text:
    Chas. J. Smith Company, Incorporated, v. Mary D. Anderson et al.
    [Submitted June 4th, 1915.
    Decided August 23d, 1915.]
    1. In a lease of land for the life of the lessor, the lessee was given an option to purchase the land within one year after the death of the lessor. —Held, to be a conditional contract for the sale of the land, and enforceable against the devisees of the lessor.
    2. An option given to a lessee to purchase the demised land after the death of the lessor, is contractual and not testamentary, in violation of the statute of wills.
    3. An option to a lessee to purchase the demised land is not unilateral, and will be enforced in equity.
    4. An agreement for an option to purchase land, in effect, is that "the lessor will hold the land in reserve for the lessee during the stipulated period, and will convey it if and when the latter elects, and from this undertaking he cannot recede without the other’s consent.
    5. An option given to a lessee is a completed purchase of a right to have a conveyance if the purchaser shall choose to buy upon the terms named.
    6. No estate in the land passes under a covenant for an option to a lessee to purchase, but the purchaser acquires such an inchoate right therein as will, pending the option period, be protected in equity, and upon his complying with the terms of the contract, his equitable estate thereby acquired will be clothed in legal form.
    7. A covenant in a lease for an option to purchase relates to and runs with the land.
    S. An option in a lease to purchase the land after the death of the lessor, Held to be properly exercised by tendering the money to one of the devisees.
    9. Quaere. Is an option in a lease to purchase land exercisable only after the death of the lessor, a conversion of the realty from the date of the option? Lawes v. Bennet, 1 Cose Oh. 166, criticised.
    10. An option in a lease to purchase lands, is property, which may be transferred and enforced' by the assignee.
    On demurrer to bill.

      Mr. John F. Reger, for the complainant.

      Mr. Maximilian T. Rosenberg, for the defendants.
   Backes, V. C.

The object of this bill is to specifically enforce a contract for an option to purchase land exercisable only and exercised after the death of the optioner. The bill is met by a demurrer.

The complaint sets forth this history: On July 1st, 1899, by an indenture of lease, Eliza Ii. Annin demised to Alvina T. Anderson for and during the natural life of the lessor, at a yearly rental of $400, a coal and lumber yard, consisting of two tracts of land in the borough of Somerville in this state.. The lease stipulates for the removal of tenant’s buildings, the payment of taxes, the effecting of fire insurance, and then provides as follows:

“In consideration of the above agreement to be performed by the said party of the second part and of the further sum of one dollar and other good and valuable consideration in hand paid to the said party of the first part, the said party of the first part for herself, her heirs, executors, administrator’s and assigns doth hereby covenant and agree to and with the said party of the second part, her heirs, executors, administrators and assigns, that the said party of the second part at the expiration or termination of this lease and within one year thereafter shall have the privilege of purchasing from the estate of said party of the first part said lands and premises hereinbefore leased and rented to her for the sum of $4,000 and the said party of the first part doth hereby authorize, direct and empower her heirs or executors to convey to the said party of the second part by a good and sufficient deed, the hereinbefore described premises free from all encumbrances at the price of $4,000 aforesaid.”

On May 1st, 1902, Alvina T. Anderson assigned the lease to Charles J. Smith and Selah H. Schoonmaker, who formed the Smith-Schoonmaker Company, and to it the lease was transferred. The lessor consented to the assignments, and the assignees attorned to her until she died on January 2d, 1913, leaving a will, the fifth clause of which reads:

“Fifth. All the rest, residue and remainder of my estate, real and personal I give, devise and bequeath unto my son Alexander G. Anderson and my daughter-in-law Mary D. Anderson share and share alike to have and to hold their heirs and assigns forever.”

Alexander G. Anderson, one of the residuary devisees, and a daughter, E. Mary Anderson, were nominated and qualified as executors. No power of sale was given by the will. "Within a few months after the death of the lessor, the Smith-Schoonmaker Company gave notice to the executors of the acceptance of the option, and paid to them the purchase price and received an executor’s deed under date of February 25th, 1913. Schoonmaker, one of the principal owners of the company, retired and Smith formed the Chas. J. Smith Company, Incorporated, the complainant, to whom the premises were conveyed on January 6th, 1914. From the time of the making of the lease to the present time, the lessee and the respective assignees have carried on the .coal and lumber business on the premises, 'and during the existence of the tenancy, and relying upon the privilege and option of purchasing the same at the death of the lessor, they enlarged the planing mill thereon and installed therein new and improved machinery and made other valuable and permanent improvements. After the delivery of the executor’s deed, the grantee and the complainant made other valuable and permanent improvements upon the premises and exercised complete ownership and control thereover, without notice of any adverse claim, until February, 1915. On the twenty-seventh of that month Mary D. Anderson, one of the two devisees mentioned in the residuary clause of the will of the lessor, commenced an action in ejectment against the complainant in the supreme court to recover possession of an undivided half part of the land, in which issue has been joined. In that action the complainant cannot successfully defend, because the will of the lessor did not confer upon the executors power to convey lands; the deed of the executors is inefficacious and hence 'the legal title will be held to be in the residuary devisees under the will. By an amendment the complainant further sets forth that Mary D. Anderson knew that the will of the lessor did not confer a power of sale upon the executors^ and with this knowledge permitted the complainant’s grantor to expend large sums of money in making improvements upon the lands without giving notice that she would dispute the provisions of the option; that she recognized the rights of the complainant’s grantor to purchase the premises, and requested the executors to proceed with the settlement of the estate as speedily as possible, and to get from the complainant’s grantor the purchase price, so that the same might be in the hands of the executors and ready for distribution at any time; that she was cognizant of the payment by the complainant’s grantor of the purchase price and of the deliver}' to it' by the executors of the deed of conveyance, and that thereafter, and for a period of two years next before the commencement of the suit, she permitted the complainant and its grantor to make valuable repairs and improvements to the premises, and to purchase and acquire additional land adjoining to enlarge their business, and that, therefore, she is estopped from now asserting her title. The bill prays that Mary D. Anderson may be perpetually enjoined from further prosecuting her suit; that the covenant to convey the lands may be specifically performed, and that the devisees may be decreed to execute and deliver to the complainant a good and sufficient conveyance in the law. Seven grounds of demurrer are specified.

The first is that the option is not a contract, but is in the nature of a testamentary disposition, and not having been executed in the manner provided by our statute of wills is void. By the covenant the lessor bound herself, her heirs and assigns, to sell the land for a fixed price if called upon to do so by the lessee within a stated time. Such covenants, based upon the consideration of the terms of the lease, are constantly enforced in equity. Hawralty v. Warren, 18 N. J. Eq. 124. The agreement, in effect, was that the lessor would hold the land in reserve for the tenant during the stipulated period, and would convey it if and when the latter elected, and from this undertaking she could not recede without the other’s consent. In McCormick v. Stephany, 61 N. J. Eq. 208, it was held that such an agreement to convey is not a mere unaccepted proffer based upon no consideration, as is a letter offering to sell, nor is it a naked promise to sell at a price within a limited time. It is a completed purchase of a right to have a conveyance if the purchaser shall choose to buy upon the terms named. Myers v. Metzger, 61 N. J. Eq. 522; Connely v. Haggarty, 65 N. J. Eq. 596. While no estate in the land passes under the covenant, yet the purchaser acquires such an inchoate right therein as will, pending the option period, be protected in equity; and upon his complying with the terms of the contract his equitable estate thereby acquired will be clothed in legal form. The covenant relates to and runs with the land. 21 Am. & Eng. Encycl. L. 935. By the terms of the covenant under discussion it is made binding upon the heirs and assigns of the lessor, and under her will the legal title to the land is in the devisees and impressed with the lien of the covenant, which became enforceable against them upon the exercise of the option. From that time on they held the premises in trust for the complainant and its predecessor in title. The fact that the agreement to convey upon condition was to be executed posthumously is no barrier to its enforcement and does no violence to the statute of wills. It is settled that a person may agree to' make a particular disposition of his property by last will, and, upon breach, equity will enforce the promise. Such a contract was upheld on. demurrer in Johnson v. Hubbell, 10 N. J. Eq. 332, wherein Chancellor Williamson said:

“There can be no doubt but that a person may make a valid agreement binding himself legally to make a particular disposition of his property by last will and testament. The law permits a man to dispose of his own property at his pleasure, and no good reason can be assigned why he may not make a legal agreement to dispose of his property to a particular individual, or for a particular purpose, as well by will as by a conveyance to be made at some specified future period or upon the happening of some future event. It may be unwise for a man, in this way, to embarrass himself as to the final disposition of his property, but he is the disposer, by law, of his own fortune, and the sole and best judge as to the time and manner of disposing it. A court of equity will decree the specific performance of such an agreement upon the recognized principles by which it is governed in the exercise of this branch of its jurisdiction. In the case of Rivers v. The Executors of Rivers, 3 Des. Rep. 195, the court, in sustaining the propriety of a court of equity’s recognizing and enforcing such an agreement, very properly remarked that a man might renounce every power, benefit or right which the laws give him, and he will be bound by his agreement to do so, provided the agreement be entered into fairly, without surprise, imposition or fraud, and that it be reasonable and moral.”

See, also, Young v. Young, 45 N. J. Eq. 27; Clawson v. Brewer, 67 N. J. Eq. 201; Synge v. Synge (1894), 1 Q. B. 466; Meek’s Appeal, 97 Pa. St. 313. And a court of equity will intervene to prevent attempts on the part of the promisor to violate his promise during his lifetime. Van Duyne v. Vreeland, 12 N. J. Eq. 142; Davison v. Davison, 13 N. J. Eq. 246; Pflugar v. Pultz, 43 N. J. Eq. 440; Duvale v. Duvale, 54 N. J. Eq. 581. Now, if an agreement to devise by a will is legally binding and enforceable, it cannot be logically reasoned that a contract to convey after death is obnoxious to, and in contravention of, our statute of wills. The covenant is in no sense testamentary. It is contractual and irrevocable, and not benefactory and ambulatory, which are distinguishing features of wills.

The authorities which have been cited by the demurrant’s counsel in support of the text of the specification now under consideration, are cases in which donative purpose is the chief characteristic, and in which the element of contract is wholly absent or only incidentally involved. They are not in point. Heaston v. Krieg, 167 Ind. 101; In re Diez, 50 N. Y. 88; Hester v. Young, 2 Ga. 31; Blackstock v. Mitchell, 67 Ga. 768; Castor v. Jones, 86 Ind. 289; Reed v. Hazleton, 37 Kan. 321; Armstrong v. Armstrong, 51 Tenn. 357; Graves v. Sheldon, 2 Chip. D. (Vt.) 71; Remer v. Benedict, 81 N. J. Eq. 21; Cross v. Cross, 115 Eng. Reps. (Reprint) 1041.

The three following specifications raise the single point that the option was not properly exercised, because the purchase-money was paid to the executors instead of the devisees of the lessor. The option is silent as to whom the money was to be paid. The complainant’s counsel contends that the contract of Option worked a conversion of the realty into personalty upon acceptance, and that the payment to the executors was obviously proper and a fulfillment of the condition. In Lames v. Bonnet, 1 Cox Ch. 166, it was held that an option, exercised after the death of the optioner, converted the realty as of the time the optiop was given, and that it was to be regarded as personalty, to be dealt with by the executor. In that case the option could have been exercised in the lifetime of the vendor, and in this respect differs from the case in hand. Lawes v. Bennet was cited with approval in Keep v. Miller, 42 N. J. Eq. 100. It was disapproved in Rockland-Rockport Lime Co. v. Leary, 203 N. Y. 469, and Smith v. Loewenstein, 50 Ohio St. 346. In England it has been criticised, and, although followed and applied, it has not been extended beyond litigation between heirs and personal representatives. In re Adams and the Vestry of St. Mary Abbotts Kensington, 54 L. J. Ch. 87. I do not regard the rule of Lawes v. Bennet as unacceptable, and, if it were necessary to invoke it in order to sustain the complainant’s title, I would be inclined to apply the doctrine, because the chief reasons for its rejection, that it would lead to serious inconvenience and embarrassment in the settlement of estates and to complications concerning title to land, attendant upon a long-deferred conversion, are not present in this case. Here, the election was to take place within one year (the period for the settlement of decedents’ estates), and. I fail to see how any difficulty could be, or lias been, experienced. The doctrine of equitable conversion rests upon the presumed intention of the owner of the property, and in this case the intention may reasonably be inferred from the circumstances. The decision of the present point does not, however, depend upon the correctness of the doctrine of Lawes v. Bennet, because here one of the executors, to whom the purchase-money was tendered, and with whom the condition of the covenant w asperformed, is one of the two devisees. The declaration of acceptance of the option to either of the devisees was a sufficient performance of the condition. Harr. L. Tend. 115. The fact that this devisee was also an executor, and in that capacity executed a deed in mistaken compliance with the terms of idle option, does not militate against the propriety of the tender. Moreover, it appears by the bill that the militant defendant Mary D. Anderson requested her co-devisee, one of the executors, to obtain the money due on the option. If this be true, and it must be so regarded upon demurrer, then she appointed her co-devisee her agent, to receive the tender of the money.

Another specification is that the option was not assignable, and that the complainant’s grantor was not entitled to exercise it. This proposition is not tenable. The contract, with a lessee for an option to purchase, based upon the consideration of the lease, is property, and as such is transferable. Napier v. Darlington, 70 Pa. St. 64; Albert Brick, Lime and Cement Co. v. Nelson, 27 N. B. 276; Gustin v. School District, 94 Mich. 502; Robinson v. Perry, 21 Ga. 183; Van Horne v. Crain, 1 Paige 455; Hager v. Buck, 44 Vt. 285; McCormick v. Stephany, supra.

The next ground of demurrer is that there is a variance between the description of the property alleged to have been leased and upon which the option was to operate, and that for which the action in ejectment has been brought. All that need be said as to this is that the bill alleges that they are one and the same, which must be accepted as true. A copy of the lease is attached, and, upon a comparison of the description of the land therein with the amplified description thereof in the bill, it cannot be said that they are not one and the same. If the complainant is claiming more land than was contracted for, the issue must be raised by answer and established on final hearing.

The bill also sets up an estoppel, which is challenged by the demurrer. The. foregoing view renders it unnecessary to express an opinion upon the point. It- may, however, not be out of the way to suggest that it does not appear by tire bill that the request of the demurrant Mary D. Anderson, that the executors of the lessor accept the purchase price, came to the notice oí the complainant’s grantor and that it was relied and acted upon by it.

The demurrer will be overruled. The complainant is entitled to a decree, with costs.


source: Caselaw Access Project

author: Walker, Chancellor.

license: Public Domain

text:
    Laura Staats Rennie v. Elwood C. Rennie.
    [Decided September 29th, 1915.]
    1. A father cannot relieve himself from his continuing duty to support his infant children by entering into a separation agreement with his wife which provides for the payment by him to her of a stipulated sum per week for the support of herself and their children, which sum is inadequate for the support of both the wife'and the children; and this court will, in such a situation, compel the husband to pay a greater sum for the support of his wife and children than that stipulated in the agreement.
    2. When husband and wife enter into a separation agreement which provides for the payment by the husband to the wife of a stipulated sum per week for the support of herself and their infant children, and the wife brings a suit for divorce against her h.usband on the ground of adultery (which such an agreement cannot - operate to bar), she may elect to apply for alimony, rather than to enforce the agreement pendente lite; especially so if she desires an increased allowance because of children who are dependent upon her.
    3. While a separation agreement between husband and wife is not abrogated by the institution by -the wife of a suit for divorce, it is no impediment to awarding the wife temporary alimony in her suit.
    On application for alimony and counsel fee pendente lite.

      Mr. Charles F. McKinney, for the petitioner.
   Walker, Chancellor.

This is a suit for divorce on the ground of adultery, in which the petitioner has applied for alimony and counsel fee pendente Hie.

While, doubtless, the separation agreement between the parties annexed to the petition for alimonjq which provides for the payment by the husband to the wife of $5 per week for the support' of herself and their children, may be specifically performed, as in Aspinwall v. Aspinwall, 49 N. J. Eq. 302, nevertheless, as the sum is inadequate to support both the wife and the children, and as the court will not relieve the husband from his continuing duty to support his infants, an order will be made requiring him to pay $7 per week for the support of his wife and children. Bidd. N. J. Div. Pr. (2d ed.) 150 note w.

’In Roarke v. Roarke, 77 N. J. Eq. 181, it was held that an order of a police justice requiring weekly payments to be made for the support of a wife and child precluded an application by the wife to this court for maintenance while the adjudication of the justice was still in force and being obeyed, the implication being that if the order, although in force, was not being obeyed, alimony might be granted here.

In the case at bar, the defendant has failed to live np to his agreement to pay the weekly sum stipulated therein. The wife, therefore, I think, may elect to apply for alimony, rather than to enforce the agreement pendente lite, especially as she desires an increased allowance because of children who are dependent upon her. And while such an agreement cannot operate to bar a suit for divorce for adultery, the agreement itself is not abrogated by the institution of such a suit by the wife (Halstead v. Halstead, 74 N. J. Eq. 596); and it is no impediment to awarding the wife temporary alimony in her suit. Ibid. 598.

A counsel fee of $15 will be awarded, together with the costs of this application.


text:
    In the matter of the application of Mart K. Stewart to sell lands limited over.
    [Decided October 19th, 1915.]
    A party litigant can have only one solicitor of record, who may be an individual practitioner, or a firm of practitioners, who, as such, are regarded as a single entity.
    On petition signed and backed by two solicitors, who are not partners.
   Walker, Chancellor.

Lands limited over were sold in this matter, and the life tenant, being the administratrix of the person who died seized, applies by petition to have certain moneys tolled out of the proceeds of sale to reimburse her for debts of the decedent paid by her, making the remaindermen respondents.

The petition is signed by two solicitor’s in their individual names, and both their names are endorsed upon the back of the petition. They are not partners. This is irregular. It is a practice quite too often resorted to and must be stopped. No party litigant can have two solicitors or attorneys of record. The reason is that the adverse party shall not be put to an election upon which of the two to serve notices, or with whom of the two to treat concerning the litigation. He certainly cannot be required to serve duplicate notices, or seek an interview with another after having consulted one. Further, how is the clerk of the court to tell to which one of the solicitors’ accounts he is to charge the papers that are to be filed? He certainly has no right to make an election, nor has he any right to divide the charges between them. If a party could have two solicitors of record, why not three, four, five or six, or any other number. And what an embarrassment to the adverse party this would make.

It seems to have taken a statute to permit attorneys or solicitors, who are partners, to practice in their partnership names. The Practice act provides that “attorneys who are partners may, in their partnership name, appear and prosecute or defend any action in any court of this state.” Comp. Stat. p. 4053, § 1. Mr. Dickinson, in his Chancery Precedents, refers to this statute as authority for solicitors, who are partners, to appear and prosecute or defend. Dick. Ch. Prec. (rev. ed.) 281 note a.

The term “attorney of record” is well known. It is mentioned in 2 Cyc. 12, 867. The term “solicitor in chancery” is equally well known in England and in this state. The rules of the court of chancery make frequent reference to a solicitor of a party, but not to the solicitors of a party. The same may be said of the rules of the supreme court as to attorneys-at-law.

A party litigant may have a number of counsel to advise him, and to actually participate in a trial as his representatives, but he can have only one attorney or solicitor of record, who may be an individual practitioner, or a firm of practitioners, who, as such, are regarded as a single entity.

In Weeks on Attorneys (2d ed.), it is laid down, in section 220 (at p. 458) :

‘■One who appears only as counsel in a case is not authorized to sign a stipulation for a continuance, even if he be an attorney and counselor of the court in which the suit is pending. The conduct of a suit, except in a matter arising in the argument or hearing before the court, is exclusively under the control of the attorney of record in it. Whatever interest other counsel may have in the event of the suit, or the subject-matter of it, they are virtually strangers to the record.”

The petitioner in the matter at bar must elect as to which of the two solicitors who signed her petition, and whose names are endorsed upon its back, shall represent her as solicitor of record, and the name of the other must be struck out.


author: Walker, Chancellor

text:
    Henry W. Bull et al. v. International Power Company.
    [Argued and decided December 11th, 1914.]
    1. An application for the enforcement of a decree adjudging the defendant company insolvent, and appointing a receiver pending the appeal from such decree, should be granted, where it appears that opposition to, or rebellion against, the authority of this court has been attempted, in keeping from the receiver the possession of books and assets and documents of the company at a time when no appeal was pending from the decree.
    2. In such case the order will be for the issuing of the injunction and the permitting of the receiver to take into his possession the assets of the defendant company, he not being allowed, however, to vote on any of its certificates of stock, or to sell, encumber or otherwise dispose of any of its assets or property, to the end that they may be recovered and husbanded, but not destroyed or impaired, pending the appeal.

      Messrs. Vroom, Diclcinson & Bodine, for the complainants.

      Messrs. BleaMy & Btocicwell, for the defendant.
   Walker, Chancellor

(orally).

I am prepared to decide this application now. I think this is a case in which, with propriety, the application for the enforcement of the decree pending the appeal may and should be granted. The bill and answers and the affidavits on the final hearing on the application for adjudication of insolvency, and the appointment of a receiver, clearly showed that this defendant company had flouted a writ of mandamus issued out of the supreme court, commanding the company to exhibit its books to the complainants, or certain of them, and also an order of the supreme court afterwards made to bring those books into the state and leave them with the Corporation Trust Company, its registered agent in this state, so that they might be inspected by the complainants, or some of them.

It appears now fairly, I think, on these motion papers, that the same sort of opposition to, or rebellion against, the authority of this court has been attempted, in keeping from the receiver the possession of books and assets and documents of the company at a time when no appeal was pending from the court’s decree adjudging insolvency and appointing the receiver.

Now, this is not a manufacturing corporation; it is not a business companjr carrying on transactions, the interruption of which might work some detriment to the company; on the contrary, it is what is known as a holding company; it simply has possession of securities which, under the preliminary injunction still in force, it has not the power and has not the liberty to sell, encumber, or otherwise dispose of. An appeal has been taken from the decree. That appeal cannot be heard until March next, and in the usual course, doubtless would not be decided until next June. If the decree of this court should be affirmed, and in the meantime, the receiver’s hands should be tied, he would have no opportunity to pursue this company for the possession of its assets until some time next summer. I cannot see any impropriety whatever in putting him, so far as the court can put him in the possession of this company’s property, namely, these securities, pending this appeal; and if, on its determination the decree should be reversed, the receiver by a single act, and in a few hours, could restore to the company the possession of its property, which, in his possession in the meantime, would be safeguarded and not invaded. So that I think this is, as I have said, pre-eminently a case where with propriety a decree may be, and I think should be, in all the circumstances, enforced pending the appeal.

You may take an order for the issuance of the injunction and the permitting of the receiver to take into his possession the assets of the defendant company, he not being allowed, however, to vote on any of its certificates of stock, or to sell, encumber or otherwise dispose of, any of the assets or property of the defendant company, to the end that they may be recovered and husbanded, but not destroyed or impaired, pending the appeal. Authority for such an order is to be found in Ashby v. Yetter, 78 N. J. Eq. 173.


author: Emery, V. 0.

text:
    The United New Jersey Railroad and Canal Company et al. v. The Crucible Steel Company et al.
    [Decided August 5th, 1915.]
    1. Equity has jurisdiction to enforce by injunction the private rights of way arising to grantees from dedications of streets or roads, or arising from a dedication of a street or road by express covenant, and rights of way as between the parties to an agreement, arising as matters of contract or estoppel under contract.
    2. A covenant and agreement between owners “hereby dedicating” a strip sixty feet wide for a road might be considered as an actual grant of an easement over the land then owned by the respective parties, and not merely a covenant.
    3. The owners of land in a tract lying east of and detached from F. street, which ran north and south, but who then owned no land abutting on O. street from F. street east to the boundary line of the tract, entered into a written agreement, reciting that there were no public-streets on the several tracts owned by the parties, and that certain parties claimed rights of way over the property, and that it was for the interest of all parties that some recognized way to and through such property be established, and that all claim to private rights of way therein be extinguished, and providing that, in consideration of the premises, and of a consideration by each to each paid, they covenanted and agreed with the others, and with each of them, that a strip sixty feet wide, an extension of C. street easterly across the land of the parties, bo dedicated as a road, such strip beginning east of F. street at the end of C. street as laid out on a certain map, and running easterly between the north and south lines of C. street produced across lands of the parties to the easterly boundary of the tract designating C. street, which crossed F. street at right angles, as sixty feet wide, and by which the parties claiming rights of way released and surrendered them, and authorizing any party to fill and grade the road.—Held, on bill to establish the right of access to land over C. street from F. street and to compel the removal of obstructions, that the parties intended to establish some way "to” and “through” the lands, and that the agreement estopped all parties from denying that C. street, as an extension east of F. street to the boundary of the lands, was a way to the lands in which the strip was dedicated.
    4. As to a right of way as established by agreement over a part of a street extending to a dedicated strip in the lands of the parties, the right to grade such part of the street, if necessary for the use of the lands of the parties through which the strip was dedicated, would be the ordinary and recognized right of a dominant owner, who must keep the way in repair at his own expense, and maj' enter upon the servient tenement for that purpose.
    5. Defendants, who had obstructed the right of way coincident with a public street, established by a written covenant and agreement, as against the parties thereto, would have no right to continue the obstruction on the ground that they also obstructed the public street.
    6. It is actionable and a misfeasance for the grantor of an easement to subsequently willfully annul or avoid his own grant by obstructing its use.
    7. For obstruction of a way by others, but with the knowledge and assent of the servient owner, the dominant owner has a remedy against the servient owner.
    8. Complainants in an action to enjoin obstruction of a right of access to their lands over C. street, east of F. street, who, with defendant, had by covenant or'agreement dedicated a sixty-foot strip on their lands in a tract east of and detached from F. street, and, by contract or estoppel under contract, a way to their lands by an extension of C. street eastward, after the conveyance to a subsidiary of defendant of land abutting on C. street, from F. street east to the boundary line of the tract, conveyed all of their lands north of the sixty-foot strip or road, retaining the lands south of the strip, by deeds recognizing that, as between the parties to the agreement, C. street was a continuous street from F. street to the defendant’s land.—Held, that the defendant, by accepting the deed with its express references to C. street as a street from F. street, affirmed the agreement, and was estopped from denying that C. street, east of F. street, was a public street, and prevented from obstructing C. street where it crossed the easterly line of F. street.
    9. Relief by injunction against the obstruction of a public street cannot be granted, without proof that it has been accepted as a public street, with obligation to repair it for public passage.

      10. An owner, who has dedicated a street over his lands, is estopped from retracting his dedication; and the public right to appropriate the street dedicated, when required, can only be released by the legislature, or the municipality under its authority.
    11. Until there is an acceptance of a dedicated street by some municipal act or public usage, the public acquires no rights therein and is subject to no duties by reason of the dedication.
    12. Where there was no public usage of a part of a street over which vehicular travel was impracticable after another street crossing at right angles had been graded above it, a municipality’s adoption of such part on a map for taxing purposes was not such an acceptance as to impose on if the duty of repairing it for public travel; nor did its proceedings to vacate under a legislative act imply an acceptance.
    13. In an action by private owners to enjoin the obstruction of a public street, adopted as a recognized way in which the public right is fairly drawn in question, the public or the municipality must be a party.
    Heard on bill, amended bill, answers and cross-bill, and replications and proofs.
    On May 17th, 1901, four owners of land, in the town of Harrison (formerly called East Newark), entered into a written agreement for the purpose of dedicating as a road a strip of land sixty feet in width, running across their respective lands. The location of their lands and of this strip to be dedicated was, by recitals and covenants in the agreement, fixed with reference to one of the boundary lines (the most westerly) between two tracts then lying within the town, and called the Gilbert and Preston tracts, and by reference to two maps of these respective tracts, previously filed in county offices—the map of lots in the Gilbert tract, filed July 15th, 1852, in Hudson county, and of the Preston tract, filed July 14th, 1837, in Bergen county. The Gilbert tract is a very extensive one, located east and north of the bend of the Passaic river, opposite Newark, and extends into the town of Harrison, north and east, over seven.streets running north and south (numbered on the Gilbert map First street to Seventh street), and thirteen streets (or portions thereof) running east and west, and the Gilbert tract comprises over eighty blocks laid, off in lots. Fourth street on this map runs from the Passaic river north for thirteen blocks through the tract, and was at the time of the agreement, and is now, the avenue of travel connecting Newark, by .means of the Jackson street bridge, with the southern and central parts of Harrison. The. strip dedicated was described in the agreement as
    “a strip of land sixty feet in width, an extension of Cumberland street easterly across the said lands of the parties hereto, the strip of land so dedicated beginning east of Fourth street, at the end of Cumberland street as laid out on the Gilbert map, and in the aforesaid dividing line between the Preston tract and the Gilbert tract, and running thence easterly between the northerly and southerly lines of Cumberland street produced across lands of the parties hereto, to the middle of the ditch which forms the easterly boundary of the said land of the party of the fourth part (Draper). Cumberland street, of which the land above described is an extension, is shown on the map of the Gilbert tract referred to, and on the official map of the town of Harrison, made by Young & Bowie, surveyors. It is sixty feet in width and crosses Fourth street at right angles extending easterly to the said boundary line of the Gilbert and Preston tract; the northeast corner of Fourth and Cumberland streets is two thousand and twenty feet southerly from New Jersey Railroad avenue. The distance from Fourth street along the northerly line of Cumberland street to the boundary line of the Preston tract is shown differently on different maps.”
    On the Gilbert map Cumberland street extended east of the Gilbert tract to Seventh street, and partly over lands not owned by Gilbert, but which were included in the map of the Preston tract previously filed. On this Preston map, also, the streets as laid out extended west over the Gilbert tract lands, and each of these two maps showed a connected system of streets ovér the two adjoining tracts running north and south as well as east and west. Whether these streets, apparently connecting on both the maps, could .be located in fact as continuing connected streets does not appear, but the location of a connecting system of streets on both maps may be important.
    On the town of Harrison map, referred to in the agreement, Cumberland street extended east of Fourth street, but only to the boundary line of the Gilbert and Preston tracts; and the town official maps made later seem to have substantially adopted the line of the streets as laid down on the Gilbert map. The extensions of the streets from the Gilbert tra'ct over the Preston tract do not appear on the town maps of 1901, and no doubt for the reason that all the streets as laid out on this Preston map were vacated after the Gilbert map was filed and before the agreement of 1901. On August 14th, 1888, an ordinance was passed vacating Cumberland street between Fifth and Sixth streets, a portion of this street which was included in the Preston map, and on October 1st, 1895, an omnibus vacating ordinance was passed, by which “all the streets as laid out on the Preston map” were vacated. This latter ordinance had the effect of vacating Cumberland street east of Fourth street from the boundary, line between the Gilbert and Preston tracts to Fifth street and'from Sixth street eastward, so that the official map of the town referred to in the agreement for designating Cumberland street, which seems to have been made after these vacations of these portions of Cumberland street east of Fourth street, sbowrs Cumberland street running east from Fourth and terminating at the boundary line.
    At the time of the agreement, and by its terms, Cumberland street was accepted by the parties thereto as then terminating at the boundary line of the Gilbert and Preston tracts."
    Starting from the boundary line, the lands of the complainant, the party of the first part to the agreement, came first and extended both north and south of Cumberland street extended, a distance of about one thousand two hundred feet from the boundary line, to near Seventh street, where Cumberland street or its extension reached the lands of the Young executors, party of the third part, and running across them reached the Draper estate, party of the fourth part, which it crossed for a distance of about seven hundred feet. The Crucible Steel Company, party of the second part, were the owners of land included in the Gilbert tract, including a part thereof which, according to the Gilbert map, and, in fact, extended across a detached portion of Cumberland street, which portion as laid out on this map began about six hundred feet east of the boundary line and ran between Fifth and Sixth streets. This land of the Crucible Steel Company abutting on the detached portion of Cumberland street, on the Gilbert map, as well as. on Cumberland street as extended by the agreement, is a projection across the street into the lands of the complainants, which were then both east and west of it.

      The object and purpose of the parties in making this agreement further appears by the recitals in the paper itself and by its covenants and releases. The agreement first recited that there were no public streets or highways on the several tracts owned by the parties, and that the Crucible Steel Company and the executors of Henry Young (the predecessors in title of the defendant Harrison Land Company.) and Ruth Dana Draper, devisee of William H. Draper, claimed rights of way over property of the complainant embraced in the Preston tract; and then, secondly, recited that
    “it is for the interest of all the parties hereto that some recognized way to and through such property be established, and that all claims of parties herein to private rights of way over such properties, or any of them, be extinguished.”
    Then
    “in consideration of the premises, and of the sum of one dollar by each to each paid, the parties do hereby covenant and agree each with the others and with each of them, that a strip of land sixty feet in width, an extension of Cumberland street easterly across the lands of the parties hereto, be and the same is hereby appropriated as a road, the strip of land so dedicated beginning east of Fourth street at the end of Cumberland street as laid out on the Gilbert map and in the aforesaid dividing line between the Preston tract and the Gilbert tract, and running thence easterly,”
    &c., as above recited.
    After this covenant and agreement of dedication, the parties of the second, third and fourth parts,
    “for the consideration aforesaid, further released and surrendered to the party of the first part all rights of way over, the Preston tract, or any part of it, arising from any source whatever, which they had or claimed to have.” 1
    At the time of the execution of the agreement Cumberland street east of Fourth street was not graded or fit for use for vehicular traffic, nor does it appear that it had ever been so used previously, and from a point about four hundred feet east of Fourth street, the land was low meadow or marshy land lying some feet below the upland, and required filling. The complainant the United New Jersey railroad company then owned a large tract lying on both sides of the proposed extension east of the boundary line extending from beyond Middlesex street on the north to the river, and east as far as Seventh street. This tract had been purchased in connection with the development of the railroad and transportation business by itself or its lessees, the Pennsylvania Bailroad Company, and the portion lying south of Cumberland street extended was specially intended for the purpose of freight yards, and access to this tract and over Cumberland street from Fourth street is essential to the development and use of this lancTfor their purposes. Young’s executors (now the Harrison Land Company) owned from the complainant’s line between Sixth and Seventh streets, east to the Draper line, also a large tract of meadow land. Upon the execution of the agreement, and by reason of the releases therein contained, there was no access by any streets, highways or way to the lands of the Young estate, except by the dedicated road. These lands also require filling for development or use, and for this purpose access from Fourth street by Cumberland street is necessary.
    The defendant the Crucible Steel Company, as above stated, then owned land formerly part of the Gilbert tract, a small portion of which, between Fifth and Sixth streets on the map, was within the lines of the proposed extension of Cumberland street, and their execution of the agreement was therefore necessary for the purpose of dedicating the proposed road. As to the filling and grading of the extension, the agreement provides:
    “It is further agreed that any of the parties hereto may at any time, but without expense to the others, or to any of them, fill in and grade the said road, or any part of it, and this agreement shall bind the successors, heirs, executors and assigns of the respective parties.”
    It is objected that the agreement of dedication and release made by the executors of Young does not appear to be within their powers, under the will, and that as to the Harrison Land Company, their grantees, the agreement is .not effective, but there is no substance in this objection, for the reason that at the time of the agreement the executors of Young held the -absolute fee-simple to their portion of the lands in question, by purchase under foreclosure of a mortgage given to their' testator. The proceeds of sale of the lands and their control and disposition of the lands might be subject to question by any of the beneficiaries, but they held the legal title in fee-simple, and the executors, as well as the beneficiaries, subsequently united in a deed dated May 20th, 1904, conveying the lands to the HarrisonLand Company, who, as the grantees and assigns of the Young executors, are entitled to the benefit of the agreement. At the time of the execution of the agreement of 1901, none of the parties thereto owned any of the land abutting on Cumberland street from Fourth street east to the boundary line. Subsequent to the agreement, and by deed of February 4th, 1907, the defendant Hudson Railroad and Transportation Company acquired title from John E. Grimm to the lots in block 80 on the north side of Cumberland street, and also in block 83 on the south. This deed conveyed the lots by express reference to> the Gilbert map, but described only by block and. lot numbers, and did not expressly refer to streets. By another deed, dated January 15th, 1910, George L. Blake and wife conveyed to the Hudson Kailroad and .Transportation Company “that part of Cumberland street lying between the easterly side of Fourth street and the easterly boundary of the East Newark (the Gilbert) tract and blocks 80 and 83 on the Gilbert map,” and it was declared to be the intention of the parties to convey all right, title and interest, if .any, in and to Cumberland street.
    The Crucible Steel Company is engaged in the manufacture of steel on an extensive scale in Harrison, its works and grounds occupying a large part of the land between Fifth and Sixth streets on the Gilbert map, and from Cumberland street for six or seven blocks to the north. The Hudson Kailroad and Transportation Company was incorporated for the purpose of accommodating its business and for use in connection therewith, and it has no other business. It is claimed that the Crucible Steel Company controls this railroad company and is responsible for its acts, alleged to be in violation of the agreement.
    The Crucible Steel Company desiring, for the purposes of the extension of its works, to vacate streets abutting on its property on Fourth, Fifth and Sixth streets, including Oumberlmd street, applied to the common council for the vacation of these streets, offering to give $8,000 therefor, upon receiving a quit-claim deed on all the property named. Thereupon the common council gave notice of intention to vacate Cumberland street east of Fourth street two hundred and thirty-six seventy-two hundredths -feet measured along the centre line (the easterly boundary, according to the city map), subject, however, to the agreement of 1901. Application to enjoin such action of the council was made by the Harrison Land Company, but this was denied (82 N. tT. Hq. ^H), but, so far as appears, no further proceedings for vacation have been taken and the status of Cumberland street east of Fourth street to the boundary line, if it has been accepted as a public street, has not been legally changed.
    The complainants and the Harrison Land Company desiring now to fill up and improve their lands, have given licenses to do so to Booth & Flynn Company, Limited, a contracting company engaged in sewer construction, which has prepared and intends to use the lands for filling purposes in connection with their own work. For this use, access to the lands of the railroad company and of the land company over Cumberland street from Fourth street is necessary for both these parties. ^To the land company such access has been necessary since the agreement releasing its rights of way, and although at the time of the agreement the railroad company might, by devious and inconvenient ways, have had such access over its own lands included in the Preston tract, the necessary development of these lands since the agreement in the operation of its railroad has so far appropriated these to the purposes of transportation that there now remains to it no access except by Cumberland street. Access to the dedicated strip’ of road, the extension of Cumberland street, has been obstructed by a barrier erected not on the extension but across Cumberland street where it crosses Fourth street and on the easterly line of Fourth street. This barrier is a very formidable character and cuts off access to the entire width of Cumberland street. It was erected by the Crucible Steel Companj'', and upon the lands to which the Hudson transportation company has the record legal title. As between the two companies, the expense of the erection was subsequently charged to the Hudson company. The manager of the Crucible Steel Company plant is a director of the Hudson transportation company and personally has control of the property of the latter company, and was connected with placing the obstruction by the Crucible Steel Company, and on behalf of the steel company, applied for the vacation of Cumberland street. The stock of the transportation company does not appear to be actually owned by the steel company, but all the officers of the transportation company are also officers of the steel company, and it has its office at Pittsburgh in the office of the steel company. The object of the bill of the complainants, and cross-bill of the land company, is to establish their right of access to their land over Cumberland street from Fourth street and to compel the removal of the obstruction. The land company relies on the agreement and the actions of the parties under it as the basis for its right to reach Fourth street through- Cumberland street, but the complainants further rely on estoppels claimed to arise in their f.avor by subsequent deeds made by them to the Crucible Steel Company. After the conveyance to the Hudson Railroad and Transportation Company, in 1907, of the blocks north and south of Cumberland street, as shown on the Gilbert map, and -in 1910 of the land within the lines of Cumberland street, as shown on this map, the complainants con-' veyed to the defendant Crucible Steel Company two tracts adjoining each other, both located on the north side of the extension of Cumberland street. The first tract was conveyed by deed of June 22d, 1910, in which the lot was described as
    “beginning at a point at the intersection of the extended easterly line of Fifth street (sixty feet wide) with the northerly line of Cumberland street (sixty feet wide), as the said Cumberland street is extended by agreement dated May 17th, 1901, recorded,” &c.
    The third course of this description runs
    “to a/point in the northerly line of Cumberland street extended as aforesaid ; thence along the said northerly line of said street extended, and by other land of the said United New Jersey Railroad and Canal Company north eighty-two degrees twenty-four minutes west two hundred and ninety-nine twenty-nine hundreths feet to the place of beginning.”

      The second tract adjoined the first tract on the west and was conveyed by deed dated November 13th, 1911. The description of this tract referred to the beginning point as being on the easterly line of the Gilbert tract on the Gilbert map of July 15th, 1852,'filed in Hudson county, and as
    “being on the north line of Cumberland street as laid out on said map and mentioned in the agreement between the parties to the deed and others, dated May 17th, 1901, recorded, &e., and said plant being at the distance of two hundred and forty-five three-hundreths feet measured eastwardly along the northerly line of the said Cumberland street from its intersection with the easterly line of Fourth street.”
    The third course of this description ran to the westerly line of land conveyed to the Crucible Steel Company by deed of June 22d, 1910, and the fourth, along this land
    “to a point in the northerly line of a strip of land sixty feet wide dedicated and appropriated as a road by the above-recited agreement dated May 17th, 1901, and thence westwardly along the said northerly line north eighty-two degrees twenty-four minutes west three hundred and fourteen ninety-seven hundredths feet to the place of beginning.”
    These two deeds, taken together, conveyed to the Crucible Steel Company all of the lands of the complainants lying north of the -strip dedicated as a. road and left in the complainants as affected by the agreement the lands lying south of the strip dedicated and being the lands which complainants have licensed the contracting company to fill, and access to which over Cumberland-street east of Fourth street has been cut off by the defendant the Crucible Steel Company. .
    The Harrison Land Company, as a party to the agreement of Majr, 1901, was, by an amendment, made defendant to the bill. By its answer it admits substantially the complainants’ rights as alleged in their bill, and by cross-bill prays for the relief of removing the obstructions to' Cumberland street placed there by the other defendants, the Crucible Steel Company and the Hudson company, which it is alleged to own and control. These defendants, in their answer to the bill and cross-bill, deny generally that complainants or the Harrison Land Company by reason of the agreement have access from Fourth street over Cumberland street, and also that Cumberland street east of Fourth is a public street, or has ever been accepted as such, and they also insist that the remedy, if any, is at law.

      Mr. James B. Yredenburgh, for the complainants (Messrs. Yredenburgh, Wall & Carey, solicitors).

      Mr. Edward A. Day, for the defendant Harrison Land Company. {Messrs. Edward A. & William T. Day, solicitors).

      Mr. George 11. Peirce, for the defendant Crucible Steel Company {Messrs. Peirce & Hoover, solicitors).

      Mr. J. Henry Harrison, for the defendant Booth & Flynn Company, Ltd.
   Emery, V. 0.

(after statement).

The substantial question of law -to be decided is the right of the complainants and of the defendant land company as against the defendant Crucible company under the agreement of 1901, to access over that portion of Cumberland street east of Fourth street, as laid down on the Gilbert map, to the “strip of land sixty feet in width, an extension of Cumberland street;” dedicated as a road across their respective lands. An objection was made in the answer of the steel company and the Hudson Railroad and Transportation Company, and repeated at the hearing, to the jurisdiction of this court to determine this disputed right, as being purely a legal right to be settled at law, and for the violation of which the remedy was legal and not equitable. The equitable jurisdiction to enforce by injunction the private rights of way arising to grantees from dedications of streets or roads is settled. Lennig v. Ocean City Association (Court of Errors and Appeals, 1886), 41 N. J. Eq. 606; Herold v. Columbia Investment and Real Estate Co. (Court of Errors and Appeals, 1907), 72 N. J. Eq. 857, 861. Injunctions welre granted in these cases on covenants for rights of passage in the streets, implied by reason of conveyances referring to the streets designated on the map. A right arising from a dedication of a street or road by express covenant is entitled to a similar equitable protection. And there is here an additional ground for equitable jurisdiction. So far as relates to the dedicated strip of sixty feet, the covenant and agreement “hereby dedicating” it as a road may be considered as an actual grant of an easement over the lands then owned by the respective parties, and not merely a covenant, if such construction is necessary to carry out the intention of the parties. Godd. Easem. (Bennett’s ed.) 108; Trustees v. Lynch, 70 N. Y. 440, 448; Brewer v. Marshall, 18 N. J. Eq. 337, 345; S. C. on appeal, 19 N. J. Eq. 537, approving opinion of chancellor on this point (at p. 542) 10 Am. & Eng. Encycl. L. (2d ed.) 413. But so far as relates to any rights on Cumberland street itself from Fourth street for access to the extension, these rights cannot be in the nature of actual grants of easements over Cumberland street, because neither the steel company nor any other of the parties owned lands abutting on that portion of Cumberland street upon which the easement could be actually imposed by grant. Any rights over that portion of Cumberland street for access to the extension must, therefore, as between the parties to the agreement, arise as matters' purely of contract or estoppel under contract, and not of estate granted, and specific performance by injunction of such contract rights, if any, is the only adequate remedy. The obstruction of Cumberland street east of Fourth so plainly destroys or affects the existence or value of the road dedicated over the extension, that if such obstruction is a violation of contract rights arising under the agreement, equitable relief by injunction is the appropriate remedy.

As. to this portion of Cumberland street itself, the agreement by its recitals and covenants shows that the parties to the agreement intended that this portion should be considered as a way given by a public street for access to the dedicated strip. The first recital refers to the non-existence of public streets or highways on their several tracts, and the claim by all of the other parties of rights of way over the complainants’ lands embraced in the Preston tract. These private rights of way were claimed as arising partly by reason of the dedications of streets on the Preston tract, by the maps and otherwise, and as existing after the vacation of these streets. As appears by the record in the suit brought by the Young estate against the Pennsylvania Railroad Company, these claims of right of way relate to several streets laid out in the Preston tract other than Cumberland street. The second recital was most important as declaring the scope and purpose of the whole agreement, and, in my judgment, reached' to the very point now in question. This recited that it was for the interest of all parties “that some recognized way to and through such properties be established, and that all claims of the parties to private ways over such properties, or any of them, be extinguished.” As to the purpose and scope of the dedication, this recital shows an intention to establish “some recognized way to," as well as through their properties, and, in view of the actual releases of private ways subsequently made in the agreement itself, carrying out that purpose of the recital, the other declared purpose, viz., the establishment of a recognized way, must be considered either as a contract of the parties, that as between them a recognized wajr to the properties was established by the agreement, or as an estoppel against thereafter denying that the way to the properties established by the agreement was as between them a recognized way. If the recital has the effect of such estoppel arising out of the contract, the continued existence of the recognized way to the properties arising from estoppel may be protected, although none of the parties against whom the estoppel arises at the time of the agreement owned the lands to which the estoppel applies. In Ocean City Hotel, &c., Co. v. Sooy (Court of Errors and Appeals, 1909), 77 N. J. Law 527, a conveyance delineating a street and referring to it as a boundary, while inoperative as a dedication because the grantor did not own the street, was operative between the parties as an estoppel to deny the existence of the street.

The covenant of dedication following this recital not only did not limit or restrict this declaration of its purpose, but confirmed, and, I think, adopted it, and by the following provisions : Hirst. The dedication was expressed to be “in consideration of the premises,” thereby including and reaffirming the general purpose of the previous recital, as establislmrg a way to the_ properties. Second. The express and formal dedication itself in the agreement is, “a strip of land sixty feet in width, cm extension of Cumberland street, across the lands of the parties be and the same is hereby dedicated and appropriated as a road.”

There is in the dedication itself no further express indication of its purpose, but the purposes declared in the recital, in consideration of which the dedication was made, must be considered as operative, and as defining between the parties a special purpose of the dedication, viz., to establish a recognized way to the premises, and the dedication itself “as an extension of Cumberland stréet,” was an express reference to a recognized way, and the only recognized way which led to the premises through which the dedicated strip ran.

I consider that by the dedicating clause, read in connection, as it must be, with the recital, which was the declaration of its purpose, the dedication as made should be taken, so- far as the parties are concerned, as if made in this form, viz.:

“A strip of land sixty feet in width, an extension of Cumberland street easterly across the said lands of the parties hereto, be and the same is hereby dedicated and appropriated as a road (to the end), that some recognized way to and through such properties may be established.” '

The form or place in this agreement in which its purpose appears is immaterial, and where the purpose, as here, plainly appears by recital, the terms of the dedication, whether it be considered a grant of an easement over the land they owned or as a contract, must be construed as affected by it. The references in the agreement to Cumberland street in the description of the strip following the dedication, further confirm this construction of the declaration, and show that for the purposes of the agreement and as between the parties, Cumberland street east of Fourth to the boundary line of the Gilbert and Preston tracts is to be the recognized way to the properties. The strip dedicated begins east of Fourth street at the end of Cumberland street as laid out on the Gilbert map; thence it runs “easterly between the northerly and southerly lines of Cumberland street produced across lands of the parties.” Then, as specially indicating the status of Cumberland street and fixing its lines east of Fourth street for the purposes of the agreement, it is said that “Cumberland street, of ■which the land above described (the sixty-foot strip) is an extension, is shown on the Gilbert map and the official town of Harrison ma.p.” * * * It is sixty feet in width and crosses Fourth street at right angles “extending easterly to the boundary line of the Gilbert and Preston tracts.” The definite location of Fourth and Cumberland streets, for the purposes of this agreement, is fixed by reference to the distance of their northeast corner two thousand and twenty feet from a fixed monument, New Jersey Kailroad avenue, on the north. These descriptions and locations show that the parties for the purpose of establishing some recognized way to and through their lands adopted a single recognized way. The recognition of this portion of Cumberland street in fixed location and lines as an existing public street as far as the boundary, and the explicit extension of the street by dedication over their lands, established for every one of the parties this “single recognized way to and through” their properties, which it was their object to establish. And it is only by such recognition of Cumberland street, as a way in connection with the dedication, that such way could be established by the dedication. At the time of the execution of the agreement, Cumberland street east of Fourth, as laid down on either of these maps, was not graded, nor could it, in its then condition, be used at all for vehicular travel. But the right of wajr over this portion of Cumberland street, if it exist by estoppel, or otherwise, under the agreement, must, as it now seems to me, for the purposes of its exercise and enjoyment, and so far as these parties are concerned, be considered as if it stood on the legal basis of easement granted on their own lands in the dedicated strip. On this strip the agreement expressly provided for filling and grading, but this did not extend to Cumberland street. As to the way established by the agreement over this portion of this street, the right to grade it, if necessary for the use of the lands of the parties through which the road was dedicated, the right to enter, repair and grade, as between the parties, must be the ordinary and recognized right of a dominant owner. He must keep the way in repair at his own expense and may enter on the servient tenement for that purpose. Godd. Easem. (Bennett’s ed.) 346. Whether this portion of the street has been accepted by the town as a public street admits of question. The town official map affords some evidence of acceptance. Vreeland v. Torrey (Chancellor Runyon, 1881), 34 N. J. Eq. 312, 313; but in view of the act of 1888 (P. L. 1888 p. 178; 4 Comp. Stat. p. 4604), authorizing the vacation of dedicated streets, whether accepted or not, the subsequent vacation or proceedings to this part of Cumberland street do not of themselves imply acceptance. No other acts of the town are shown as bearing on the question of acceptance of this portion as a public street, and apparently the town authorities, by allowing the continuance of the barrier, are acting as if this part of the street were not public. And certainly the defendants, who have obstructed the way established by the agreement, can, as against the parties, have no right to continue them, merely on the ground that in doing so they also obstruct the public street which was the way established.

This agreement, in my judgment, estops all the parties dedicating the road over their lands as an extension of Cumberland street with the intention of establishing a recognized way to their lands from Fourth street, from denying that Cumberland street east of Fourth street to the boundary line of the tracts, and for the whole width thereof, is a way to the properties over which the strip was dedicated as an extension.

Should this construction of the agreement, giving rights of way by estoppel over Cumberland street exist to the boundary, not be correct, and should it be considered that the agreement of dedication gave rights only over the dedicated strip, it would still seem that the complainants and the land company are not barred from equitable relief. For it is actionable and a misfeasance for the grantor of an easement to subsequently willfully annul or avoid his own grant by obstructing its use. Godd. Easem. (Bennett’s ed.) 443. The obstruction in this case practically destroys and annuls the dedication of the strip itself. And for obstructions of a way made by others, but with the knowledge and assent of the servient owner, the dominant owner has a remedy against the servient owner. Ibid., citing Dennis v. Sipperly, 17 Hun 69.

The complainants, in my judgment, have additional rights by estoppel against the steel company, by reason of the subsequent deeds to that company. These deeds (two in number) together conveyed all of the complainants’ lands over' which the sixty-foot strip was dedicated, lying between the easterly boundary of the Gilbert and Preston tracts, and the steel company’s own lands lying within the dedicated road, and abutting about one thousand two hundred feet on the northerly side of the extension. These lands of the steel company were part of the Gilbert tract, and on that map appeared as included in a .portion of Cumberland street detached from the other portions of that street. But, although thus detached, the grantees of this detached portion, and of the lands abutting thereon on the north, were as grantees of the Gilbert tract, at the time of the agreement, entitled to the benefit of Cumberland street, as laid out on the Gilbert map, including especially the portion thereof east of Fourth, and to their easement over this portion by reason of this dedication by this map. By the two conveyances to the steel company, it became the owner of the lands connecting the detached portions of Cumberland street as dedicated on the map, and thus, as owner of the lands in the dedicated strip, and which were covered by Cumberland street on the Gilbert map, became entitled, under the Gilbert title and. the agreement of 1901, to private rights of passage from its lands to Fourth street, and it has these rights of passage to Fourth street superior to the Hudson-transportation company’s title, which was subject to all the dedications by the Gilbert' map. By these deeds this valuable private right of continuous passage from its lands abutting on the extension of Cumberland street to Fourth street became fixed, and this circumstance is entitled to weight in considering the effect of these subsequent deeds. The first deed, dated June 22d, 1910, conveying about three hundred feet on the northerly line of the extension, was described as beginning at a point in “the northerly line of Cumberland street (sixty feet wide) as the said Cumberland street is extended by the agreement of May 17th, 1901;” the third course runs “to a point in the northerly line of Cumberland street extended as aforesaid; thence along the said northerly line of said street extended to the beginning.” The second tract, conveyed November 13th, 1911, is described as beginning at a point

“in the north line of Cumberland street as laid out on said (Gilbert) map and mentioned in the agreement of May 17th, 1901, which point was two hundred and forty-five three-hundredths feet measured eastwardly along the northerly line of the said Cumberland street from its intersection with the easterly line of Fourth street.”

These deeds plainly proceed on the basis that, as'between the parties thereto, and for the purposes thereof, Cumberland street is a continuous street from Fourth street to the lands of the steel company included in the agreement of 1901. The grantors manifestly would be estopped from denying that the grantees had the right of way from the premises conveyed over this portion of Cumberland street, and the grantees by the acceptance of the deed with its express references to Cumberland street as a street from Fourth street and over .the lands conveyed, affirmed the agreement of 1901, as intended to make of Cumberland street east from Fourth a public street to be extended. They are also, in my judgment, estopped from denying this effect of the deed and its acceptance, and that Cumberland street east of Fourth street is a public street.

In the absence of a direct covenant that Cumberland street east of Fourth was a public street and should be continued as such, the reference to it, in the agreement or in the deeds, by the recitals or description, as a public street, intended for the purposes of the agreement or deeds to be part of a perpetual continuous recognized way to their lands across which tire strip was dedicated, such mutual covenant by implication cannot be held to have arisen between the parties, making each liable to the other for damages as on a covenant, either on the non-existence or the subsequent vacation of this portion of the street. These references, by -recitals or description, should not be held to operate further tiran as estoppels arising under the agreement and deeds as to all the parties, and those claiming under them, to deny the existence of this portion as a street or way to the dedicated strip, • or in anjr manner interfering to obstruct the other parties to the agreement in the use of it for the purposes of the agreement. This distinction between estoppel and implied covenant is taken by some courts, even where the lands as to which the estoppel is enforced belong to the grantor. 8 Am. & Eng. Encycl. L. (2d ed.) 63; Howe v. Alger (Mass., 1862), 4 Allen 206, 211. And where the lands are not owned by the grantor or covenantor, the right to relief must clearly, I think, be based on estoppel. This estoppel will • in the present case prevent the steel company from doing or alleging anything contrary to the tenor and effect of the agreement and deeds in this respect, and from doing anything, either itself or through others over whose action in reference thereto it has control, to obstruct the enjoyment of the street or way for the purposes of the agreement and deeds.

The bill is filed to protect and enforce complainants’ rights arising and claimed under the agreement and deeds, but at the hearing they also claimed a right to a removal of the obstruction, by mandatory injunction, upon the ground that it was the obstruction of a public way from which they suffered special loss or damage, and that although the common nuisance was indictable they were, by reason of this special damage, entitled to remedy by action, including relief by injunction. The New Jersey decisions relied on to support the claim are cases in the law courts in which such actions for special damages were sustained. In Stevens v. Paterson and Newark Railroad Co. (Court of Errors and Appeals, 1870), 34 N. J. Law 532, 553, the access of a riparian owner to a navigable river was obstructed by the construction of a railroad on the shore belonging to the state and without any authority from tire state. In Ryerson v. Morris Canal and Banking Co. (Supreme Court, 1903), 69 N. J. Law 505, the owner of three different farms located at considerable distances from each other, on the same highway, was held, on the facts stated in the declaration, to have sustained a special and peculiar damage in passing from one farm to the others, by the non-repair of a bridge on the highway, and to be entitled to an action for the non-repair if defendants were bound to repair. Mr. Justice Pitney, delivering the opinion of the court, says (at p. 505) that “in order to maintain the action plaintiff must have sustained some special damage peculiar to himself, beyond that suffered by the rest of the public entitled to use the tvay, and that it is sometimes said that the plaintiff’s injury should be, not only greater in amount, but different in kind from that suffered by citizens in general.” In decisions previous to this latter case, the right to relief by injunction for removal of nuisances to highways Avas denied to complainants who were abutting owners and Avhose access to the highway was cut off, upon the ground that the right to the highway Avhich complainant enjoyed was only a right as one of the public, and that his injury Avas not different in character from that which every other citizen sustained. H. B. Anthony Shoe Co. v. West Jersey Railroad Co. (Mr. Justice Van Syckel, Court of Errors and Appeals, 1898), 57 N. J. Eq. 607, 617, and Mr. Justice Garrison (concurring) says "(at p. 61:9) that it is not seen how the public right can be draAvn in question in a suit to which no one representing the public or eA'en the municipality is a party. In Young v. Pennsylvania Railroad Co. (Supreme Court, 1905), 72 N. J. Law 94, this decision of the appellate court Avas held to establish the principle (suggested by Mr. Justice Pitney in the earlier Ryerson Case, supra, as the ground of some decisions) that the injury must be different in character from that of the public, in order to be redressed by a private action for damages, and such right was denied to the plaintiff where a street dedicated by the defendant had been obstructed by them. In vieAv of the later decisions, both in the court of errors and appeals and the supreme court, the relief by injunction against obstruction of a public street cannot be granted in this ease for two reasons— first, because the proof that Cumberland street east of .Fourth has been accepted by the municipality as a public street which it is obliged to repair for public passage is not sufficient. Where an oAvner has dedicated a street over his lands, he is estopped from retracting his dedication, and the public right at any time to appropriate’the street dedicated, Avhen required, can only be released by the legislature, or the municipality under its authority. Hoboken Land and Improvement Co. (Court of Errors and Appeals, 1873), 36 N. J. Law 540, 549; McAndrews, &c., Co. v. Camden (Court of Errors and Appeals, 1910), 78 N. J. Eq. 244, 248. But until there is an acceptance of the street by some municipal act, or by public usage, the public acquire no rights therein, and is subject to no duties by reason of the dedieátion. Ibid. and Atlantic and Suburban Railway Co. v. State Board (Supreme Court, 1910), 80 N. J. Law 83. No public usage of this portion of Cumberland street has been shown, nor was vehicular travel ever practicable since Fourth street was graded above it. Tinder these circumstances, the adoption of this portion on the map for taxing or city purposes does not seem such an acceptance as to impose on it the duty of repair for public travel. Proceedings to vacate under the act of 1888 do not imply acceptance. In the second place, I am inclined to concur in the view of Messrs. Justices Garrison, Dixon and Collins, in the Anthony Shoe Co. Case, supra, 57 N. J. Eq. 619, that where public right is fairly drawn in question, and is to be decided, the public or the municipality must be a party to the proceeding. On an indictment or information by the attorney-general the public is the formal party asserting the right and the status of the street as a public street is settled finally against all parties. Whether if the town of Harrison had been made party defendant to this bill as uniting in or allowing the obstruction of a public street, the obstruction of a public street if denied could be tried and relief by injunction granted, is not a matter for decision.

The case is decided solely on the rights of complainants and the land company to injunction under the agreements and deeds, and the form of injunction will be settled.


author: Stevens, V. C.

text:
    Leonard Melick v. Liberty Trust Company et al.
    [Decided August 14th, 1915.]
    1. Complainant loaned money on bond and mortgage, and his attorney, authorized to receive the interest and principal, to endorse receipt of money on the bond, and to cancel the mortgage of record, returned to complainant the bond and a certified copy of the mortgage, and forged a fao simile of the bond and a transfer of the bond and mortgage to one who transferred the forged bond and the original mortgage to the defendant, an innocent purchaser, for their face value.-—Held, that the complainant had the better title.
    2. When a mortgagee leaves the bond and mortgage with his attorney, who forges a fao simile of the bond, and transfers it and the original mortgage to a dona fide purchaser, and returns the original bond and a certified copy of the mortgage to the mortgagee, the latter is not estopped to foreclose the mortgage.

      Mr. Frank Benjamin, for the complainant.

      Mr. Archibald F. Sling erlcrnd, for the defendant Liberty Trust Company.
   Stevens, V. C.

On October 28th, 1910, George F. Perry and his wife executed a bond and mortgage to complainant to secure the payment of $4,000. The money was lent through the instrumentality of one Roland D. Crocker, an attorney. The mortgagor paid the semiannual interest to Crocker, who transmitted it to complainant. In March, 1914, Crocker wrote to complainant tejling him that the mortgagor wanted to pay off the mortgage and he asked complainant to bring him the papers. This complainant did, early in April. About the 1st of May, Mrs. Melick called at Crocker s office and received the interest. Crocker told her that Mr. Perry “hadn’t showed up yet but would in a few days.” On May 17th she went to his office but did not find him. On May 25th she went again and Crocker then gave her the bond, telling her that he couldn’t find the mortgage but would send it. On May 29th he sent a certified copy. He said in the letter accompanying it that the original mortgage had been mailed but must have been sent to the wrong address.

In point of fact what Crocker did was this: He forged a fac simile of the bond and a transfer of the bond and mortgage to one J. II. Hurlbut. Hurlbut had first borrowed money from the Liberty Trust Company on the strength of this transfer and had then, paying off the loan, transferred the forged bond and the original mortgage to tire company for their face value. The company was an innocent purchaser for value. The question is, which shall suffer from Crocker’s crime, the complainant or the trust company ?

The situation is this: Complainant holds the original bond and the certified copy of the mortgage. The Liberty Trust Company holds the forged bond, the original mortgage and the forged transfer. It seems to me very plain that the complainant has the better title. In the first place, he has never parted with the ownership or possession of the primary security, the bond. Crocker’s possession during the few weeks he had the actual custody of it was complainant’s possession. In the second place, he never -transferred the mortgage or authorized anyone else to transfer it. The forged instrument did not transfer it, and, consequently, he still remains its legal owner. The trust company has only a forged bond, which binds nobody, and the manual possession of the mortgage without title; for the forged transfer confers none.

Counsel for the trust company contends, however, that complainant’s conduct in entrusting Crocker with the custody of the papers estops him from setting up his title.

The utmost limit of the authority conferred by complainant upon Crocker, inferable from the handing of the papers and from prior acts, was to receive the principal from the mortgagor; to endorse an acknowledgment of the receipt of the money on the bond and to authorize the register to cancel the mortgage of record. Assuming, without deciding, that under the circumstances disclosed by tbe evidence such was the authority, it did not authorize Crocker to assign the bond and mortgage, much less to forge an assignment of them. An agency to do what he did is therefore out of the question.

On what ground then is there an estoppel? If I hand my mortgages or title deeds to an attorney that he may search the title, or that he may sue on the covenants, or if I hand my securities to my clerk, that he may deposit them in my box, if he forges a transfer or assignment and delivers all the papers, am I estopped from claiming my property? The question seems to answer itself. “Although,” says Mr. Pomeroy, in his work on Equity Jurisprudence, § 805,

“fraud is not an essential element of the original conduct working’ the estoppel, it may with perfect .propriety be said that it would be fraudulent for the party to repudiate his conduct and to assert a right or claim in contravention thereof.”

Obviously, it is not fraudulent for the complainant to claim to be the owner of the bond which he now has and of which he has never lost possession. Being its owner, he may sue on it; and he may, without fraud, lay claim to the collateral which secures it, and which he has never, by word or act, surrendered. If so, it cannot be fraudulent to insist, as he does, that the mortgage shall be handed over to him. He did not, either designedly or negligently, clothe Crocker with the apparent title and power of disposition (Morris v. Joyce, 63 N. J. Eq. 554), unless a title and power of disposition are to be inferred from the bare act of entrusting one’s property to someone else, for a specified purpose—an inference plainly absurd.

I think complainant is'entitled to a decree.


author: Stevenson, V. C.

text:
    John T. Harrop et al. v. Louis E. Cole et al.
    [Decided October 3d, 1914.]
    1. An agent, employed to negotiate for his principal the purchase of land, who violated the principal’s confidence, and purchased the land with his own money, and took a deed thereof to himself, became a constructive trustee for the principal’s benefit, upon payment of the price.
    2. ' In such case, the principal might establish a constructive trust, by showing a verbal agency contract, or a written contract, or no contract at all, since the trust arises from the agent’s representative status and the confidence necessarily reposed in him by the principal.
    3. An answer, which does not expressly set up the statute of frauds, but denies that defendant made the contract alleged in the bill, is a sufficient pleading to give the defendant the benefit of the statute as a defence, since the denial puts the complainant to the proof of a legal contract, or of a .contract by legal instruments of evidence. •
    On final hearing on bill, answer and proofs taken in open court.

      Mr. William W. Watson, for the complainants.

      Mr. Cornelius Doremus, for the defendants.
   Stevenson, V. C.

As to the facts, the weight of evidence and the probabilities are on the'side of the complainants.' The defendant’s story-rests upon his uncorroborated testimony, and in many respects his story and his manner of narrating it upon the stand discredit his cause.

I find that the complainants verbally employed the defendant to negotiate on their behalf the purchase of a parcel of land in Passaic county. The defendant thus charged with this business, in which he had the confidence of his employers, violated his .duty, purchased the land with his own money and took a deed thereof to himself.

With the view of the evidence which I entertain, the case resolves itself into a well-defined question of law about which there has been a remarkable diversity of opinion expressed in decisions of the courts and in the text-books.

Mr. Perry seems to 'accept as established law that

“parol proof cannot be received to establish a resulting trust in lands purchased by an agent, and paid for by his own funds, no money of the principal being used for the payment.” 1 Perry Trusts § 135.

Mr. Browne, in his authoritative work on the statute of frauds, appears to favor the contrary view. Browne Fraund. § 96.

In volume 15 of the Am. & Eng. Encycl. L. (2d ed.) (at p. 1187), cases on both sides of this question are cited, and it is stated that “it seems to be held by the weight of authority that a court of equity cannot grant relief” by holding the agent “a constructive trustee.”

We have the supreme court of the United States and the English courts, and the courts of several of the states, firmly supporting the rule that the derelict agent can be decreed in equity to hold in trust for his betrayed and defrauded principal. Other courts of various states of high authority have held otherwise.

It is important to note that the whole basis of objection to the granting of relief to the deceived principal rests upon the statute of frauds. The argument, as stated by Mr. Perry, is that

“the relation of principal and agent depends upon the agreement existing between them, and the trust in such a case must arise from the agreement and not from the transaction, and where a trust arises from an agreement, it is "within the statute of frauds and must be in writing.”

I think that this view is entirely erroneous and the trend of the decisions is toward its rejection. A trust which is more correctly classifiable as a constructive trust (1 Pom. Eq. § 155; 1 Perry Trusts § 166) than as a resulting trust {1 Perry Trusts § 185), is established by proof of the betrayal of confidence, of the violation of duties arising out of a fiduciary relation. The fiducial’}’' relation may be established in a large number of ways: It is a mere accident that in this particular case, and in large numbers of others, the fiduciary relation grows out of a verbal promise. As the authorities abundantly show, equity will not tolerate the betrayal of confidence and it makes no difference how this confidence has been obtained.

When one man assumes to act as agent for another, as the representative of another, he necessarily establishes a fiduciary relation between himself and the other person who stands' as his principal. This is in the very nature of the transaction because the agent undertakes to act not .for his own benefit but for the benefit of his principal, and his principal stays out of'his own business and confides in the agent to attend to this business for him. It is the assumption by the agent of his representative status and the confidence necessarily reposed in him by the principal which create the agent’s peculiar liabilities and cast special limitations and obligations upon.him. The agency may be established by a written contract or a verbal contract, or no contract whatever, the assumption and confidence involving a purely gratuitous service for which the agent is to receive no compensation in any form.

Tn a large class of cases analogous to the one in hand, equity intervenes where a fiduciary relation is found to exist between contracting parties, and sets aside or modifies the most solemn written contracts, and for that purpose admits parol evidence. 2 Pom. Eq. § 956; 1 Perry Trusts § 210.

In the case of Lillis v. P. Bailantine & Sons, decided by me about three years ago, but not reported, I held that “an obligation and a disqualifying fiduciary relation may be created contemporaneously, and the latter may infect the former precisely as if the fiduciary relation had antedated the legal obligation,” citing the remarks of Mr. Justice Pitney in his opinion for the court of errors and appeals in Lynde v. Lynde, 64 N. J. Eq. 756.

It is not worth while, however, in my opinion, for the purposes of this case to spend much time in the examination of the reasoning of judges and text-writers in regard to this much controverted question, because I think the question is settled in New Jersej'' by the decision of the court of errors and appeals in the case of Rogers v. Genung (1909), 76 N. J. Eq. 306. In this case the court of errors and appeals reviewed the decree advised by Vice-Chancellor Stevens, whose opinion is published in 75 N. J. Eq. 13. The vice-chancellor held in that case that the alleged agent, Genung, who the complainant claimed had undertaken by an oral contract to buy the land in question for him, was already the agent of the owner of the farm and bound as such to get the highest possible price, and was therefore incapacitated to become the agent of or to enter into any confidential relation with a possible purchaser to whose attention he brought the farm, and to whom he offered it for sale. The court of errors and appeals took a different view of the facts, and, notwithstanding that Genung was a real estate agent on whose books the farm in question was listed, and who “offered” it to the complainant for sale, they found that there was nothing in the case upon which to base such an agency on the part of Genung for the owner, Conkling.

As to the law laid down, Vice-Chancellor Stevens, recognizing the conflict of authorities, doubted whether he would be “justified in following the more recent English rule, even if it were considered to be the better,” in view of the decisions of this court in Wallace v. Brown (Chancellor Williamson, 1855), 10 N. J. Eq. 308, and several more recent cases which he cites.

■The court of errors and appeals, however, not being bound by prior decisions of the court of chancery, and having found that Genung, the purchaser, was not disqualified from being employed as agent by the complainant, in unmistakable terms adopted the modern English rule overruling without citing all prior conflicting cases and established a constructive trust in favor of the complainant.

There is a question as to the sufficiency of the defendant’s answer to invoke on his behalf the defence of the statute of frauds, and, as we have seen, it is that statute alone which sustains the particular defence we have in view.

It is well settled that if an answer, which does not expressly set up the statute of frauds, denies that the defendant made the contract alleged in the bill, it is a sufficient pleading to give the defendant the benefit of the statute as a defence. The denial of the contract puts the complainant to the proof of a legal contract or of a contract by legal instruments of evidence. The New Jersey cases on this subject may be found cited in Lozier v. Hill, 68 N. J. Eq. (on p. 305).

This well-settled rule of pleading is sometimes difficult of application, and the present case illustrates the difficulty. The answer of the defendant Cole denies the making of the contract alleged in the complainants’ bill, but then manifestly assuming that an oral contract was made, goes on to set forth the defendant’s interpretation of that oral contract or the defendant’s understanding of-its terms. The bill sets forth a contract whereby the complainants employed the defendant Cole as their agent to buy the land; the answer denies that any contract was made under which the defendant was employed to buy the land for complainants, but alleges that there was a contract made by the terms of which he was employed to endeavor to procure an option on the land for the benefit of the complainants, which option afterwards the owner refused to grant. No reference whatever is made in the answer to the statute of frauds. Under these pleadings the parties were sworn and testified as to what this oral contract was.

After parties have joined issue on their pleadings as to what oral contract they entered into, and each has endeavored in a protracted trial by the production of witnesses, to support his view as to the terms-of the contract, I have a very grave doubt whether it is permissible to the defendant, acting upon a suggestion from opposing counsel or from the court, to say at the end of his argument, or by a supplemental brief: “Well, it does not make any difference what this contract was. I have denied the existence of the contract set forth in the bill of complaint, and I now invoke the statute of frauds as a complete defence even if the court is satisfied as the result of the trial that the complainant’s account of the verbal contract is true and mine untrue.”

It is unnecessary for me to decide this question of pleading, and possibly an examination of the authorities 'would show that it is not- an open question in this state. The decision will rest upon the view of the law of the case above indicated.

A decree will be advised establishing a constructive trust on behalf of the complainants, and directing the defendants to execute the trust by conveying the land to the defendant upon payment of the price. The rights of the defendant who has purchased a portion of the land will be considered and protected to the extent necessary, and any unconsidered matters will be determined upon settlement of the decree.