author: Gummere, Chief-Justice.

text:
    Camden Safe Deposit and Trust Company, respondent (complainant below), v. Citizens' Ice and Cold Storage Company et al., appellants (defendants below).
    [Argued March 21st, 190G.
    Decided March 4th, 1907.]
    Where a receiver sells property subject to the lien and encumbrance of a specified mortgage, the purchaser at such sale is thereafter estopped from denying its validity.
    Appeal of Pennsylvania Iron Works Company from a decree advised by Vice-Chancellor Bergen, whose opinion is reported in 69 N. J. Eq. 718.

      Mr. Norman Grey, for the appellants.

      Mr. George Reynolds, for the respondents.
   The opinion of the court was delivered by

Gummere, Chief-Justice.

The bill in this case was filed to foreclose a mortgage given by the Citizens’ Ice and Cold Storage Company to the Camden Safe Deposit and Trust Company, as trustee, to- secure the payment of forty bonds made by the Citizens’ Ice and Cold Storage Company of $1,000 each. To this bill the defendant, the Pennsylvania Iron Works Company, interposed two defences—first, that the mortgage was ultra vires and therefore invalid and void; second, that the bonds which the mortgage was given to secure were sold for less than their face, and that therefore the mortgage, if not absolutely void, is a valid security, only to the extent of the amount actually received for the bonds. It was held by the court of chancery that these defences were not open to it, and a decree was entered for the full amount of the' principal which the mortgage purported to secure, less $8,000, which had been paid on account thereof, together with the interest due thereon.

From this decree the Pennsylvania Iron Works Company have appealed.

The material facts necessary to be considered upon this appeal are as follows: Some years after the giving of the mortgage in suit the Citizens’ Ice and Cold Storage Company became insolvent, and went into tire hands of a receiver. There were at that time other liens upon the mortgaged premises, each of which was of later date than the complainant’s mortgage. A controversy having arisen in the insolvency proceedings as to the validity of these subsequent liens, an order was made by the court of chancery directing the receiver to sell the mortgaged premises “free and clear of all liens and encumbrances, excepting only that said property be sold subject to the lien and encumbrance of” the complainant’s mortgage. The receiver thereupon offered the premises for sale at public auction upon the terms specified in the order, but failed to receive a satisfactory bid. The Pennsylvania Iron Works Company then submitted to the receiver a written oilier to purchase the property for the sum of $25,000, “free and clear of encumbrances as set out in the order for sale, subject only to the first mortgage held by the Camden Safe Deposit and Trust Company, trustee.” This offer was submitted by the receiver to the chancellor, who thereupon directed the property to again be put up for sale at public auction, and fixed the upset price at $25,000. This latter order was executed by the receiver and the property was struck off and sold to the Pennsylvania Iron Works Company for the sum of $25,000, “subject to the lien and encumbrance” of the complainant’s mortgage, and to the balance of principal and interest that may be due and that may grow due thereon.”

It is apparent from the facts recited that the parties interested in the insolvency proceeding, including those creditors who held liens subsequent in date to the complainant’s mortgage, united in conceding the validity of that instrument, and the right of the complainant to enforce it for its full amount less such sums as had been paid upon the principal. It is equally apparent that the Pennsylvania Iron Works Company, by purchasing the premises subject to the' complainant’s mortgage, got them for a sum less, by just the amount of the mortgage, than it would have done if the sale had been made free from its lien, and reduced by this amount the sum which would otherwise have been raised to satisfy the debts due to the creditors of the insolvent corporation. The injustice of such a claim as it now sets up must condemn it. To repeat, in substance, what was said by Chief-Justice Beasley, speaking-for this court in Warwick v. Dawes, 26 N. J. Eq. (11 C. E. Gr.) 556, a case almost identical in its legal aspect with that now before us: “If the purchaser can succeed in its defences against this mortgage it is painfully obvious that it is allowed to violate the condition upon which it acquired the property as such condition was understood and consented to by it, and by all the other parties interested. By the repudiation of this security it is not the mortgagor, nor its creditors for whose account the sale was directed to be made, who are benefited, but the purchaser, and this to the loss of those creditors whose claims remain partly unsatisfied by reason of the fact that the sum produced by the sale under the condition stated was insufficient to pay them in full. Nothing can be more inequitable than the claim of this purchaser. It asks the court to help it violate the fair understanding on which the sale was made, and its own express promise, in order that it may retain monéy which does- not of right belong to it and for which it has given absolutely nothing in the way of consideration.” In our opinion the circumstances under which tire sale was made preclude the appellants from maintaining successfully so unfair a position.

The decree under review should be affirmed.

'For affirmance—The Chief-Justice, Garrison, Fort, Garretson, Hendrickson,' Pitney, Swayze, Reed, Bogert, Yre-DENBURGH, VrOOM, GREEN, GRAY-13.

For reversal—None.


source: Caselaw Access Project

author: Garrison, J.

license: Public Domain

text:
    George F. Marsden, general guardian, &c., respondent, v. Howard White et ux. and the New Jersey Building Loan and Investment Company, appellant.
    [Submitted March 26th, 1906.
    Decided November 19th, 1906.]
    Marsden, having a mortgage which was a first lien, executed a release by which he surrendered his priority of lien in favor of the mortgage of a building and loan association, Which was subsequently foreclosed without making Marsden a party, and the property bought in by the association and conveyed, with general covenants, to White, who improved it. Marsden subsequently filed a bill to foreclose his mortgage, making White and the association defendants. White, by way of cross-bill against the association, set up the actual and threatened breach of his covenants; arising from the existence and foreclosure of the complainant’s mortgage, and prayed that the association be decreed to pay said mortgage debt. From this decree which wás entered against it the association appealed.-—■ Held, that such decree deprived the association of the benefit of its release from the complainant’s mortgage, and that the doctrine of avoidance of circuity of action is not to be applied in favor of one defendant in a suit in equity if the result is to deprive another defendant of a substantial defence to the claim of the complainant.
    On appeal from a decree advised by Vice-Chancellor Stevens.

      Mr. Barton B. Hiitchinson, for the appellant.

      Messrs. John S. Applegate & Son, for the respondent White.

      Mr. John B. Foster, for the respondent Marsden.
   The opinion of the court was delivered by

Garrison, J.

This suit was begun in- the court of chancery by the filing of a bill to foreclose a mortgage for $500, which was a first lien upon the mortgaged premises. The bill was filed by George E. Marsden, general guardian of Hester H. Marsden, an infant. Howard White was made a defendant because he owned the mortgaged premises, and the New Jersey Building Loan and Investment Company was made a defendant because of a purchase-money mortgage made to it by White, to whom the association, after buying in the property upon the foreclosure of a mortgage held by it, had conveyed the premises, with covenants, that were broken by the existence of the complainant’s mortgage. The decree of the court below is not that the mortgaged premises be sold to- pay the amount due on the complainant’s mortgage, but that the New Jersey Building Loan and Investment Company pay to the complainant the principal and interest of his said mortgage, and that if the same be not paid within thirty days the complainant or White may. apply for execution against the said building company, and for such other order in respect to the land mortgaged as they may deem proper. From this decree the New Jersey Building Loan and Investment Company has appealed.

The situation that led to the making of this decree cannot he gathered from the pleadings, which are at radical variance with the proofs upon material points. The case made by the proofs is this: In 1898 Isabella C. Marsden was the owner of a lot of land in Monmouth county, upon which, on January 17th of that year, she executed a mortgage to Newton and A. T. Doremus to secure the sum of $500, in which mortgage her husband, George F. Marsden, joined. This mortgage was given to.the Doremuses to secure a grocery bill owing to them by the Marsdeus. Subsequently George I?. Marsden, who was general guardian, of his infant daughter, Hester, took $500 of the infant’s money and paid this bill to the Doremuses, and took from them an assignment of the $500 mortgage to himself, as such general guardian of his daughter. This was on February 23d; 1899. Later in 1899 Isabella desired to obtain a loan of $4,000 from the New Jersey Building Loan and Investment Company, to be secured by a first mortgage on her said property. Her husband, to aid her in obtaining such loan, executed, as the general guardian of his daughter, Hester, a release under seal, by which he surrendered to the said building company, as mortgagee, the priority of the mortgage he held to secure his daughter, and covenanted that said $4,000 mortgage should be a prior encumbrance upon his wife’s property. This release was placed on record and the mortgage for $4,000 executed and delivered to the building company, and by it was subsequently foreclosed, without making George F. Marsden, general guardian, whose assignment had not been recorded, a party thereto. The decree entered in this foreclosure established the debt due to the building company at $4,228, to pay which the property was sold and bought in by the company for $3,000, and subsequently sold and conveyed by it, by a warranty deed, with covenants against encumbrances and for quiet enjoyment to Howard White. The consideration for this conveyance was $4,500, of which $1,700 was paid in cash and a purchase-money mortgage given for $2,800, which has since been reduced by pajunents to $1,600 and assigned to one Scudder, with a stipulation by the mortgagee, the building company,'that $1,600 of the mortgage debt remained unpaid. White, who has been since in possession of the property, has improved it at a cost of $2,500.

To the bill now filed by Marsden, general guardian, to foreclose his $500 mortgage, White has obviously -no defence, and his answer sets up none. His defence, if such it can be called, is that the defendant, the New Jersey Building Loan and Investment Company, should be compelled in this suit to malee equitable amends for the actual and threatened breach of the covenants ■ contained in its conveyance to him by paying off the complainant’s mortgage, the existence of which constitutes one of the said breaches and the sale under which would precipitate the other. As set forth in Write’s cross-bill, the grounds of this claim to equitable relief are—first, because the company conveyed to him with a covenant against encumbrances, which was broken when made by reason of the existence'of the complainant’s mortgage; second,, because the company warranted the title it conveyed and covenanted for quiet enjoyment, which will be broken if White is evicted under a foreclosure sale; and third, because he was induced by false representations made to him by the building company to believe that complainant’s mortgage had been satisfied or extinguished. The facts on' which the first and second of these contentions rest are established by the production of the deed to White from the company. As to the third, the averment of the cross-bill is that the defendant—that is, White—was informed by the New Jersey Building Loan and Investment Company that said mortgage had been paid and satisfied; that the said company had made the holder of said mortgage a party to its foreclosure suit and that all rights under said mortgage had been cut off, and that said mortgage was not a lien upon the premises to be conveyed to him by said company, and that relying upon these statements he omitted to have any search made and accepted the deed-of the New Jersey Building Loan and Investment Company with a covenant against encumbrances,' and that he had not instituted any action at law for the breach of said covenant because his counsel advised him that he had a complete defence in the present suit in equity. Not one of these allegations of the cross-bill is supported by a syllable of proof, although in its answer • thereto the building company, in addition to a categorical denial, quoted in full a letter written by said White to the secretary of the said defendant company, at about the time it took its $4,000 mortgage, which showed that it was White who had made the arrangement by which the mortgage of the complainant was postponed to that of the building company, and that in this letter was enclosed the release of which mention has been made. In its answer the building company submits that White’s remedy is at law upon the covenant set forth in his cross-bill, and prays the benefit of a demurrer. Against this demurrer White’s cross-bill was protected by its allegations of fraud and misrepresentation, but when, upon the coming in of the proof, those allegations dropped out of the ease, the cross-bill stood upon no higher ground than it would have stood upon demurrer, with such allegations left out. The issue, however, went to trial before the vice-chancellor, when the whole case made by White, plus the admissions of his cross-bill and minus its unsupported charges, was that, knowing of the existence of the complainant’s mortgage, he took from' the building company the conveyance for the mortgaged premises with full covenants, and has since expended money in its improvement. This last circumstance, which did not appear in the cross-bill, had apparently conclusive weight with the learned vice-chancellor, and led him to advise that the complainant’s decree be not that the mortgaged premises be sold to pay his debt, but that the defendant, the New Jersey Building Loan and Investment Company, pay the complainant the principal and interest of his said mortgage and so* make good its broken covenant with White against encumbrances and avert the breach of its covenants against eviction. This result is reached upon the ground that as tire building company stands toward White as the principal debtor for the complainant’s mortgage, and as White’s legal measure of damage against the company in case of eviction is what he paid for the property, with interest, which will not repay what he has expended for improvements, White’s equity is to havfe the company pay the complainant’s mortgage and thus avert a foreclosure sale of the property, and that this equity of White’s is superior to the company’s equity to have the complainant’s mortgage satisfied by a foreclosure and sale of the mortgaged premises and a distribution of the proceeds as if the company’s mortgage were still existent, White taking the company’s share of such proceeds, the difference between which and the amount he paid for the property, with interest, would be tire measure of his damage for the breach of the company’s covenants; hence the decree by which the company is required to pay to the complainant the amount of his mortgage in full without regard to what the complainant would receive on his said mortgage out of tire proceeds of a sale of the- mortgaged premises.

In this result and in the reasoning by which it is reached we are unable to concur, not only because, ás the vice-chancellor realizes, it ignores the right of the company to respond to its broken covenants by the payment of the legal measure of damage, but also because it ignores the fact that the complainant had surrendered the priority of his mortgage to that of the company by a release which the company has a right in equity to set up and enforce in this suit, if it is to be called upon by a personal decree to satisfy the mortgage of the complainant.

The equity of the defendant White, which was adopted by the vice-chancellor, rests at bottom upon the doctrine of the avoidance of circuity of action, of which it was said in the case of Brewing Company v. Clement, 59 N. J. Law (30 Vr.) 48: “Avoidance of circuity of action is at best a doctrine of convenience—a secondary equitjr, so to speak—and not to be resorted to in the face of either legal rule or substantial right.” The present case, it will have been observed, is not the ordinary, one where a covenantee whose covenant has been broken is entitled by force of the doctrine in question to credit his legal measure of damage on his unpaid purchase-money. If the building company were seeking to enforce the mortgage it took back from White, such deduction would be made in order to avoid circuity of action, and the same is true if such mortgage was 'being enforced by its assignee, who would then have his action over against the building company, neither of which, however, is the ease here, where the contest is, so to speak, triangular, the complainant having a right to foreclose against White, White, having a legal right against the company and the company having a right to enforce its release against the complainant, if it is to be called upon to satisfy his mortgage in this suit. This last-mentioned circumstance militates conclusively, in my opinion, .against the applicability of the doctrine of the avoidance of circuity of action to the present situation. By such doctrine, which is not so much a principle of equity as it is a dispensation from law, a mortgagor-covenantee, who has a legal action for breach of covenant against his mortgagee-covenantor, is permitted, when brought by the latter into- a court of equity, to credit his legal measure of damages upon such complainant’s mortgage; in such ease the amount of the mortgagee’s loss and ■the legal measure of tire mortgagor’s damages are equal, and it is this equality that makes the equity in question. But such doctrine has obviously no application to a case where the covenantor, not being tire mortgagee and not having brought the covenantee into a court of equity, has a legal stipulation with the complainant in such suit by force of which tire sum that will satisfy such complainant’s mortgage may be less than the principal and interest thereof and less than the legal measure of the covenantee’s damages. In such case the equality that makes the equity is lacking, hence to apply the rule in avoidance of circuity of action is to deprive the covenantor of the benefit of his legal stipulation with the complainant. If, for instance, the stipulation in the present case had been that the building company might satisfy the complainant’s mortgage for fifty cents on the dollar, a decree that the ‘ building company, in order to relieve White from proceeding at law on his covenant, must pay the complainant’s mortgage dollar for dollar, would be manifestly inequitable. That such case, upon principle, would not be different from the one before us appears from the opinion of the learned vice-chancellor, which states that if the $4,000 mortgage be considered as still in existence, the proceeds of a sale under lire complainant’s mortgage would go to- pay, first, the principal and interest of tire said $4,000 mortgage, and second, the complainant’s mortgage, which would be thereby discharged as an encumbrance on the mortgaged premises, even though the amount of such proceeds was less than the amount due on said mortgage. Thus effect would be given in this suit to the complainant’s release of the priority of his mortgage in favor of the building company. When, however, it came to the making of a decree, the learned vice-chancellor either unduly minimized the rights of the building company under tire complainant’s release or else did not recognize that by compelling the company to pay the principal and interest óf the complainant’s mortgage he was in fact depriving the company of all benefit of such release. I am unable to brush aside this right of a defendant to -set up as against a complainant a legal compact between- the parties beneficial to such defendant. Such is always the right of every defendant, hence I distrust the soundness of any result by which one defendant is deprived of its undoubted right in order that another defendant may have dispensation in equity from proceeding upon his remedy at law against such defendant. If the doctrine of avoidance of circuity of action produces this result then such doctrine is thereby demonstrated to be inapplicable. If the allegations of White’s cross-bill as to misrepresentation had been sustained, a different case might have been presented. The case here, however, in so far as it depends upon the covenant against encumbrances, is simply that White took his conveyance from the building company and made improvements, knowing of the existence of the complainant’s mortgage, against which he was protected by a covenant that was broken when made. The exact amount for which the grantee could hold his grantor was thereby liquidated, hence it seems clear to me that no improvement such grantee chose to make upon the property could impose upon -his grantor any greater burden. This is also true with respect to the warrant of title and the covenant for quiet enjoyment. The law prescribes just what one party may recover from the other for the breach of these covenants, and this measure of redress by legal intendment forms part of the contract of the parties, so that the mere existence of such a covenant implies that the parties have agreed with each other, the one to accord and the other to accept, upon the happening of a certain event, a known measure of damages. Such measure of damages lias not only, as pointed out by the-learned vice-chancellor, been established by the decisions of o-ur supreme court from an early period (Stewart v. Drake, 9 N. J. Law (4 Halst.) 139; Holmes v. Sinnickson, 15 N. J. Law (3 Gr.) 313; Morris v. Rowan, 17 N. J. Law (2 Harr.) 305; De Long v. Spring Lake Co., 65 N. J. Lato (36 Vr.) 10), but has also;, in principle, been followed by this court in a case where the land had been appreciated by improvements, viz., Gerbert v. Trustees, 59 N. J. Law (30 Vr.) 160.

That the court of chancery is bound by the legal rule thus established, at least in the opinion of Vice-Chancellor Van Fleet, is shown in Post v. Stiger, 29 N. J. Eq. (2 Stew.) 554, where he says: “Its breach was coeval with its existence, and the complainant’s right accrued as soon as the covenant was made. His damages were certain and fixed, being limited inflexibly to the consideration paid and interest.”

Such was the legal position of these defendants at the time the company conveyed to White. Since that time the covenantor, neither alone nor acting in concert with the covenantee, has done anything to alter this legal situation, and nothing that the covenantee acting alone has chosen to do can alter it. By no act of his can the covenantee create a situation that renders it inequitable to require him to abide by his covenant. His adventitious appearance in a court of equity at the suit of another person and for a different purpose can surely work no such result, yet it is just this fortuitous circumstance that is given effect by the decree below and by the conclusions upon which it is based. The reasons for such conclusion, and, as it seems to- me, its fallaejr, appear in the following summary of the learned vice-chancellor : “As the company has warranted the title and covenanted for its quiet enjoyment and has thus encouraged White to go on and improve, it seems to me that his equity to- compel payment by the company is greater than the company’s equity to compel pajunent out of the land.” This conclusion seems to me to involve two unsound propositions, the first of which is that one who has taken a legal covenant for the breach of which the law has established a known measure of damages is thereby encouraged to damnify himself to an extent that such measure will not repay, and the second is that such voluntary damnification gives rise to an equitable dispensation for such covenantee from the legal incidents of his covenant, even though such dispensation imposes on the covenantor a measure of redress that is alien to his obligation.

The true rule upon this subject is that stated by Justice Sutherland in Kinney v. Watts, 14 Wend. 38: “A vendee when he purchases may insist upon special covenants which will secure to him a perfect indemnity for any expenditures or improvements upon the premises in case of eviction, but if he takes the general covenants of warranty and quiet enjoyment lie has no right to complain that the law does not afford him full compensation for the loss and injury which he has sustained by eviction.” To the same effect, Rawle Cov. Tit. (5th ed.) 234, and 11 Cyc. 1175.

If I am at all correct in the view that the rights of these contending defendants over the actual or threatened breach of their covenants must be measured by such covenants, the circumstance that the covenantee had expended money in improving the property purchased of the covenantor was not a ground for equitable interference, or at least should not have prevailed over the covenantor’s right to have the amount that would satisfy the mortgage adjusted in the complainant’s suit in accordance with the stipulation between those two parties. It is therefore clear to me that the defendant’s cross-bill is devoid of equity, or, rather, that such equity as it has does not go to the extent of requiring the other defendant, the building company, to pay off the complainant’s mortgage without regard to the complainant’s release of the priority of such mortgage. It has not been overlooked that there is a view that might justify a court of equity in refusing to recognize the priority accorded to the mortgage of the building company by complainant’s release, and that is that such release was made by a trustee without any consideration moving to his cestui que trust of which by the terms of the release the party who now sets it up had notice. The case, however, has been tried upon the theory that the release was valid, and upon this appeal there is no such jeopardy of the infant’s property as would justify, a court of equity of its own motion to intervene for tire protection of her interests. We have therefore refrained from either considering the question or from calling for a reargument in order that the views of counsel might be heard thereon.

From the foregoing considerations it results that the defendant White’s cross-bill should be dismissed; that with this bill dismissed there is no ground for the personal decree against the defendant, the building company, and that with the elimination of this personal decree there is no occasion for the determination of the amount recoverable on the complainant’s mortgage under the terms of his release of its priority. In accordance with these views the decree below is reversed and the cause remitted to the court of chancery to be proceeded with as if said cross-bill had not been filed; .the infant to be made a party and an answer attacking her guardian’s release filed in her behalf if it appears to the court below that such course is required for her protection.

For affirmance—Reed, Bogert—2.

For reversal—The Chief-Justice, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Yredenburgh, Yroom, Green, Gray, Dill—--12.


text:
    Henry Post, appellant, v. Sadie Hagan et al., respondents.
    [Submitted March 26th, 1006.
    Decided March 4th, 1907.]
    1. If a child, upon whom a parent by reason of advanced years or infirmity has in fact come to be dependent, accepts from such dependent parent a voluntary conveyance of all of his or her estate, a court of equity, moved by the apparent improvidence of such gift, will presume that the donor did not appreciate the consequence to himself of his voluntary act, and hence will place upon the donee the burden of overcoming this presumption by showing that the donor in making the conveyance had the benefit of proper independent advice.
    2. Proper independent advice, in this connection, means that the donor had the preliminary benefit of conferring fully and privately upon the subject of his intended gift with a person who was not only competent to inform him correctly as to its legal effect, but who was, furthermore, so disassociated from the interests of the donee as to be in a position to advise with the donor impartially and confidentially as to the consequences to himself of his proposed benefaction.
    3. The cases of Eayclock v. Haydock’s Executors, 31/ N. J. Eq. (7 Stew.) 570, and Slack v. Rees, 66 N. J. Eq. (21 Dick.) J¡.lf7, distinguished and the latter case applied.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson, who filed the following conclusions:
    My conclusion is that the bill of complaint should be dismissed.
    1. There are facts proved in this case which taken by themselves cast the burden upon the defendant Mrs. Hagan of showing that the deeds which she received from her mother are untainted by fraud of any kind.
    Mrs. Telfer, the grantor, was sixty-three years of age at the time of her death, on June 16th, 1899. The deeds were executed June 9th, 1899, and conveyed practically all the grantor's estate. The complainant and the defendant Mrs. Hagan were the two children of Mrs. Telfer, Mrs. Hagan being somewhat older than her brother. The evidence is inadequate to show that Mrs. Telfer, during her lifetime, had given her son, the complainant, what would naturalfy be deemed his portion of her estate. For ten years preceding her death Mrs. Telfer lived with the defendants, who appear to have occupied a comfortable house on a farm at Seeaucus. The complainant, who had a wife and children appears to have resided under conditions of poverty in small quarters which he rented or were rented for him in Hobo-ken.
    At the time the deeds were executed Mrs. Telfer was confined to her room, if not to her bed, suffering from the disease from which she died, and undoubtedly she was contemplating her death as an event which was near at hand. Physically Mrs. Telfer was, to a very large extent, if not exclusively, within the absolute control of the defendants.
    2. Stating the presumption established against the deeds by the foregoing facts in the strongest possible way, in my opinion the defendants have discharged the burden cast upon them and have established by evidence, which is entirely convincing to my mind, that these deeds were the voluntary intelligent act of Mrs. Telfer in execution of a purpose which she formed in her own mind unaffected by any influence or suggestion from the defendants or either of them.
    The main fact which tends to explain and vindicate the transaction under investigation is that the complainant for years had been a drunkard and a spendthrift. At the time the deeds were made he was forty-one years of age, and it does' not appear that he was making or had made any effort to reform. Iiis status appears to have been fixed as that of a person entirely unfit to be entrusted with property. His mother, Mrs. Telfer, distinctly recognized this status long before her last illness began. The witnesses on both sides abundantly show that Mrs. Telfer for a long time aided her spendthrift son and his family with contributions of money. Mr. Frank Sturges, a brother of Mrs. T'elfer, who was called on behalf of the complainant, and whose testimony was not in the slightest degree impeached, testified that Mrs. Telfer paid her son’s rent and grocery bills, and stated to the witness that if she gave him the money to pay them she would have to pay them over again “because he would go and blow it in.” This same witness also said that at an interview which he had with his sister in the first part of May, at a time when it appears distinctly she was not confined to her room and was evidently competent to attend to business, she expressed a desire to “get over the hill” in order to consult counsel with a view to having “the property fixed up,” and at that time she told this witness that she “wanted to leave the property to Henry as long as he lived and then after his death to go to his children,” and that she declared “if I leave it to him he will drink it up, and he will have no home and the children will have nothing.” Mrs. Bosen, a sister of Mrs. Telfer and a witness for the complainant, testified that Mrs. Telfer often told her that if Henry would not drink she would deed him the farm, hut that she knew that if she gave the farm to him he would waste it, and that “she wanted it fixed so that he could not waste it, so that Mary, complainant’s wife, would have something to take care of the children.” This witness also testified that in the first part of May Mrs. Telfer expressed the hope that she would get strength so that she might “go up and have it fixed, have the papers fixed so that Mary would have something to take care of the children.”
    Cornelius B. Sturges, a brother of Mrs. Telfer, testified on behalf of the complainant that Mrs. Telfer told him, at his house at Hnion Hill, some months before her decease, that she was going to have her children-“share and share alike,” but she also said: “1 will have it fixed so that Hank cannot spend the money; that it will go to his children.”
    It seems plain from the testimony that Mrs. Telfer for a long time before her death must have intended not to die intestate and leave one-half of her little estate to descend to this spendthrift son, who appears to have been capable of squandering it within a very short time.
    3. The question arises what a woman in Mrs. Telfer’s position would naturally do under the circumstances above stated. The evidence satisfies me that for a long time prior to her death, while Mrs. Telfer was not only in full possession of her faculties, but able to go back and forth between Secaucus and Hobo-ken or Jersey City without difficulty, she contemplated “making-papers” which would dispose of the farm or of half of her entire estate in such manner that her son could not waste it, while he and his family would have the benefit of it. She talked about conferring with lawyers, but with abundant opportunity for obtaining such assistance she refrained from doing so. It is significant that in none of the quite numerous statements of the witnesses in regard to Mrs. Telfer’s declarations there is no clear indication that the “papers” with which she contemplated “fixing” up her affairs included a will. One witness referred to a paper of some sort which had been made ten years before Mrs. Telfer’s death, and by which some disposition of property among her children was effected, but while this witness stated that Mrs. Teller destroyed the paper it does not appear whether such paper was a will or a deed. While Mrs. Teller may have refrained from employing counsel because of an unwillingness to incur the expense, or may have for some other reason merely procrastinated in regard to the matter, it is probable that most persons would surmise from the evidence in this case that this old woman evaded the discharge of what probably she deemed her duty on account of a sentiment or superstition which exercises a controlling influence over many minds. Not infrequently persons who are strongly influenced by this sentiment or superstition allow themselves gradually to approach death, which they see before them as inevitable within a few weeks or months, while they know that they are violating most solemn obligations in respect of the disposition of their property after death by refraining from making a will.
    But whatever may have been the cause of Mrs. Teller’s conduct, the fact is proved beyond dispute that while she recognized that she was beset with difficulties in endeavoring to make a proper disposition of her property, and that she ought to seek competent legal advice and assistance, she deliberately refrained from seeking such advice and assistance. If she had gone to a competent lawyer she probably would have learned that a spendthrift trust might be created by will or by deed which would present a complete solution of the problem which she was endeavoring to solve alone. But whether a spendthrift trust could have been devised which would have satisfied Mrs. Telfer’s mind, and would have accomplished the object which she had in view, relating to the support of her son and to the protection of the property from his improvidence, is a matter about which it is. vain to undertake to speculate. Mrs. Telfer, although proved to have been a woman of force of character and intelligence, presumably'knew nothing of spendthrift trusts, and for some reason refrained from seeking legal advice. She stared at the problem before her and apparently allowed months to go by during which she slowly but surely approached her end endeavoring to solve this problem without help from anyone.
    In my opinion the evidence shows that the conveyance of this property to Mrs. Hagan, was the solution which Mrs. Telfer finally reached of the difficult problem which she had long been studying. I think also that the evidence would probably satisfy most minds that from Mrs. Telf-er’s point of view with the knowledge that she had, what she did was altogether wise and prudent. Mrs. Telfer probably knew that if she left the farm or any property to her son- for life that such life estate would be within his control and would be forthwith squandered. The choice that Mrs. Telfer seems to have finally made was between allowing one-half of her estate to descend upon her death to this spendthrift, who would immediately waste it, or to convey the whole of the estate in her lifetime to her daughter. If she were to die intestate she firmly believed that the half of her estate which her son would receive would soon be dissipated, and he and his family would derive no permanent benefit from it. On the other hand, the evidence indicates distinctly that Mrs. Telfer contemplated that the gift of the whole estate to Mrs. Hagan would involve the administration of it, or a part of it, by Mrs. Hagan for the benefit of this unfortunate son. This devise, which is attacked as inofficious, appears, after all, to have been intended in part at least as a settlement in the nature of a spendthrift trust, however impossible it may be for any court of law or equity to deal with it in that character. It is not an uncommon thing for testators of intelligence, with the aid of counsel, to make an absolute gift which the legatee knows well is to be sacredly applied to the benefit of some person unnamed in the will. The -evidence shows that Mrs. Telfer, whose maiden name was Sturges, comes'from good stock. There is nothing in this case which reflects upon the character of any member of this family, three generations of which are represented among the witnesses, excepting what has been already set forth in regard to the complainant. The defendants impressed me as honest, trustworthy people. The indications to my mind are very strong that the defendant Mrs. Hagan, who is somewhat older than her brother, the complainant, might well be entrusted by her mother to occupy in a measure a relation to her brother, after her mother’s death, similar to that which the mother in her lifetime had occupied. Mrs. Hagan, on her direct examination, testified, frankly that the day after the deeds were delivered to her she had a conversation with her mother in which her mother said: “The property is yours, don’t give him a dollar, but don’t let him want for bread.” On her cross-examination she repeated this solemn injunction which her mother gave her practically on her dying bed.
    It is not surprising that Mrs. Telfer, with a daughter like Mrs. Hagan, should have concluded that the conveyances which she made were the wisest and best means of accomplishing all the objects which she had in view in relation to the support of her son and his family.
    The testimony of Judge Paxton directly supports the explanation of these conveyances above set forth. This experienced lawyer, in view of the character of the deeds, naturally felt it his duty to proceed with great caution and to be sure that the deeds expressed the final'and intelligent determination of the grantor’s mind. He accordingly reminded Mrs. Telfer that she had a son and she replied: “I know what I am doing and I think he has all that he deserves. I am disposed to leave it to the generosity of my daughter to. give him (if he is entitled to-anything) what he is entitled to.” Elsewhere the witness says that Mrs. Telfer said that “she was disposed to trust her daughter to do what she might think was right and what he might be deserving of.”
    4. T shall not discuss the evidence at length. The complainant’s case stands on the allegations of the bill that the deeds were obtained by fraud and undue influence in the abuse of fiduciary relations, and at a time- when the grantor’s mind had become impaired by disease to such an extent as to render her incapable of performing any legal act.
    There is no evidence that can support -these extreme allegations. The proof of a fiduciary relation need not be considered. I find as a fact that when these deeds were made the grantor, though weak, was in the full possession of her intellectual faculties, and that her will power was practically unimpaired, and that as a matter of fact no influence of any kind was exerted upon her by or on behalf of the defendant or either of them leading to the execution of these instruments. Of course, the witnesses who know most about the execution of these deeds are the defendant Mrs. Hagan and Judge Paxton. The testimony of these witnesses is throughout, I think, characterized by frankness and apparent honesty. Judge Paxton received the order to draw the deeds about a week before he prepared them and took them to Secaucus for execution. There seems to have been no urgency about the matter, and Mrs. Hagan’s testimo^, which is corroborated I think, indicates that she, Mrs. Hagan, thought that her mother intended to make a will, and voluntarily procured information which she thought would be required in carrying out that purpose. When Judge Paxton found it convenient on account of an appointment at North Bergen he drew the deeds and took them to Mrs. Hagan’s house in Seeaucus. He had no personal acquaintance with Mrs. Telfer but was acquainted with very many members of her family. He knew of her and she knew of him. Judge Paxton testifies most positively to the effect that Mrs. Telfer though physically weak was entirely rational, and the picture which he presents is that of a woman who is engaged in carrying out a plan of her own.
    It is perhaps worth noticing that the answers in this case, which are not under oath, set forth that the deeds in question were made in order to make the property received by the daughter equal in amount to the property which the son had already received in the lifetime of his mother. The statements made by Mrs. Telfer to Judge Paxton, which he testifies to most positively, accord with this allegation of the answer and no doubt were the origin thereof. Mrs. Hagan, however, in her testimony does not stand her case on any such claim. She admits that she received all her mother’s estate charged with an obligation, the moral force of which she does not undertake tO' deny.
    The exact matter to be decided in this cause must be kept ever in view while examining the evidence. We are not inquiring whether these conveyances were in fact wise and prudent transfers of property, or must be considered as effecting a harsh and unjust exclusion of the complainant from a share of the estate of his mother to which he had a moral claim; or whether if Mrs. Telfer had been properly advised and aided by counsel she would have made these conveyances. The sole question is, did Mrs. Telfer act voluntarily and intelligently in making these conveyances, or were they obtained from her by fraud or undue influence ?
    Without stating the evidence bearing on this question I have endeavored to make plain what seems to me to be the point of view from which the examination of the evidence should be conducted and from which it appears to' me quite plain that the question must be answered in favor of the defendants.

      Mr. James A. Gordon, for the appellant.

      Mr. Charles C. Black and Mr. William T. Hoffman, for the respondents.
   The opinion of the court was delivered by

Garrison, J.

To the facts found, and found correctly, as we think, by the learned vice-chancellor, he applied the rule as to undue influence laid down, in Haydock v. Haydock’s Executors, 34 N. J. Eq. (7 Stew.) 570, whereas in our opinion he should have applied the rule as to independent advice laid down in this court in Slack v. Rees, 66 N. J. Eq. (21 Dick.) 477.

Both cases were decided by this court, and the essential difference between them is that the rule of Slack v. Bees has specific application to cases in which the gift if valid has the effect of stripping the donor of all or practically all of his property, whereas the rule followed in Haydock v. Haydock applies generally to gifts that bear no such relation to the donor’s entire estate.

Slack v. Rees goes further than Haydock v. Haydock to just the extent required by this additional circumstance that marks the distinction between them.

This distinguished circumstance, namely, that a person already aged or infirm or otherwise dependent should give to the one upon whom he thus depends practically his whole living beyond recall, and at the very time when apparently he had most need to retain it, raises in the mind of a chancellor the presumption that the donor may not have appreciated the irrevocable character of his act or that he did not foresee its legal consequences to himself. This .presumption of apparent improvidence gives rise to the special rule followed in Slack v. Bees which may be called ‘the rule of independent advice. By force of this rule, if a person upon whom another has in fact come to be dependent accepts a gift from such dependent person of all of his or her estate, a court of equity, moved by tire apparent improvidence of such a gift, casts upon the donee the burden of showing that the donor had the benefit of proper independent advice. Proper independent advice in this connection means that the donor had the preliminary benefit of conferring fully and privately upon the subject of his intended gift with a person who was not only competent to inform him correctly as to its legal effect, but who was furthermore so disassociated from the interests of the donee as to be in a position to advise with the donor impartially and confidently as to the consequences to himself of his proposed benefaction.

The practical distinction between this rule and that applied by the learned vice-chancellor in the present case is so clearly pointed out by Chief-Justice Gfummere in Slack v. Rees that I cannot do better than cite here a pertinent extract from the opinion delivered by him in that ease, the essential facts of which, by the way, were exactly those of the case now before us: “The normal relation of parent and child, as it had existed in earlier years, had been reversed, and the daughter had come to be the guardian of the father. In this situation the law presumes that a gift made by the parent to the child is the product of undue influence, and casts upon the latter the burden of proving the contrary. A decision upon this point in the case, however, is rendered unnecessary, as we conclude that the conveyance must be set aside, because in making it the donor did not have the benefit of competent and independent advice as to its effect.

“That the absence of such advice will invalidate a deed of gift, Avhich contains no power of revocation, where a relation of trust and confidence exists between the donor and donee, is not denied, and, indeed, it was so held by the vice-chancellor. He seems to have considered, however, that such relationship was not shown, unless it was made to appear that the donee occupied such a dominant position toward the donor as to raise a presumption that tire latter was without power to assert his will in opposition to that of the donee. But this is not the situation. The rule has a much broader sweep. Its purpose is not so much to afford protection to the donor against the consequences of undue influence exercised over him by the donee as it is to afford him protection against the consequences of voluntary action on his part, induced by the existence of the relationship between them, the effect of which, upon his own interests, he may only partially understand or appreciate.” In an earlier part of the opinion the essential facts referred to were thus stated: “On the day before his death he (the father) executed a deed to his daughter, conveying to her two houses and lots in the city of Trenton. He owned no other real estate, and his personal property was insufficient for the payment of his debts.”

That the facts of the present case bring it within the rule of Slack v. Rees, both as to the relationship of the parties and the necessity of independent advice, appears fully from the conclu.sions of the vice-chancellor. That the improvidence of the gift was apparent even to the recipient of it appears in certain testimony given by the donee and not cited by the vice-chancellor. I refer to the answer given by the donee to a question put to her by the vice-chancellor, after the witness had testified that her mother had told her to get the deeds recorded, but that she had not done so. The question was why she had not'done so, to which her answer was: “Because I have heart trouble and I never expected my mother to die, and if I should die before my mother my children would have it, the property, and what would my mother have had ? She would not have had anything.” This naive answer discloses at once the precise situation to which the rule of Slack v. Rees applies, as well as the reason for the rule and the necessity for its application.

That the donor in the present case ought to have had independent advice must be taken to be entirely established. That she did not have it is also clearly shown. Judge Paxton, the lawyer who drew the deeds and took the donor’s acknowledgmerits, was employed for that purpose by the donee and appeared for her in the court below. She called upon him with the old deeds, from which he was instructed to draw two new deeds, in all respects similar to the old ones saving as to the names of grantor and grantee, and when he had the deeds ready he was to attend upon the donor and have them executed. His instructions were both limited and explicit. These instructions he carried out. He was in no .sense the adviser of the donor and at no time acted in that capacity. His onty remark to the donor, as I recall it, was that cited by the vice-chancellor, viz., that he reminded her that she had a son. The consequences to the donor’s son of the disposition she was making of her property, and her repeated expressions of a desire to- provide for him or his family, are not material, in the present aspect of the case, save as they throw light upon the donor’s lack of knowledge and her need of advice. It may be true, as the vice-chancellor suspects, that if she had known of such a thing as a spendthrift trust she would have made such a disposition of part of her estate; it is equally probable that if she had understood the doctrine of precatory words she might have impressed such a trust in favor of her son upon the conveyances made to her daughter-—indeed, in a vague way, she seemed to have thought that she had done so. However well founded in the testimony these surmises as to the donor’s intentions or desires may be, they do no more than emphasize her need of counsel, not with respect to the protection of her son, but of herself. The fundamental error of the learned vice-chancellor as to the rule to be applied by him to such a case appears from the concluding words of his opinion, in which, in summarizing the case before him, he says: “We are not inquiring whether if Mrs. Telfer had been properly advised she would have made these conveyances. The sole question is, did Mrs. Telfer aGt voluntarily and intelligently in making these conveyances, or were they obtained from her by fraud or undue influence?” This is precisely the error pointed out in Slack v. Rees, in the citation above quoted.

For the reasons there stated, the question considered by the vice-chancellor as the sole question was not the question upon which the case turned, while the question that he did not consider was not only an essential inquiry in the cause, but under Slack v. Reas was absolutely dispositive of it in favor of the appellant.

The decree of the court of chancery will be reversed, and the record remitted with instructions to that court to enrer a decree setting aside the conveyances in question.

For affirmance—None.

For reversal—Ti-ie Chief-Justice, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Reed, Bogert, Vre-DENBÜRGIÍ, VROOM, GREEN, GRAY, DlLL—14.


author: Fort, J.

text:
    James G. Delaney, respondent, v. Hettie Cary Hills Delaney, appellant.
    [Argued March 9th, 1906.
    Decided November 27th, 1906.]
    1. For a single act of adultery by a wife, a divorce will not be granted to a husband who either connived at such act, or, in legal contemplation, consented to it.
    2. It is not necessary- to find words or statements of the -husband- indicating connivance or consent. If his conduct indicates an intent, or even a willingness that the act of adultery may take place, or even culpable negligence in not preventing it, the maxim volenti non jit injuria applies, and the decree will be denied.
    3. Consent, or willingness, on the husband’s part that his wife should commit adultery is a mental state, and is to be inferred from his conduct, just as the willingness of the wife to yield her person to a paramour is to be inferred from her conduct.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Emerjq whose opinion is reported in 69 N. J. Fq. 602.

      Mr. Thomas S. Henry, for the appellant.

      Mr. Charles M. Meyers and Mr. Edward M. Colie, for the respondent.
   The opinion of the court was delivered by

Fort, J.

This is a suit for divorce on the ground of adultery.

The court of chancery found the facts to justify the conclusion that the defendant was guilty and granted the decree prayed for.

Several of the judges in this court were unable to reach that result,, but we think that, even conceding the act of adultery alleged to have been proven, still the decree should not have been made, in this case, granting to the petitioner the divorce prayed for.

The petitioner and the defendant were married on July 4th, 1900, at Vancouver, British Columbia. They lived together as husband and wife until January 17th, 1905, which was two days after the alleged adulterous act of the defendant. There is no proof of any improper association with other men after the marriage of- the defendant to the petitioner, up to the 15th day of January, 1905, when it was alleged the defendant was guilty of the adultery for which the decree was made. In all the proof there is shown but one single instance of the absence of the defendant from the home of the petitioner, either day or night, which even he alleges to have been suspicious. This single occurrence was upon the evening of Thursday, January 13th, 1905. That then the petitioner informed his wife he might be compelled to go on a trip, and took his bag, apparently pre^ pared for that purpose. He returned home in the evening, not having gone as he anticipated, and found his wife absent, and she did not return until about midnight. She had in the afternoon gone to New York, as she says, to purchase a few articles for her husband and herself, and had, after making the purchases, gone to ONeilhs oyster house in that city. While there she called up by telephone Miss Elizabeth R. Kelly, an acquaint1-anee, and requested lier to come to the restaurant, which she did a little before eight o’clock. She tried to persuade Miss Kelly to go home with her, and Miss Kelly, either at defendant’s suggestion, or on her own motion, called up Mr. John C. Fawcett, a friend of Miss' Kelly, and requested him to come to meet them. Pie lived in Brooklyn, and did not arrive until about ten o’clock. It was too late at that time for Miss Kelly, as she thought, to go to Newark, so they sat a few minutes and then went to the ferry of the Delaware, Lackawanna and Western railroad with defendant, coming over to the Hoboken side, and left her at the train to go to Newark, and they returned to New York to their respective homes.

Both Miss Kelly and Mr. Fawcett have been called and testified. Their evidence is clear and frank, and there is nothing to suggest that they are not persons of excellent character and entirely worthy of belief. It may have been indiscreet for the defendant to do as she did, but there is nothing in the incident to indicate any wrongdoing.

When she arrived home that night the petitioner had retired and fixed the door so that her night key would not open it. She was unable to enter her home. The petitioner appeared, finally, at the door and refused her admission. He dressed and came out, and; as he says, refused her entrance to his home, and started with her to take her to the Continental Hotel. By both his evidence and hers they went out of the apartment upon the public street and walked and talked for some time (probably for an hour), but finally came back to the apartment and went in, each going to their respective rooms. The petitioner declares that the defendant was intoxicated, and that he had to carry her upstairs, whereas her companions of that night declare she was not. He also testifies that while upon the street with his wife she admitted she had been out with Fawcett and that she had had intercourse with him. The language in which the petitioner tells the story which he alleges his wife told him is so profane and vulgar that it is not quoted here. It seems impossible to give credence to it, but he says it occurred, and that he was thus led to believe, in fact, was told, by his wife, that she had been guilty of adultery.

The defendant did not arise the next morning before her husband left. He returned to the house between one and two o’clock in the afternoon and brought with him Aubery Lockett, an employe of the Lambert Hoisting Engine Company, with whom the petitioner was also employed. lie had known Lockett for some years. They were undoubtedly friends. When he thus came home with Lockett the defendant was still in bed. Lockett was a stranger to the defendant. He says he had seen her. once some years before when with the petitioner at his home. The defendant denies ever .seeing him before.

The petitioner took Lockett into his wife’s bedroom and introduced him to her, by his own admission, in this way: “Lockett, this is the damn whore that bears my name, Mrs. Delaney.” And lie accused her of being out the night before with Fawcett, and says she replied: “If she was, he was a. gentleman, and she liked him better than she did him, the big old slob.” This is the account of the introduction given by Lockett.

The petitioner and Lockett remained, Lockett says, in the defendant’s bedroom for fifteen minutes, and drank whiskey there, and, for some part of that time, the petitioner went out of the room and left Lockett there alone with the defendant. It also appears that, while thus in the room, the petitioner endeavored to get his wife to drink of the whiskey which he and Lockett were drinldng, which she refused to do. The petitioner and Lockett then left the house and went to New York. While there they drank at various places and returned to Newark in the early evening, stopping in Newark at several drinking places and also drinking there. They were drinking cocktails and whiskey, and were evidently quite under the influence of liquor.

The petitioner states that they went to New York on business, but that they failed to find, on this afternoon, the person whom they were seeking.

About nine o’clock in the evening they returned to the apartments of the petitioner, and went into the parlor and .also into Mrs. Delaney’s room, she being still in bed, and they, remained in there for some fifteen minutes. During all this time they were drinking. Then, after that, they retired.

About four o’clock the next morning the petitioner wakened Lockett and had him get up and dress and gu out to Murray’s saloon, in Newark, where they again drank several cocktails. Returning home about six-thirty o’clock in the morning, they found the maid at the door, and opened it and let her in. Thereupon each of them went to their respective rooms and laid down upon the bed, as we think, without undressing, other than possibly the removal of their coats.

The defendant arose and dressed after the maid came in, and moved about the house, giving orders, and undoubtedly, under the proof, went to the room in which Lockett was at least twice, when the maid was with her, and at one time went into1 the room and pulled down the window shades and came out and closed the door. These two instances are testified to by the maid, as to the truthfulness of whose testimony there appears to be no reason for question. Lockett, the maid said, appeared to be asleep—at least he did not give any indication that he was awake.

While these two incidents were occurring the defendant was in her street dress. She subsequently disrobed and went to hér own bed, claiming that she was ill and felt bad from the treatment which her husband had inflicted upon her, as she alleges, on the previous Thursday night, when she returned from New York, as above stated.

The room which the defendant occupied was a room just off the parlor, and the room which Lockett occupied was between the parlor and the kitchen, the door of the room which Lockett occupied being not more than ten or twelve feet from the entrance to the kitchen.

The maid testifies that she was in the kitchen during the whole time.

The petitioner says that he again arose about eight-thirty o’clock in the morning, and went to tire room of Lockett, and there found Mrs. Delaney in the room, with her knee upon the bed in which Lockett was lying, and alleges that Lockett was entirely disrobed and that the defendant was in her night dress. He then states that he addressed her in this way: “You damned whore, you are even seducing my friend.” And that he dragged her from the room into her own room, and that there was quite a scene and quite a scuffle. The maid testifies that she heard nothing of this, and, so far as she is aware, nothing of the kind occurred, although she was within easy hearing distance of the scene, and the kitchen door was open, and the petitioner would have been compelled to pass the door in going to Lockett’s room. Lockett testifies that the petitioner said to him at the time of the occurrence: “Lockett, 1 don’t blame you. Get up and dress yourself, and come on with me to New York. Business is business. I don’t care; I don’t blame you.” Lockett testifies to what may be deemed a statement that he had had intercourse with the defendant.

It appears, further, that Lockett did not then get up, nor did the petitioner (who went again to his own room), because the maid testifies that she served the petitioner and Lockett with breakfast on that morning at about half-past ten, and that they went out together, and, admittedly, they went to New York.

There was no word of condemnation, or criticism or complaint, on the part of the petitioner toward Lockett, at the occurrence which he said took place, under the circumstances just described.

When they returned from New’ York that night, where they were together all day, they returned together. They had been drinking during the day with customers, and they drank in Newark after they returned, probably, if their story is accepted, not together, but separately, yet in the same saloon, and while they say they were not friendly and- were not drinking together, Lockett testifies, and the petitioner admits it, that when they walked out of the restaurant at Newark on the Saturday evening of the day when this adultery is said to have occurred, they took a car, and when they reached the residence of the petitioner, the, petitioner said to Lockett: “Come in with me; I am afraid this woman has done something to herself'—■ committed suicide or something.” Lockett alleges that he saw Mrs. Delaney that night; that something was said to her about himself and Eawcett, but that he cannot recall what it was.

Taken as a whole, this evidence presents a most remarkable story. If the adulterous intercourse did occur, as alleged, it is difficult, to believe that it was not the result of the hope that it would occur, perhaps even of the plan of the husband that it should occur. But it is incredible that a husband, knowing of a tendency in his wife to go astray, should introduce her in the way which it is proven he did in this case; should take a stranger into her bedroom, when she was in her night dress; should drink and tender her drink, and tender his friend drink, under such circumstances, without knowing that he was inviting the very act which was finally consummated; that such conduct amounts to negligence, must be admitted on all sides. .

By the twenty-second section of our Divorce act (Revision of 1902 p. 609), it is enacted:

“If it appeal- to the court that the adultery complained of shall have been occasioned by the collusion of the parties, and done with the intent to procure a divorce, or that the complainant was consenting thereto, theD no divorce shall be decreed.”

This language, “that the complainant was consenting thereto," is quite as broad and should be given the same effect as the common law rule of connivance in defeating a divorce.

It is not necessary to find words or statements of the petitioner indicating connivance or consent. If his conduct indicates an intent, or even a willingness, that the act of adultery may take place, or even culpable negligence in not preventing it, the maxim volenii non fit injuria applies, and the decree will be denied.

If the conduct of the petitioner was such as to impute to him a desire that his wife should drift into lewdness, and he, with the belief that she had a tendency in that direction, did nothing to guard her against it, or to protect her from it, then connivance and consent may be inferred.

We think that in the following respects the conduct of tire petitioner imputes a desire on his part to lead his wife into lewdness, and showed an intent on his part to connive at her conduct:

1. He introduced her as a whore to a stranger.

2. He malees this introduction in her bedroom, and while there recounts, in the presence of that stranger, an alleged confession on her part of illicit intercourse with one Fawcett, and says that she was out all night the night before.

3. He knows that drink is her danger point, and that if she has gone astray it was because of this, and he invites her to drink with him and the. stranger in her bedroom, while she is in bed, with nothing on but her night dress.

4. After this kind of talk and this sort of introduction, he leaves this stranger in her bedroom, to sympathize with her, as the stranger says he did, in her troubles with her husband, and the stranger states that he suggested that she tell her husband that she had been to a show the night before when she was out, or make some sort .of an excuse for her absence.

5. He takes this stranger into his wife’s bedroom a second time, at nine o’clock in the evening of the same day, and the night prior to the morning in which he states the adulterous intercourse occurred, and they remain there drinking for some time.

6. He puts the stranger in a room next to his wife’s, with the doors of the bedroom in which he sleeps open, and that bedroom door so located that his wife must pass it to go b> the bathroom for toilet purposes.

7. He declares that his wife was at that time, when in her bed, intoxicated, and that he knew it.

8. He wakes Lockett up at four o’clock in the morning and takes him out to a saloon for more liquor, and then returns him to the room next his wife’s.

9. After the alleged adulterous intercourse occurred, as ho alleges, he utters no word of condemnation, but treats the adulterer friendly, and breakfasts with him, in his own house, within an hour or so afterwards, and tells him at the time of the alleged discovery that he did not blame him; that he did not care, and to get up and dress himself and come on with him to New York; that business was business.

10. The evidently friendly relationship for a long time existing between Lockett and the petitioner, and the fact that Lockett was a subordinate in the business they were engaged in. .

11. That during all this time his conduct was not such toward his wife as the law requires of him when he had suspicion or a belief that she was likely to fall, in this way, instead of protecting her, he threw temptation in her way, and, we believe, under the evidence, intentionally did so.

We think that while he did not say, he willed—that he, in effect, consented to that of which he now complains. Voluit sed non dixit.

Consent or willingness on the part of a husband that his wife should commit adultery is a mental state, and is to be inferred from his conduct, just as the willingness of the wife to yield her person to a paramour is to- be inferred from her conduct. Hence, in determining whether in the present case this inference should be drawn from the petitioner’s conduct, a fair question for us to ask is, what more could he have done to bring about the adulterous act than he did ? In other words, what did he leave undone that would be likely to conduce to' that result ?

The wife and the man whom the petitioner brought home with him were strangers to each other. The presumption was that Lockett would not assume her to be lacking in chastitj', or abuse the hospitality of his friend and business superior. On the eontrary, the presumption is that Lockett would both respect her and also believe that sexual intercourse with her would so outrage her husband that the seducer’s life might be the forfeit. The presumption of chastity was, therefore, the wife’s protection, and the strongest deterrent to the advances of a would be adulterer. Obviously, if Lockett on the occasion of this first visit was to have carnal knowledge of his .friend’s wife, these irresunrptions must be removed. This the petitioner promptly proceeds to do by his initial words of introduction, by which, at one and the same time, Lockett is disabused of all idea of the wife’s chastity, and the wife is apprised that Lockett will regard her as unchaste and as having lost the marital esteem which would lead her husband to avenge any act of impropriety towards her. Thus the barriers of respect and self-respect, the strongest barriers against tire advances of a stranger, áre swept away by the sole act of the petitioner. These barriers being removed, opportunity must still be afforded. This, as has been shown, the arrangement of tire domicile amply provided.

If anything be yet lacking it is desire; whether rightly or not, liquor is popularly supposed to have this -effect—“to provoke desire,” even though it may take away performance. Hence Lockett was abundantly supplied -with alcohol before the visit, during the visit and afterwards, and is even awakened almost in the dead of night and taken out to be restimulated, and then returned to his bed. Liquor was also offered by the petitioner to his wife, and left where she had access to it, notwithstanding he knew of its baneful effects upon her. And all this was done by a husband who believed that his wife was unchaste, and that, only the night before, she had made attempts to solicit the embraces of a stranger.

We return, then, to the question: What did this petitioner leave undone to bring about the result of which he now seeks to complain? What more could he have done to bring it about than he did ? I can think of nothing. All that the wife did, all that Lockett did and all that the petitioner did are rationally explicable only upon the inference that the husband’s normal attitude of dissent to the debauching of his wife had, to the knowledge of all parties, been negatived by the petitioner’s own acts. And in such a case the negation of dissent is the affirmation of consent—at least so a court will regard it when invoked by a husband to extend its aid to him, upon the theory that such dissent upon his part in fact existed, and had been normally manifested.

This I understand to be the trend of many well-considered cases.

For definition and elements of “Connivance,” see 14 Qyc. A44> “II. Connivance.”

In Timmings v. Timmings, 3 Hagg. Ec. 76, Lord Stowell says: “He (the husband) is perfectly at liberty to let the licentiousness of the wife take its full scope, but that he is to contrive the meeting—that he is to invite the adulterer, then to take him and give him the opportunit3>-, I do think amounts to legal prostitution.”

In Moorsom v. Moorsom, 3 Hagg. Ec. 105, the same learned judge says: “It must have'been seen that he has practiced a train of conduct which led to her guilt and which he foresaw and intended should lead to it. Mere passive connivance is as much a bar as active conspiracy.”

In 2 Bish. Mar. & D. § i-5 et seq., it is declared:

“It is a well established principle that conduct on the part of the plaintiff amounting to a conniving at the act urged as a ground for granting a divorce, will be a good defence to the action.”

In Pierce v. Pierce, 3 Pick. 299, Chief-Justice Parker says: “One instance of adultery wa.s proved, hut there is reason to think that the husband was the cause of its being committed. It would be a dangerous principle to establish that a husband, who has suspicions of the infidelity of his wife, shall be allowed to lay a train which may lead her to' the commission of adultery in order that he may take advantage of it to obtain a divorce.”

In Cane v. Cane, 39 N. J. Eq. (12 Stew.) 158, Vice-Chancellor Van Fleet says: “If a husband sees his wif-e in danger, if he sees her in a position where she is likely to become subject to the power of the blandishments of a man whose character he knows to be bad and intentions evil, and he does nothing to warn her or to withhold her from his hands, but allows her to be led to her ruin and his dishonor, his conduct in law amounts to consent, and the statute declares that no divorce for adultery shall be decreed when it appears that the party applying consented thereto.” And he quotes the language of Chancellor Zabriskie in Hedden v. Hedden, 21 N. J. Eq. (6 C. E. Gr.) 61, in which case it was held that if a husband sees what a reasonable man could not see without alarm, or if he knows that his wife has been guilty of any weakness whereby he is put upon his guard respecting her weakness, he is called upon to exercise peculiar vigilance and care over her, and if he sees whát a reasonable man could not permit, and makes no effort to avert the danger, he must be supposed to see and mean the result.

This court, in Warn v. Warn, 59 N. J. Eq. (14 Dick.) (at p. 642), approved of the doctrine stated in the Hedden and Crane cases, but held that there was nothing in that case “that the complainant did or that he failed to do which could reasonably impute to him a desire or anticipation that his conduct would prompt her to drift into-lewdness.” And said further: “Unless this intention could under the circumstances be imputed to him, it is irrelevant to consider whether it was his duty to have acted toward her differently than he did,” thus clearly implying that if the facts and circumstances were such as to impute to the petitioner or complainant “a desire or anticipation that his conduct would prompt her to drift into lewdness,” that this, if established, would amount to connivance or consent.

On the principle of the cases just cited are the eases of Morrison v. Morrison, 136 Mass. 310; Dennis v. Dennis, 68 Conn. 186; 57 Am. St. Rep. 95 (note at p.101); Wilson v. Wilson, 154 Mass. 194; 26 Am. St. Rep. 237 (note at p. 239); Cairns v. Cairns, 109 Mass. 408. See, also, note to Hawkins v. Hawkins, 25 Am. L. Reg. (N. S.) 98.

In Bourgeois v. Chauvin, 39 La. Ann. 216, the court says: “Where the conduct of the husband indicates an intent to have his wife transgress, or to let her do so, undisturbed, this constitutes a connivance, and will act as a bar to his suit for divorce.”

In 19 Am. ■& Bng. Bncycl. L. '889, tit. "Connivance ” a general discussion of the subject will be found and a citation of other authorities.

A careful consideration of the proof in this case, conceding all that the petitioner claims to have occurred, leads us to the conclusion that, if it did occur, it was by his procurement and consent, and that he was conniving at the result, and that he sought to give his wife liberty to commit the act for the purpose of obtaining the divorce which he has applied for; or, if this is not so, that at least, in the language of Chancellor Zabriskie, he saw what a reasonable man could not see without alarm.

A decree of divorce on the ground of adultery will not be granted under such circumstances.

The decree of the court of chancery is reversed, and the record will be remitted, with directions to enter a decree in the ease for the defendant, refusing the divorce prayed for.

For affirmance—The Chiee-Justice, Pitney, Swayze, Reed, Vroom, Green—6. • •

For reversal—Garrison, Port, Garretson, Hendrickson, Bogert, Vredenburgh, Gray, Dill—8.


author: Garretson, J'.

text:
    Thomas J. Clement, appellant, v. Young Amusement Company and Theodore J. Lapres, respondents.
    [Submitted March 27th, 1906.
    Decided November 19th, 1906.]
    An unsigned draft of lease of property for a term of six years does not satisfy the statute of frauds so as to authorize the court of chancery to decree its execution and performance.
    On appeal from a final decree advised by Vice-Chancellor Grey.

      Mr. Howard (¡arrow and Mr. Joseph B. Wilson (of the Philadelphia bar), for the appellant.

      Messrs. Thompson & Cole, for the respondents.
   The opinion of the court was delivered by

Garretson, J'.

This case involves the application of the statute of frauds.

The appellant alleges that he entered into an agreement with the defendant for a lease of certain premises, for a term of six years, at an annual rental of $3,000, and that a lease in writing was prepared containing the terms of the letting, which was assented to both by the appellant and the defendant, the amusement company, and although the same was never signed by either of the parties to the lease it, in connection with the circumstances in the case, sufficiently satisfied the statute of frauds. The appellant by the bill in this case seeks to enforce this lease.

The amusement company admits negotiations with the appellant for a lease, but denies that any agreement was ever reached by the parties.

It denies thg.t William E. Shackelford, its manager, was authorized by the compa^ to make an agreement for this lease, and it nowhere appears that John L. Young, its treasurer, was so authorized.

The appellant testified that on the 29th of June, 1903, he negotiated with Shackelford for a lease upon the terms above stated, paid $50 on account of the rent and took from Shackelford the following receipt;

“June 29th, 1903.
“Received of M. J. Clement fifty dollars on account of candy stand now being occupied by T. Lapres for the year nineteen hundred and four.
“Youngs Amusement Co.,
“$50. W. E. Shackeleobd, Mgr.”

The appellant further testifies that he caused a draft ,of a lease to be prepared by his counsel, which embodied the agreement he had made with' the defendant’s manager; that he took it to Young, its treasurer, and left it with him, and he made some alterations in it, and that appellant and Young went over it together and some other alterations were made; Young expressed his satisfaction with it and appellant was also satisfied with it and said he would sign it; that he would go and fix it up and would meet Young at the office of the company’s counsel to sign that lease, saying there was no use changing'it, having agreed upon it- It does not appear whether the appellant procured a new. copy of the lease which had been altered or took that same copy with him, or in fact had any copy of the lease with him, but he testifies as follows:

“I went to Thompson & Cole’s office, and; there sat the three [assuming he means the counsel, Shackelford and Young] in there; Shackelford jumped up with another lease; shoved that in my face, and said, ‘You sign this lease or nothing; you shan’t change a letter or word in it;’ I said, T came to sign the lease me and the captain had agreed upon,’ and he said, ‘You sign that or nothing;’ I said, T don’t know whether the captain will let me sign, that—will you, Captain?’ he said, ‘Oh, yes, I will let you sign it;’ I said, ‘Let me take this up to my lawyers; I want to get a little advice on it. Will you let me take it out?’ Shackelford said, ‘I don’t know whether the captain will let you take it out—will you, Captain?’ ‘Yes, I will let you take it.’ I said, ‘You know I want to get a little legal advice in these things.’ ”

He says lie carried it up to Carson & Godfrey, bis attorneys; tliey looked over the lease, and in pursuance of what they did he did not sign it.

'It seems, from this testimony, that the appellant and the company never reached any agreement as to the terms of the lease.

But, assuming- that the draft of the lease which the appellant says was altered and-agreed to by Young, and which he is now-seeking to enforce, set forth the terms of the agreement between the parties, and that Shackelford was authorized to make the agreement and Young was authorized to make alterations in it, it was never signed by either of the parties to it, and so did not satisfy the requirements of the statute of frauds.

The receipt above mentioned is some evidence of negotiations between the parties and'an agreement as to something, but it contains none of the terms of the lease which the appellant claims was agreed upon.

There was never any delivery of possession of the premises in question to the defendant, nor any evidence to show any expenditure of money under the contract or in part performance of the contract. There is some testimony as to the purchase of two movable machines to be used in connection with the business proposed by the appellant to be carried on in the premises, and also some expenditure in connection with the removal of some glass doors or screens from another place of the appellant to be used in the premises in question, but these were no more-expenditures in the carrying out the contract than would be the cost of a stock of goods to be placed in a store agreed to be leased or of the furniture intended to be used therein.

The decree dismissing the bill is affirmed.

For affirmance-—The Chief-Jus tice, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Eeed, Bogert, Vredenburgh, Vroom, Green, Gray, Dili—14.

For reversal—None.