4; Herbert’s Case, 3 Coke 11; Vin. Abr. tit. “Heir” (C); Com. Dig. tit. “Pleader” (2 E 5). The note 4, 2 Saund. 7, is exhaustive and particularly instructive.

At common law there was a difference of opinion and some contrariety of decision as to whether, if the declaration against the heir (founded upon a specialty which mentioned the heir) did not specifically allege that lands had descended to the heir, he could be held personally liable upon a judgment against him by default. But this uncertainty was settled by the statute of 3 William and Mary, c. 14, and under that statute (section 3 of our act) it was held that the declaration against the heir need not allege lands by descent, but that such descent would be presumed, and the burden was in all such cases thrown on the heir to disclose by plea all lands cast upon him by descent, and if none had descended, to plead rien pur descent, and so are the precedents. But in the case of actions against devisees the precedents allege that the defendant was the devisee of certain lands, &c., without specifying them.

But for this peculiar rule of pleading I should have said that all the issues in the suit at law, except the first two, viz., non est factum and performance of the condition of the bond, were immaterial, and that if the defendants had allowed judgment to go against them by default the result would have been precisely the same, namely, judgment would have been given specially to be levied of the lands of the decedent. The finding of the jury that the bond was the debt of the devisor and that its condition had been broken, entitled the plaintiff at once and quite irrespective of the other issues, to a special judgment against the devisees, to be levied of the lands of whieh the devisor died seized, without regard to their value.

The result, then, is that the jury found, in effect, that the lands that were devised to the devisees were only of the value of $1, and left them, so far as the parties to this record are concerned, still subject to the lien of the judgment, and liable to be levied upon and sold to pay the ancestor’s debt.

This finding, however, does not prevent Garrabrant R. Alyea or the cemetery association from proving — but leaves it necessary for them to prove — that they had, in fact, purchased these lands for a valuable consideration, in order to bring themselves within the saving clause at the end of the second section of the “Act for the relief of creditors against heirs and devisees,” which provides that lands which were bona fide aliened before action brought shall not be liable to execution. This, however, they have failed to prove. No direct consideration has been paid, as we have seen, nor was there any valuable consideration by way of assuming and relieving the heirs-at-law of the debts secured by mortgage on the premises. The whole arrangement was one made by the family, and understood by each of them, as appears by the evidence, to the effect that these lands should be conveyed in the way and for the purposes they were conveyed, and that a mortgage of $6,000 should be given to the widow and the daughter, who each had a preferred legacy, which was a lien on the lands, and that Andrew’s preferred legacy was satisfied by his receipt of a one-half interest in the whole venture,, subject to the mortgage to his mother and sister.

Mrs. Berry and Mrs. Van Riper having delivered up their mortgage to be canceled, in order, as I infer, to escape liability as devisees, and having actually escaped such liability, all parties to the record of the suit at law are now estopped from setting up as against the plaintiff therein or the purchaser at sheriff’s sale that any consideration whatever was paid. This estoppel prevents the revival of that mortgage as against the cemetery association and Alyea, and, as it seems to me, leaves the one hundred and ten acres not conveyed to the cemetery association clearly liable to the execution, and results in placing the title in the complainant.

Against this position it was urged by the defendants, in the first place, that according to the doctrine advanced and adopted in the case of Severs v. Dodson, 8 Dick. Ch. Rep. 633, there was no debt against the ancestor at the time of the death of Briukerhoff, nor, indeed, until judgment was actually rendered on the bond in February, 1891.

The proof is that the breach of the condition of the bond occurred in Mr. Brinkerhoff’s lifetime, and that he had notice of it. But in order to complete the breach it was not necessary that he should have notice of it.

Without going into any discussion of the exact point decided in Severs v. Dodson, I think it is sufficient to say that the liability there dealt with is decidedly different from that here in question. There the decedent was contingently liable under the law-merchant as an accommodation endorser of a promissory note. Here the deceased had executed a bond under his seal, by which he admitted himself to be presently indebted to the ordinary, for the use of the infants, in the sum of $50,000, upon the condition that it should stand in full force and virtue unless the administrator, Watson, performed his duties as such. He failed in such performance in the lifetime of Brinkerhoff, and Brinkerhoff then became indebted to the ordinary in the sum of :$50,000, and died so indebted. ' .

Some of the defendants testified that the deceased testator supposed that this matter of the administration of Watson had been entirely settled before his death, and that he was very much pressed with the weight and burden of the large mortgage on his premises,.and declared that “something must be done about it.” The complainants allege that in that expression he referred to his liability on the Watson bond. If it were necessary to decide the question, I should say that the complainant had the better of the argument; for we find the deceased, three months before he died, making a will based on the notion that he was worth $35,000 or $40,000. But I do not think it necessary. That there was a debt due by him to the ordinary at the time of his death is too clear for argument.

With regard to notice of that debt; the family were aware that proceedings had been taken against the administrator in the orphans court of Bergen county. They say that the father told them that the affair had been settled. Admitting all that, still they were aware of the- alleged default, and thereby put upon inquiry; and if the matter of notice to the heirs in general of the existence at all times of this indebtedness were a material element in the decision of this cause, I should feel constrained to charge them with such notice. But be that as it may, it is too clear for argument that both Brinkerhoff and Alyea had notice of it from the counsel of the Watsons before they had taken any irretrievable step in the cemetery enterprise. As we have seen, notice was given to each of them before the execution of the deed to the cemetery association. They were at once the promoters of the association, and its sole proprietors and managing officers, so that the corporation, as such, is chargeable with all the knowledge which they had. When the land was conveyed to the cemetery the lien of this debt was resting upon it within the knowledge of all parties.

I do not perceive that the fact that shares of stock have been issued to the two proprietors changes the situation. The Cemetery act nowhere directly authorizes the creation or issuing of certificates of stock in such association. By the tenth section (Rev. of 1876 p. 102), it is declared that after paying the purchase-money, if any, of the lands purchased for a cemetery, the proceeds of the sale of burial lots shall go for the care and improvement of the grounds; and by the sixth section (p. 101), the trustees are to be selected from among the owners of burial plots, and elected wholly by the holders thereof. The existence of stock or shareholders is not contemplated by the act, nor consistent with the legislative scheme. In order to remedy the manifest injustice of giving to the lot-owners alone the control of the affairs of a newly-launched cemetery association still being indebted for the purchase-money of its lands, the legislature, by supplement of March 4th, 1879 (Rev. Sup. p. 74), provided as follows:

“And for the purpose of electing trustees at any meeting after organization hof the association, every creditor of such association, in addition to his right to vote by virtue of his owning plots or lots according to section five of this act, shall be entitled to one vote for every four hundred dollars’ worth at par value of bonds, stock or other duly-authorized evidences of debt he or she may own and hold against such association.”

By implication, this language recognizes the right of the association to make use of the machinery of certificates of stock to manifest a debt owing by it; but, clearly, it left the holder a mere creditor, and no more. For it is as a creditor only that he is authorized to vote for the trustees.

It was said at the hearing that a few shares of the stock issued to Brinkerhoff and Alyea had been assigned to some third person. It is improper to decide at this time whether or not such holder, who is not a party to this suit, can, under any circumstances, be held in any sense a bona fide purchaser in such manner as to be, as to his share, relieved of the lien upon this land.

It thus appears that the grantees whose title is impeached are not possessed of any of the elements of bona fide purchasers without notice. In the first place, they had notice of the statutory lien cast upon the lands for the debt of the ancestor; and, in the second place, they paid no consideration.

But it is further urged, first, that moneys have been spent and improvements made on these premises by the purchasers; and, second, evidence is offered to sustain the finding of the jury that they were of no value at the decease of the ancestor or at the time of these conveyances; that they had no value over and above the encumbrances, and, in fact, that they have, no value now over and above the encumbrances, except what- has been put upon them by the labor and expenditures of Garrabrant R. Alyea.

The rule as to improvements was discussed and settled, as I think, in Fredericks v. Isenman, 12 Vr. 212. That, indeed, was a case where the lands had been aliened by the heirs in good faith, and the question was upon the amount of the recovery against the heirs. But the principle there adopted applies here. The creditor of the ancestor or devisee is not entitled to the benefit of any positive additions put upon the lands by the heir; and, other things being equal, the heir, in consideration of the rents and profits, must keep down the taxes and encumbrances. The rule thus stated is a just one.

It appears in this case that considerable arrears of taxes accrued, mainly, as I understand the evidence, after the death of the testator, and some assessments for street improvements were made, but whether before or after the death of the testator I think the proofs do not show. Then there were improvements made upon the cemetery grounds, mainly, as I understand the proofs, on the six-acre lot. Mr. Alyea claims that the association is largely indebted to him for money advanced, by which these improvements were made, over and above what he has received in payment. I think he is entitled to those advances, if any.

The heirs, or some of them, were in possession of the homestead and lands until the arrangement of 1882 was entered into, and since then, as I understand, they have been in the use and occupation of Mr. Alyea and his wife. However, on these points very little proof was made.

The result is that if the defendants claim for taxes, insurance and repairs, they must account for rents and profits. If they do not claim for those disbursements, then, as at present advised, I think there should be no account taken as to rents and profits, or insurance, taxes and repairs of all those lands not included in the grant to the cemetery association. Assessments for benefits caused by public improvements stand on a different footing, and, as at present advised, I think they must be allowed to the tenant.

With regard to the lands granted to the cemetery association; the proofs do not show whether or not the funds of the cemetery association were applied to any of the grounds outside of the six-acre lot specially devoted to cemetery purposes and released .from the life insurance company’s mortgage. If they were not, and those grounds were used for farming purposes in connection with the mansion-house, then they stand on the same footing as the other with regard to taxes, &c.

There should be no difficulty in taking an account of the receipts and disbursements of the cemetery association, in which, of course, they must be charged with the mortgage given to Mrs. Noble, and credited with payments made up to that time on account of assessments for improvements and on account of the principal of the insurance company’s mortgage.

Mr. Alyea claims that he has rendered large services to the cemetery association. There was no proof, however, as to what salary he was to receive, or did receive, but he is entitled, of course, to a reasonable compensation for his services.

The general increase, if any, in value of the land irrespective of these improvements, must go to the benefit of the creditors.

I will advise a decree for complainant, with an order of reference to take an account of the matters referred to, the details of which will be settled after further hearing of counsel.

In order to enforce this decree it is not necessary that the title of the cemetery association to a proper and reasonable amount of the land conveyed to it should be disturbed. The evidence is not clear as to how much has been actually devoted to cemetery purposes, or as to how much ought, under the circumstances, to be so devoted. So far as the evidence goes, I should infer that only the six acres covered by the Noble mortgage and released from the insurance company’s mortgage were so devoted. But if the parties cannot agree upon that, there may be a reference to a master to determine it.

The decree as to the cemetery association will be enforced as-follows: Brinkerhoff and Alyea must assign to the complainant all the stock of the cemetery association ; a reasonable appraisement must be made of the value of the lands so devoted to-cemetery purposes at the time they were so devoted, and the amount so fixed, with interest, declared to be an indebtedness to the grantors which will be represented by the certificates of stock so assigned; and such indebtedness, after allowing for the Noble mortgage, and subject to the account to be taken of the receipts and disbursements and general indebtedness of the cemetery association, will be held to be a debt to be paid from the sale of lots, according to the scheme of the statute.


source: Caselaw Access Project

author: Emery, V. C.

license: Public Domain

text:
    Eva May Hervey v. Lee A. Hervey.
    [Filed November 1st, 1897.]
    1. A suit for maintenance involves the marriage status, and where the domicile of both parties is within the state, and defendant is temporarily absent, and has no place of abode within the state, the court acquires jurisdiction, upon service of process by publication, to pronounce a decree for payment of maintenance out of his property within the stale, based upon the domicile of both parties and its control over the status by reason thereof. On the state of facts shown — Held, that at the time of the filing of the bill and of the service of the subpcena and notices the legal domicile of defendant, for the purposes of jurisdiction in the suit, was in New Jersey.
    2. Defendant had left the state with intent to remain away for an indefinite time, and his father’s residence was not his actual place of abode at the time of the service of the subpcena, and service could not legally be made by leaving it at such residence.
    3. As a condition of granting leave to the defendant to enter a special appearance to contest the question of jurisdiction, there should be inserted in the order an understanding or stipulation that the defendant would submit without further process to the order of the court if the point should be decided against him.
    On bill for support, &c., and application to set aside orders, &c. Heard on petition to set aside service of subpœna and orders subsequent thereto, including order for temporary alimony. Heard on petition, answer and proofs taken orally.

      Mr. Chandler W. Riker, for the defendant.

      Mr. James E. Howell, contra.

   Emery, V. C.

This is a bill for support and maintenance under the twentieth section of the Divorce act. Gen. Stat. p. 1270. Subpœna was issued against the defendant to answer the bill and has been duly returned served, and an order for alimony pendente lite and counsel fees has also been made. Application by petition is now made by the defendant (by virtue of special appearance and leave for that purpose) to set aside the service of the subpœna, the order for alimony and all other orders in the cause. The reason alleged in the petition is that-at the time of the service of the subpcena and notices of the application for alimony, the defendant had no actual or legal residence in the State of New Jersey; that the subpcena and notices were served after the 12th of December, 1896, by leaving copies at the residence of defendant’s father in the city of Newark; that on that date defendant left the city of Newark with the intention of being absent for some years and engaging elsewhere in business,” and that he had previously, on account of the state of his health, closed out his business interests in Newark with the intention of leaving the city and establishing his residence permanently in Mexico or some other climate more suited to his health. He claims that since the 12th day of December, 1896, when he actually left the city of Newark, he has not had an actual or legal residence in the city of Newark or State of New Jersey. As to his residence in New Jersey, up to the 12th of December, 1896, the defendant alleges that on October 28th, 1895, and previously thereto, he resided in Newark, on Riverside avenue, and not at his father’s residence (128 Montclair avenue); that from that date he was in a hospital until April, 1896, when he was taken to his father’s residence to be cared for during convalescence, and left there about July 1st, 1896, to travel until the latter part of August, 1896, when he again visited his father, expecting, however, that his visit would not extend beyond' the beginning of cold weather, when it would be necessary for him, on account of his health, to go to a southern climate. As one of the questions to be decided upon this application involves, in my judgment, jurisdiction of the court to make the order in question, and this depends to some extent upon the status of the record and proceedings in the cause, a statement of these in some detail is necessary.

The bill was filed on December 16th, 1896, subpoena thereon was issued December 30th, 1896, returnable January 13th, 1897, and was duly returned by the sheriff of Essex county, “served” on December 31st, 1896. On the day of filing the bill notice of an application for alimony pendente, lite and counsel fees was served by leaving copies of the bill and affidavits and notice at the residence of defendant’s father, Daniel E. Hervey, in Newark. The affidavit of service stated that these were served on the defendant “by leaving the same at his residence with a member of his family over the age of fourteen years, on the 16th day of December.” On the day for which notice was given the defendant did not appear, and it being suggested to the chancellor (by whom does not appear) that the defendant had recently left his last place of residence for parts unknown, an order was on that day, December 21st, 1896, made by the chancellor reciting the proof of service of notice of the application for temporary alimony upon the defendant “ by leaving the same at his last-known place of residence ” and the suggestion to the court “ that the defendant has recently left his said last-known place of residence for parts unknown,” and the order then referred the cause to me, as vice-chancellor, to hear the same and advise decree. It was further ordered that the defendant appear on Tuesday, December 29th, 1896, to show cause why alimony pendente lite should not be ordered. No special directions as to service of the order were made. A copy of this order was served on December 23d by leaving at the residence of defendant’s father the affidavit stating that it was served on defendant “ by leaving.the same at his residence.” On the return-day of the order the defendant did not appear, but a solicitor, who stated that he did not appear for the defendant, filed (with the consent of complainant’s solicitor) affidavits of Daniel E. Hervey and Ella Hervey, defendant’s father and mother, stating among other things that the defendant had not resided at his father’s residence since the 12th day of December, 1896, and that on that day he left the state. The father further states that “ he is unable to locate the said Lee A. Hervey so as to communicate with him,” and the mother, “that she did not know of the present whereabouts of the said Lee A. Hervey.” It now appears that, as a matter of fact, the defendant, on or about December 23d, 1896, sailed for Cuba, and both his father and-mother knew this, and his father took down his trunk to the steamer. The affidavits filed on the return day by the complainant as to the manner of service of the original notice of application for alimony,, showed that this was served upon defendant’s mother on December 16th, who said that the defendant lived there; that he was not at home and that she did not know when he would return, and that she took the papers, asking when she should deliver them to the defendant. The order of December 21st was served on December 23d, at the same place, by attempting to deliver to defendant’s father, who declined to take it. The defendant not appearing at the return day, an order was made December 31st, 1896, reciting due notice of motion to the defendant and referring the application to a master, to report as to the. amount of temporary alimony and counsel fees. The master’s summons under the order was served on the defendant “ by leaving at his residence ” and by subpoena ad testificandum,. Defendant’s father and other witnesses were examined as to his property. The master reported on January 14th, 1897, that the defendant was possessed of property or had property held in trust for him, a portion of which was productive real estate, the net annual receipts of which were estimated at $550, and that an allowance of $4 per week for temporary alimony and $75 counsel fees should be made.

On Jauuary 18th, 1897, an order for alimony pendente lite at $4 per week, from December 16th, 1896, the date of filing the bill, and for $50 counsel fees, was made. The jurisdiction of the court to entertain the suit for maintenance was in the original bill based on the fact of complainant’s residence in the state at the time of the marriage, November 29th, 1896, and the husband’s refusal to provide for her support or to live with her after his marriage, and it was also alleged in the bill that her husband was, at the time of the marriage, engaged in the real estate business in Newark, and that he was possessed of property, real and personal, worth not less than $12,000, but no specification of the property was made. By an amendment to the bill, filed January 21st, 1897, after the order for alimony, it was alleged that about the time of the marriage the defendant owned four tracts of land in Newark (specifying them), and also a note of $5,000, made by a traction company and due in March, 1897, and that he had transferred all his real estate and personal property (including these) to his father, Daniel E. Hervey, and to his business partner, Charles Roller, without consideration and for the purpose of preventing complainant from obtaining any interest thereon, or from being compelled to'support her out of. his income therefrom, and further that her husband had no property outside of the State of New Jersey, and that was his only property so far as complainant knew, and seizure and sequestration of this property by the process of the court for proper provision for complainant was prayed. On Jauuary 20th a copy of the decree for temporary alimony was served at the residence of defendant’s father, as his place of residence. On January 29th, 1897, on defendant’s application and the complainant not opposing, an order was made for leave to enter a special appearance “ to apply to set aside the order for alimony pendente lite and all other orders in the cause, because defendant has not been served with any notice, petition or subpoena in said cause, and of applying to set aside all record or service thereof, and for no other purpose whatever.” This order, it will be observed, did not reach to the setting aside of the service of the subpoena but only of the order for alimony and other orders, and the order imposed no conditions upon defendant: The appearance entered January 30th, 1897, followed the terms of the order and was specially entered “ for the purpose of applying to set aside the order for alimony and all other rules and orders in the cause, because the defendant has not been served with any notice, petition or subpoena in the cause, and of applying to set aside all record of service thereof, and for no other purpose whatever.”

The petition now coming on to be heard, and which was filed February 9th, included, as above stated, an application to set aside the service of the subpoena as well as the order for alimony and other orders in the cause, and upon this an order to show cause was granted why the same should not be set aside, both parties to have leave to take affidavits on notice, to be read on the hearing. On the day of filing this petition by the defendant the complainant filed another petition in the cause, setting out that the defendant had not paid either alimony or counsel fee, as ordered by the court; that the defendant was the owner and holder of' two certain mortgages on lands in Newark — one given by Charles A. Roller, December 4th, 1896, for $750, another given by Samuel to him on November 11th, 1896, for $700— and praying for a receiver to take charge of these mortgages and any other property of the defendant and to sequestrate them for the payment of the decree. Upon this petition and on notice served at the father’s residence, stated to be defendant’s, an order was made, reciting the two applications of complainant and defendant and granting an injunction restraining payment of the mortgages to the defendant and restraining defendant from receiving payment, which injunction was served on defendant in the same manner as the other notices and orders. On February 23d a further order was made on complainant’s application, directing the defendant to show cause why counsel fee and costs should not be paid to complainant on the defendant’s application to set aside the proceedings, and this order was directed to be served on Riker & Riker, the solicitors, who had entered a limited appearance. Service of a copy of this order was acknowledged by Riker & Riker,” not, however, describing themselves as solicitors of the defendant or as acting in any other capacity for him.

In lieu of affidavits the hearing took place orally in open court and, upon defendant’s application, the argument extended to setting aside the service of subpoena as well as the orders. The order for alimony pendente lite was not based on the service of the subpoena, but on the application therefor made on notice, and in the view which I take of the jurisdiction of the court of chancery in this case, even if the service of the subpoena should be set aside as not made according to the chancery statute regulating the service of subpoena, which is specially adopted in these cases, by the Divorce act (section 6), yet the validity of the order for temporary alimony, so far as the service of the notice of application therefor is concerned, must depend ultimately upon the jurisdiction of the court to render final decree in the cause for payment by the defendant or out of his property. If the court has such final jurisdiction in this cause, and can render decree in a suit for maintenance, against an absent defendant by publication under the statute and its rules, then the validity of an order for alimony, which is objected to solely because the defendant had no residence or place of abode within this state at which subpoena could be served under the statute or notice could be left, depends on a different consideration. By rule 20 of this court all notices of motions, of summons to attend master, &c., are regularly served on persons not resident in this state by setting up the same in the office of the clerk of this court. Residence under this rule means, I take it, “ dwelling-house or usual place of abode,” at which, under section 13 of the Chancery act as amended, process for appearance is to be served. Gen. Stat. p. 398 136. And this rule in terms reaches the present case as to the orders for temporary alimony, if the defendant be, as he claims, a non-resident. But in proceedings for alimony pendente lite, as in all proceedings for divorce, the object of the court has always been to give the defendant actual notice if possible and an opportunity to be heard on the application, and where the defendant is non-resident the practice is to direct notice of such application in a manner most likely to give actual notice, which would include the leaving ofthe notices with such persons in this state, relatives or others, who would be most likely to communicate the notice to' defendant, if complainant had no information how to reach him. As, therefore, the defendant’s objection to the order for alimony in this case is not for the purpose of being heard on the merits of the order, or to have service made on him according to the rules as a non-resident, but is based purely on the manner of service of the notice, the order for alimony should not, in my judgment, be set aside, for reason of the manner of service, even if defendant is a nonresident, if the court has jurisdiction to render final decree against the defendant as a non-resident, and if the notice which has been actually given has been such as the court, with a view to giving him actual notice, would have directed to be given on the facts as they now appear. In other words, if the court has jurisdiction in this cause to render a final decree against the defendant for alimony or maintenance by any method of proceedings ■ under our statute, either by service or publication, I see no reason for setting aside this order for alimony pendente lite simply because defendant has no residence in the state where notice could be served. Whether the court has such jurisdiction for final decree in the cause seems to me, therefore, to be the main question which arises on the evidence given on the hearing as to the defendant’s residence and domicile. The question of legal domicile, as well as of actual and legal residence, arises for the reason that an application for support or maintenance by a wife against her husband, being an attempt to enforce an obligation which arises solely out of the matrimonial status, the proceeding is, or may be, one which is like actions for divorce and other actions directly involving the continuance of the status, and the jurisdiction of the court is therefore dependent to some extent on the domicile of the parties complainant and defendant. Our own statute confers the jurisdiction as to divorce and maintenance by the same act, and in the same clause of the act and in connection with each other, and in each proceeding makes the same conditions as to residence as giving jurisdiction. The language of section 1 of the act is (Gen. Stat. p. 1273)

“ that the court of chancery shall have jurisdiction of all causes of divorce and of alimony and maintenance by this act directed and allowed, provided the parties complainant and defendant, or either of them, were or shall be inhabitants of this state at the time of the injury, desertion or neglect complained of, or where the marriage shall have been solemnized or taken place within this state at the time of the injury, desertion or neglect complained of and at the time of exhibiting the bill.”

And in this respect of jurisdiction the statute has existed in this precise form from the time of the first statutory provision for maintenance by the act of February 3d, 1818 (P. L. of 1818 p. 43), which was incorporated in the Revision of 1820 (page 667), on repealing the act of 1818. Now, in reference to the residence of the parties required for purposes of divorce, the court has always held that the residence or inhabitancy contemplated by the act must be the actual legal domicile. Winship v. Winship, 1 C. E. Gr. 107 (Chancellor Green, 1863); Coddington v. Coddington, 5 C. E. Gr. 263 (Chancellor Zabriskie), Firth v. Firth, 6 Dick. Ch. Rep. 137 (Vice-Chancellor Van Fleet, 1892), and cases cited.

Inhabitancy or residence as construed under this act in cases involving the jurisdiction of the court to dissolve the matrimonial status, seems by these cases to be construed as equivalent to such domicile as would, upon the general principles of law, be recognized as conferring jurisdiction to adjudicate upon the status. Under the rule established by these cases, the actual legal domicile by complainant or defendant in actions for divorce, under the act, would be sufficient to sustain jurisdiction so far as the point of residence or inhabitancy was involved. No decisions, however, have been made in our courts in cases of application of a wife for maintenance directly upon the question of the jurisdiction of the court to pronounce decree against a defendant non-resident who has property in the state out of which payment may be directed to be made. The fact that the requirements of the statute for the two causes of action, divorce and maintenance, are the same and are united in the same provisions of the act would seem to be a legislative declaration that the same rules as to jurisdiction, dependent on residence, apply to both cases, and the further, provision of the twentieth section, relating to maintenance, that the court might decree maintenance to be paid by the husband or out of his property, read in connection with the first clause of the act, would certainly seem to be intended to confer a jurisdiction arising out of possession of property in the state, in connection with defendant’s domicile in the state. But whatever be the intention of the statute as to jurisdiction, and however clearly the jurisdiction to make such decree for maintenance against a non-resident defendant to be paid out of his property may be conferred by the statute, the ultimate jurisdiction for decree for payment, whether by defendant or out of his property, must, as it seems to me, depend upon the question whether the decree in such cases is to be considered as purely and simply a decree in personam, such as would arise on a personal liability, based on contract or tort, or whether it is to be treated as a decree based on the control over the matrimonial status by reason of the domicile of one or both of the parties, which may be made by the court which has jurisdiction over that status. If the decree is purely of the former character, then, under the decision of the United States supreme court in Pennoyer v. Neff, 95 U. S. 714, and the cases following it, the decree in personam must be based on service within the state, and the ownership of property within the state will not confer jurisdiction as in rem unless, under the statutes of the state, the jurisdiction is based on the seizure of the property as the foundation of the suit. But if, on the other hand, the decree for payment is based on the control of the matrimonial status as itself the thing relating to which jurisdiction is exercised by reason of the domicile, then, by the recognized principles of the law, the court which has jurisdiction over the status could make a valid decree.

The supreme court of Massachusetts takes the latter view of the nature of the decree for maintenance. This court holds that since the decision in Pennoyer v. Neff, a judgment in personam against a non-resident not founded on service of process within the state is no longer valid, even within the state itself. Eliot v. McCormick, 144 Mass. 10; Needham v. Thayer, 147 Mass. 536. But it also sustains the judgments of the state court on suits under the state statutes for alimony and maintenance against non-residents. In Blackinton v. Blackinton, 141 Mass. 432 (1886), a man and woman, citizens of Massachusetts, were married in that state, and subsequently the husband left his wife without cause and went to New York, becoming a citizen of that state, the wife continuing to remain a citizen of Massachusetts. Upon petition to the probate court for an order for support and maintenance under a statute, notice of the proceeding by delivery to the defendant was directed, and this notice was served in New York. No attachment of property in the state was made as the basis of the proceedings, and upon a special appearance and plea to dismiss for want of jurisdiction, the court sustained the jurisdiction to order a monthly payment for support. Mr. Justice Holmes, as to this part of the decree (at p. 436), says: “ The whole proceeding is for the regulation of a status. The incidents of that status are various — some concerning the person, some concerning the support of the petitioner or her child. The order to pay money is not founded on an isolated obligation as in the case of contract or tort, but upon a duty which is one of those incidents. The status, considered as a whole, is subject to regulation here, because such regulation is necessary rightly to order the daily life, and to secure the comfort and support of the party rightfully living within the jurisdiction. It is quite true that these considerations may not suffice to give the decree extra-territorial force, and that in general courts do not willingly pass decrees unless they think that other courts at least ought to respect them. But this is not the final test.” The decree was held to be within the power of the court and to be carried out against the defendant’s property within the jurisdiction and against his person, if found there.

The Massachusetts statute, like our own, makes the same provision as to jurisdiction in divorce and maintenance proceedings, and this feature was relied on to some extent in sustaining the decree. This case, it will be observed, extends the jurisdiction of the court of the wife’s domicile in maintenance cases to a decree binding on property within its limits against the husband who, leaving his original domicile, has become domiciled elsewhere. It is claimed in the present case that the defendant’s legal domicile is still in New Jersey, and that at the time of filing the bill and service of the subpoena and notices, and even up to the time of the hearing, no domicile or citizenship elsewhere had been acquired by the husband. If this be the result of the evidence on this point, then the settled rule is that a legal domicile once acquired remains until another is obtained. 2 Bish. Mar. & D. (6th ed.) § 118 a; Cadwalader v. Howell, 3 Harr. 138 (1840); Firth v. Firth, supra. An additional basis for the jurisdiction of the court in this case would exist in the fact that the legal domicile of both parties is still here.

A different view of the nature of the decree for maintenance was taken in Bunnell v. Bunnell, 25 Fed. Rep. 214 (Brown, District Judge, 1885), and this learned judge held that where a decree for alimony had been obtained in a suit for divorce without service within the jurisdiction of the court upon a defendant resident elsewhere, it could not, under the doctrine of Pennoyer v. Neff, be enforced against the property within the jurisdiction He seems to consider (at p. 216) a claim for alimony as a purely personal claim, resting upon the same basis as other personal claims, and like them enforceable anywhere by personal service of process within the jurisdiction of the court, but not enforceable otherwise. This view as to the character of the claim for alimony was adopted and' stated without any special discussion of its nature, and so far as relates to the jurisdiction of a court to enforce it merely because of personal service of process within its jurisdiction on defendant irrespective of his domicile, seems to be at variance with the authorities. These declare generally that jurisdiction of suits for support as well as for divorce, depends upon the domicile either of complainant or of defendant, which gives the court jurisdiction over the status, and that the mere service of process on defendant in a jurisdiction not the domicile of either husband or wife is no basis for jurisdiction, as it would be in the ease of a claim purely personal. 1 Bish. Mar. & D. § 359 a.

The same view of the personal character of the decree for alimony is taken by other authorities, which hold that where the defendant’s domicile is in another state alimony cannot be awarded so as to make the decree therefor valid in another state as a decree in personam. 1 Bish. Mar. & D. § 170. In Hunt v. Hunt, 72 N. Y. 217, the jurisdiction over defendant in a divorce suit, by reason of his domicile within the state, was sustained, although he could not be served .within the state but was brought in by publication as an absent defendant. In Lynde v. Lynde, 9 Dick. Ch. Rep. 473 (affirmed, 10 Dick. Ch. Rep. 591), it was said by Chancellor McGill that a decree for alimony against an absent defendant who did not reside or have his domicile in the state and did not appear or have property under the court’s control could not be made in an ex parte suit for divorce, except upon due actual notice to the defendant, and the decree for divorce was amended to insert such order. In the present case the defendant has property within the jurisdiction of the court, and upon the evidence I reach the conclusion that his legal domicile is still in New Jersey, and, in my opinion, the rule applicable to this case is that the claim for maintenance under our statute involves, as a basis for jurisdiction, the status of the parties, and when this court, which has jurisdiction over this status by reason of the domicile of both parties, it has power under our statutes to pronounce a decree thereon for payment out of the property of the defendant within its jurisdiction, which is binding within its jurisdiction, and to pronounce such decree upon service on a defendant domiciled herein by publication as against him as an absent defendant under the statute, if he has no dwelling or place of abode within the state where ‘service of process can be made by statute. The following are the facts which I find to have been proved in reference to the defendant’s residence and domicile: Defendant, in October, 1895, being then still under age and a clerk in a New York store, resided in Newark, which was the domicile of his father, and on Riverside avenue, where he boarded and lodged with one Mrs. Dutch. About that date he was very seriously injured in an accident and was taken from his then residence to a hospital, where he remained until about April, 1896, when he went to his father’s residence, 128 Montclair avenue, in Newark. He was still an invalid, unable to care for himself, but gradually improved, and after two months was at summer resorts in and out of the state for his health, and traveling until near the 1st of November, returning to his father’s residence two or three times during this interval. Shortly before November 1st, 1896, he returned to his father’s house in Newark, and made that place, and no other, his place of abode from that time until he left Newark, on December 12th. The defendant’s claim that his residence still continued at Mrs. Dutch’s is not supported by the evidence. About November 1st he entered into the real estate business with partners, at Newark, and this fact, I think, shows conclusively that no intention to remove to a milder climate then existed. On November 28th he was married to complainant at the residence •of her brothér-in-law, 127 Montclair avenue, directly opposite the residence of defendant’s father, and the defendant gave the latter place as his residence in reply to questions by the minister performing the ceremony. The complainant was pregnant at the time of the marriage and immediately applied to defendant to care for her and take her somewhere with him, but after interviews on the two or three following days defendant failed to make any provisions for her, and after December 2d did not visit his wife. On that day an account of the marriage, which had been in the meantime kept quiet, appeared in the newspapers, and defendant says that when this came out he determined to leave the state. He did not disclose this intention to his wife. Between this date and December 10th he dissolved his partnership, conveyed the real estate standing in his name to his father and his partner, and transferred to his father other property. His trunk was packed and left in his father’s house to be afterwards sent for, and on December 12th, defendant, with a coat-case, left his father’s house in a manner to avoid observation, and took the train for Washington, where he stayed a few days. His visit there was, however, not for the purpose of remaining, but for the purpose of bidding good-by to a friend. While there he engaged passage for Cuba, on the steamer sailing December 23d, and wrote to his father, at Newark, to send his trunk. The father brought the trunk to the steamer and saw him sail. On arriving in Cuba, December 29th, defendant traveled for two or three weeks in the island and then took a sailing vessel for Mexico, and finally reached the City of Mexico, where he stayed two or three weeks. He says that while in the City of Mexico he made an arrangement for going in business with persons he met there. These arrangements, however, were not consummated, and he returned to the United States, arriving in New York early in February. He remained there up to the time of the hearing in April, 1897, subject to the directions of his counsel. On this state of facts I think it is clear that the legal domicile of defendant for the purposes of jurisdiction in this suit, at the time of the filing of the bill and of the services of the subpoena and notices, was in this state, and that the domicile of his origin and choice had not been at that time, or up to the hearing, abandoned for another. His intention to leave New Jersey was for an indefinite time, and from his acts, which, in cases of this character, are better indications than his words, I think the proper inference is that he left the state for the purpose of avoiding the obligations now sought to be enforced, and that his absence from the state and residence in any other place, either permanently or temporarily, depended mainly upon the course which these and other proceedings to reach the property he owned immediately before the marriage may take. I see nothing in the evidence to justify the conclusion that the defendant has as yet any other domicile than this state. Applying to these facts, therefore, the principles above stated, I hold that there is jurisdiction in this court to make a final decree for payment of maintenance out of his property within this jurisdiction, based upon the domicile of both parties and its control over the status by reason thereof. This being the case, the order for temporary alimony should not be set aside because of the manner in which the notice of' application for it and of the proceedings therein were served. Under all the facts now shown, service of notice of the application at the residence of his father was the best notice which could have been given, and the notice which the court would have directed had the facts now shown been proved. As to setting aside the service of the subpoena, application for this purpose was not strictly within the terms of the leave and special appearance, but this was no doubt due to oversight, and the petition which includes the application to set aside the service of the subpoena was not objected to on this ground at the hearing. The question of the legal service of the subpoena was fully argued, and decision of this question comes up regularly on this branch of the petition. The subpoena, under the statute, must be served át the “dwelling-house or usual place of abode.” This means, as the courts construe these statutes, the place of actual abode at the time of the service, not a legal domicile. Stout v. Leonard, 8 Vr. 492, 495.

The evidence shows, in my opinion, that his father’s residence was not at the time of the service the actual place of abode of the defendant, for the reason that he had left the state with the intention of remaining out of it for an indefinite time, and that his father’s residence after his departure ceased to be legally, within these statutes, his dwelling-house or place of abode. Had the absence been merely in order to escape service of process for a time and then return, such departure would not, according to many authorities, have changed his residence or place of abode under statutes providing for serving process at a residence or place of abode. Reg. v. Farmer, 1 Q. B. 637, 641 (1892); Queen v. Webb, 1 Q. B. 487 (1896). But the absence of any intention to return again after a definite time, prevents the rule in these cases from being applied. The service of the subpoena must, therefore, be set aside and proceedings should be taken to-bring in the defendant as an absent defendant. Absent defendants, in the language of the Chancery act (Gen. Stat. p. 405 § 18 § 172), are defendants “ who are out of the state or cannot on due inquiry be found herein, or who conceal themselves within the state.”

Order will, therefore, be advised setting aside the service of subpoena, but denying the prayer of the petition to set aside the-order for alimony pendente lite and the proceedings thereon.

The leave to enter a special appearance was granted in this-case without terms, but as a matter of practice it should be stated that the more correct practice seems to be to require, as a condition of granting such leave, that there be inserted in the order an undertaking or stipulation that the defendant would submit without further process to the orders of the court, if the point should be decided against him. Romaine v. Insurance Company, 28 Fed. Rep. 625 (Hammond, District Judge, 1886). The plain reason is that the special leave without such condition places the defendant in the position of drawing the opinion of the court without any risk, for if the court has no jurisdiction, by reason of failure to serve process, its decision that it has such jurisdiction does not settle this question so that it may not be questioned after judgment and in any court. Unless, therefore,, the defendant agrees to come in if the decision on the point of jurisdiction is against him, he should as a general rule be left to question the jurisdiction of the court in a form where all parties will be bound.

The application in this respect is on altogether different footing from one in which a defendant, appearing generally in the cause and submitting to the jurisdiction of the court, applies to-set aside an order for irregularity, or to be heard on the merits, for decisions on such applications will be finally settled in the cause itself.


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    Frederick W. Guild, receiver, v. Michael Meyer and Charles Metzger.
    [Filed November 22d, 1897.]
    1. Where a receiver appointed in supplemental proceedings files a bill against the judgment debtor and another person, alleging that defendants are carrying on a business which belongs to the judgment debtor, but is in the name of the other defendant to cover up the debtor’s property, and the allegations of the bill are denied by defendants’ answers, complainant is not entitled to a preliminary injunction or a receiver, on the ground of defendants’ sole ownership.
    2. Where the existence of a partnership is denied, the usual rule is not to appoint a receiver until that question is determined.
    3. A receiver appointed under the Supplementary Execution act (Gen. Stat. p. 1419 ¶ 26) is not entitled to recover a debt which was not in existence at the time of his appointment.
    4. When a receiver has been appointed in supplementary proceedings, and the judgment debtor is in partnership with another person, after notice to the partner of the receiver’s appointment, all his dealings with the debtor’s interest in the partnership are at said partner’s risk.
    5. A receiver appointed in supplementary proceedings in a case where the execution debtor was in partnership with another person, brought suit against said partners to realize the value of the judgment debtor’s interest in the partnership. — Held, that the receiver would not be entitled to a preliminary injunction to prevent the partner of said debtor paying over to him the profits of said business which accrued either before or after the appointment of the receiver.
    On application for preliminary injunction Heard on bill and affidavits, and answers and affidavits.

      Mr. Robert H. McCarter, for the motion.

      Mr. Samuel Kalisch, contra.

   Emery, V. C.

This is a bill filed by complainant, who is a receiver appointed on supplementary proceedings under an execution, and is filed against the judgment debtor, Meyer, and one Metzger. The object of the bill is to reach certain property and business now held and carried on in Metzger’s name, and to obtain a decree that Meyer is the owner of this business, or failing in this, to declare that Meyer is a partner in the business, and to obtain a decree for account of his interest and profits therein. An application is now made for the appointment of a receiver of the property and business, and an injunction against making payments to Meyer out of the business pending the decision of the cause.

The application is based upon two grounds or claims for ultimate relief.

First. That the property and business for which a receiver is prayed are really the property and business of the judgment debtor, Meyer, and the legal title thereto, if it is in the defendant Metzger, is so held in fraud of complainant as a creditor or representing creditors of Meyer.

Second. That the defendants, Meyer and Metzger, are in fact partners in the business; that this being so, Meyer has certainly an interest in the profits of the business and perhaps in the property, and that inasmuch as Meyer’s interest in the profits is, by the arrangements between the alleged partners, paid over to him as fast as earned, a receiver or preliminary injunction against such payment is necessary in order to give adequate relief, or in fact any relief, to complainant in case this claim as to partnership be well founded.

As to the first ground, the facts set up in the answers and affidavits amount to a denial of the ownership of the property and business by Meyer and of the allegations in complainant’s bill and affidavits upon which the claim of ownership is based. Under the usual rule, therefore, the complainant is not entitled to a preliminary injunction or receiver on the ground of Meyer’s sole ownership, and there are no circumstances in the case which bring it within the exceptions to the rule.

In reference to granting either an injunction or receiver on the second ground, that of Meyer’s interest either in the profits or property as a partner, the first material point to be noticed is that the partnership is denied both by Meyer and Metzger, and their claim is that the arrangement for his sharing in the profits is a payment for his labor and services as an employe or manager of the business for Metzger. Where the existence of a partnership is denied the usual rule is not to appoint a receiver until that question is determined, and the English practice formerly was to direct an issue to try the fact, the motion for receiver in the meantime standing over. Lind. Part. *552; Peacock v. Peacock, 16 Ves. 49.

This was the rule applied where the existence of a partnership was in dispute between the alleged partners themselves, and the complainant, who is, or represents, a judgment creditor of one of the alleged partners, can (at least ordinarily) have no greater or more extensive right to a receiver than the judgment debtor himself, under whose alleged partnership he claims. Ordinarily, therefore, the question of partnership or no partnership must first be settled before the court should undertake, by injunction, or receiver, to interfere with the custody or control of the property or business which, if no partnership exists, belongs absolutely to the defendant denying the partnership to manage as his own. But it must be further noticed that the complainant, as receiver, does not stand in the position of a person claiming for himself, as partner, the continued existence of a partnership, and claiming by reason thereof an interest in the property or in the profits accrued or to accrue. Complainant was appointed receiver by order of a judge made under the Supplementary Execution act, which declares (Gen. Stat. p. 1419 ¶ 26) that on his appointment he is entitled to the property and things in action of the judgment debtor belonging or due to or held in trust for him “ at the time of issuing said execution or at any time afterwards.” The court of errors and appeals, in Willison v. Salmon, 18 Stew. Eq. 257 (1889), has decided that a receiver, under such appointment, is not entitled to recover a debt which was not in existence at the time of his appointment, and this rule, as it now seems to me, would prevent the receiver from recovering in this suit any profits of the business earned by Meyer after the appointment of the receiver and due to him simply as a partner by reason of the mere continuance of the firm after the appointment for services thereafter performed. And as I now look at the receiver’s rights under the statutory appointment and on the basis that Meyer is a partner, his rights are limited to what was due to Meyer as a partner at the time of this appointment, and he is entitled to an account of what was then due Meyer as a partner on an accounting, following, if necessary, the subsequent transactions solely for the purpose of ascertaining and recovering what was then due. Seizure and sale on execution against one partner ordinarily dissolve a partnership (Lind. Part. *359), and this must be the effect so far as relates to an execution creditor who sets up the purchase under execution against the other partner. The execution creditor cannot become a partner. Helmore v. Smith, 35 Ch. Div. 436, 440.

Supplementary proceedings to reach the debtor’s interest in a partnership would, in this respect, seem to have the same effect as a seizure and sale under execution, and the receiver’s rights under the statute, as construed by the court in the above case, cannot extend further than to dissolve the partnership of the debtor as of the date of his appointment and the consequent transfer of the debtor’s interest, and to entitle him, as against the judgment debtor, to an account of the debtor’s interest as of that date. All dealings by the other partner, or alleged partner, with the debtor’s then interest, after notice of the appointment of the receiver, would be at his own peril.

In Coleman v. Roff, 16 Vr. 7 (Supreme Court, 1883), the court held that an assignment of choses in action made by a defendant in execution after proceedings for discovery, to an assignee who had notice of the proceedings, was void as against the receiver subsequently appointed, and Chief-Justice Beasley said (at p. 11) that such assignment, after filing a bill in equity and with notice thereof, would clearly be ineffectual. Whether, as against Metzger, the right to account in case a partnership be finally established as- existing should be fixed as the date of the commencement of proceedings or the date of notice thereof to Metzger or of the receiver’s appointment, is a matter for future determination, but, as it now seems to me, the right of the receiver as against Metzger, if he has any right by reason of the existence of a partnership, is to an account as upon dissolution from one of those dates. For the protection of this ultimate right, it does not seem to me that any preliminary injunction or receiver against Metzger is necessary, and it certainly should not be ordered pending the decision of the disputed question of partnership. The motion for injunction and a receiver at the present time will therefore be denied, but will be directed to stand over until final hearing.

Costs of the motion will be costs in the cause.


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    Caroline Seyfried et al. v. Andrew Stoll et al.
    [Filed December 2d, 1897.]
    An order of S., on S., to pay G. §1,000 “ for materials furnished your [S.’s] building,” is not an equitable assignment of any part of the fund which thereafter became due S. as contractor on said building.
    On bill of interpleader.

      Mr. George J. McEwan, for the defendants Dorsett et al.

      Mr. Alexander C. Young, for the defendants J. Gahagan’s Sons.
   Emery, V. C.

The complainant Mrs. Seyfried has paid into court, under decree made on a bill of interpleader, the sum of $588.98, being tbe amount due from her to the defendant Andrew Stoll, upon a building contract made with him for the erection of a house upon lands of Mrs. Seyfried.

The contest in the case arises between the defendants claiming priorities in the payment of the fund, which is not sufficient to pay all the claims in full. Their claims are set up in their respective answers, and the cause as between them is brought to hearing upon these answers pursuant to the general practice recognized in Kirkland v. Moore, 13 Stew. Eq. 106, 108. A state of facts has also been agreed on by counsel, and the principal dispute arising upon the answers and evidence relates to the priority of the defendants J. Gahagan’s Sons upon a claim of $1,109.27 (less $194.05), which claim, .if it has priority, will take the entire fund in court. These defendants, J. Gahagan’s Sons, on October 31st, 1894, delivered to the complainants the following order, signed by the builder, Stoll, and their claim of priority is based on the order:

“ Hoboken, N. J., Oct. 31st, 1894.
“Mrs. Caroline Seyfried pay to J. Gahagan’s Sons one thousand 00/100 Dollars for material furnished your building on the west side of Monroe Street 75 feet north of 4th street.
“11,000.00. A. Stoll.”

At this time Stoll owed J. Gahagan’s Sons $1,109.27, but no. payment was then due from Mrs. Seyfried to Stoll under the contract, and the order does not appear to have been accepted. The entire balance of the contract price then unpaid was $1,125, the amount of the last payment, but the building was not then finished, and, the contractor afterwards defaulting, the owner completed the building, and after the expense of the owner for completing the building was deducted, as provided by the contract,' the balance due to Stoll was the sum paid into court. All of the other defendants are claimants under the provisions of the Mechanics’ Lien law, by notice to the owner after demand upon • the contractor, and the dates of the service of their respective notices upon the owner are as follows: Timothy MV. Dorsett, for $60.35, notice served January 4th, 1895; John Gardner, $366.06, January 25th, 1895; Vanderbilt & Schill, $76.77, January 29th, 1895. Upon the facts admitted there' seems to be no question that, these notices operated as valid equitable assignments of the fund according to their respective dates. The question is whether the order in favor of J. Gahagan’s Sons is an equitable assignment in their favor of the fund which thereafter became due. This depends, in my judgment, upon the construction which is to be given to the order itself. No equitable assignment or agreement to assign the fund or any part of it, between Stoll and Gahagan’s Sons independent of the order,- is set up in the answer or appears in the proofs, nor have any facts been proved which are entitled to control the construction of the order in this respect. Some very high authorities hold that such agreement, even by parol, independent of the written order and collateral thereto, may be proved in order to establish an equitable assignment by the order, and others hold that parol evidence is admissible for the purpose of showing the intention and understanding of the parties, where the language of the order is ambiguous and the order is not negotiable. Fourth Street Bank v. Yardley, 165 U. S. 634 (1896), where a check was held to be an equitable assignment of a fund in bank, is a leading illustration of the former class, and Brill v. Tuttle, 81 N. Y. 454, of the latter. But the present case does not, either on the pleadings or proofs, fall within either of these classes, and the question whether there was' an equitable assignment of the fund, due or to become due from Mrs. Seyfried, miist therefore be determined by the construction and operation of the order itself.

The cases decided in our own courts hold that no particular form of assignment is necessary, and that equity, disregarding form, will hold any writing which plainly appropriates the fund to be an equitable assignment. Bower v. Hadden Bluestone Co., 3 Stew. Eq. 171; affirmed, 3 Stew. Eq. 340. But I have not been referred to any decision of our courts in which an equitable assignment has been held to have been made by an order, in which the order itself did not appear to designate and appropriate the fund in the owner’s hands, or part of it. This is the effect of the order in Bernz v. Marcus Sayre Co., 7 Dick. Ch. Rep. 275, 281 (Errors and Appeals, 1894). In Lanigan v. Bradley, &c., Co., 5 Dick. Ch. Rep. 201, the equitable assignment was made out altogether by parol agreement to assign and acts thereunder. Where the assignment depends upon the construction of the order itself, a plain.and sure test of construction is said to be whether the order or direction to the drawee, if assented to by him, would create an absolute indebtedness payable by him at all events, or whether it would create an obligation only to make payment out of the particular designated fund. 3 Pom. Eq. Jur. p. 291 1280, and cases cited. This test seems to me to be a sound one, and to be properly applicable to the present case. A simple acceptance of this order as drawn would, I think, clearly have bound Mrs. Seyfried to an absolute payment of the entire $1,000, and could not have been restricted or construed in her favor as obliging her to pay only out of a particular fund and to the extent only of this fund. The order did not designate or appropriate any fund out of which it was payable, and the statement that the debt was for material, &c., cannot of itself extend further than being a statement of the consideration of the order. I hold, therefore, that the order did not operate as an equitable assignment, and that the claim of J. Gahagan’s Sons, under this order, must be postponed to the claim of Dorsett and Gardner under their notices. The operation of these as equitable assignments has not been disputed. These claims, which together amount to $426.41, do not absorb the whole fund. And as to the residue a difficulty arises on the proofs as they stand, as to the priority between Vanderbilt- & Schill, and the defendant Leon Abbett, who was appointed a receiver under supplementary proceedings taken on a judgment obtained by J. Gahagau’s Sons upon their claim against Stoll. The notice of Vanderbilt & Schill was served upon Mrs. Seyfried on January 29th, 1895. The judgment of J. Gahagan’s Sons was obtained on January 28th, 1895, and the state of facts agreed on states that “ thereupon an order for discovery was made, and thereafter Leon Abbett was appointed receiver, &c., on February 4th, 1895.” The statute as to the effect of the appointment of the receiver (Gen. Stat. p. 1419 26) is to vest him with the choses in action due at the time of issuing the execution, and it was held in Coleman v. Roff, 16 Vr. 7, approved in Willison v. Salmon, 18 Stew. Eq. 257, 259, that as to the judgment debtor and a person haying notice of the proceedings, the title of the defendants relates back to the time of issuing the execution.

I will hear counsel, therefore, if they wish, as to disposing of the residue of the fund without further proofs.