author: Howell, Y. C.

text:
    Levi W. Case et al., executors, &c., v. Oswald Hasse et al.
    [Submitted January 22d, 1914.
    Decided February 2d, 1914.]
    1. By an item in her will a testatrix gave to five named persons “to each and all above or to their heirs two thousand dollars.” — Held, that the contention that thereby the testatrix appropriated the sum of §2,000 to be divided among the five persons therein named, giving them $400 each, is not admissible, but that she intended to give to each one of the said five persons the sum of $2,000, or $10,000 in all.
    2. By another item in her will the testatrix gave to her half-sister all her “furniture and personal belongings.” — Held, that the words “furniture and personal belongings” carry the contents of her apartments in an apartment-house wherein the testatrix lived, as they were at the time of her death.
    3. Another paragraph of the will of the testatrix relating to a bequest to the poor children of Dresden, upon which two questions arise, the first as to what property is included in the bequest, and the second, whether the bequest is valid as a charitable use, provides as follows: "IIII. My Old Master paintings which are in the safety deposit vault of the Bank of Montclair, including a Panini & Wouverman, also a Sálvate Bosa, are to be taken to Europe to be recognized by art authorities and the proper and highest prices are to be sought for them in sale and the sum obtained through these is to be given over to to charity, namely, to the poor children of Dresden, Saxony, Germany, for a summer home, among these pictures being a genuine Turner and Raephael and other famous and noted Masters, and they are known to be genuine a high price ought to be obtained sufficient to realize this the above. Should more than twenty-five thousand dollars be obtained the balance is to be divided among my brothers and sisters heretofore mentioned, my half sister Martha Buetner at Erfurt Eisenwach to receive the sum of three thousand dollars for her little daughter, Lottie.” By the fifth item of the codicil the testatrix provides for the sale of her land at Pittstown, giving her half-sister some portion thereof, and then proceeds: “The balance of the money or proceeds of said sale of farms and land to go to the fund for the vacation colony for poor children in Dresden, Saxony, Germany.” — Held, (1) with respect to the question what property is devoted to the satisfaction of this bequest, that the same comprised such paintings as she had on storage at the Bank of Montclair, it being doubtful from the evidence whether she had on storage with that bank any paintings of the character described by her as Old Master paintings, but it appearing that she did in fact have there on storage certain pictures which she meant to devote to the charity named by her; and held further, (2) with respect to the validity of the bequest as a charity, that the bequest contained in the will and in the codicil in that behalf is a valid exercise of the testamentary power; and held further, (3) that the fact (a) that no person or corporation was appointed to receive the bequest, that circumstance will not invalidate the bequest, inasmuch as equity never lacks a trustee; and (b) the direction that the pictures be taken to Germany for recognition by art authorities, or for any purpose, is not binding upon the executor, the provision in the will in that behalf being merely directory and not mandatory; and (c) as to the variance between the provision in the original will and that contained in the codicil, the original will making the gift to “the poor children of Dresden, Saxony, Germany, for a summer home” and the codicil providing that the balance of the money arising from the sale of the farms shall go for the “vacation colony for poor children in Dresden, Saxony, Germany,” the will and the codicil must be construed together and with reference to each other, and thereby the testatrix had in mind at the time she executed 'the codicil the same gift and bequest that was in her mind at the time she executed the will in favor of the summer home for the poor children of Dresden.
    4. By another bequest the testatrix gave to another legatee “a painting to be selected, and also a few Oriental rugs to be selected by her.”' — ■ Held, that that portion of the bequest which relates to the painting is valid, but that the one which relates to the Oriental rugs is void, for uncertainty.
    5. By another item of her will the testatrix made certain bequests to one of the witnesses to the will. — Held, barred by the statute.
    6. By another item of her will the testatrix directs that her house on Upper Montclair avenue “on which rests a loan of $3,000 in the Bank of Montclair” shall be sold, &c. There was no loan of $3,000 obtained from that bank which was in any way a lien upon this land. The testatrix had borrowed $3,000 on her note, with collateral security, but there being nothing in the transaction or in the will or codicil charging that loan of $3,000 on the Dpper Montclair avenue property — Held, that the executor, or Louisa Hasse, the half-sister, or perhaps they jointly, should sell the said property subject to the $4,000 mortgage in that paragraph mentioned.
    7. Under item five of the codicil relating to the distribution of the proceeds of the sale of the farms of the testatrix at Pittstown, New Jersey, Louisa Hasse, the half-sister of the testatrix, claiming that she is entitled to $2,500 out of such proceeds, and the residuary legatees resisting this claim and asserting that she is only entitled to $500, or, in other words, enough to bring her total cash legacy up to $2,500 — Held, that the testatrix intended that these farms, three in number, should be successively sold and that her half-sister Louisa should receive $2,500, all told from the proceeds of the several farms, the words “all told” referring not to the money legacy but to the farms.

      On final hearing on bill, answer, replication and proofs.

      Mr. Pcml W. Queen, for the complainants.

      Mr. Louis A. Ziegler, for the city of Dresden, Germany.

      Mr. John IF. Queen, for Louisa Hasse.
   Howell, Y. C.

This suit is brought by the executors of the will of Marie Auguste Buttner, who died on November 15th, 1911. Her residence was in Montclair. Her will and a codicil thereto were admitted to probate by the surrogate of the county of Essex.

The testatrix was bom in Germany; she came to this country many years ago, and for the last twenty years of her life had charge of the German department of the high school of the city of Newark. All her relatives resided in Germany and still reside there, excepting her half-sister Louisa Hasse, who came to this country a few years ago .at her'request. The testatrix occupied apartments in an apartment-house in Montclair: Miss Hasse lived with her .for a short time, but eventually she became a teacher herself and resided apart from the testatrix. Their relations were very friendly.

The testatrix was a connoisseur in art, and she had in her apartments at the time of-her death a large number of pictures, nearly all of which were hung upon the walls, and she had likewise many pieces of bronze and other articles which usually pass under the name of art objects.

The claims made by the several defendants fully appear as the construction of each doubtful paragraph is discussed.

The first item of the will that is challenged is the second paragraph, which reads as follows:

“II. I give and bequeath to my half brother Oswald Hasse. of Dresden, and to my half sisters Mrs. Willy Lehman, Mrs. Liddy Iturse, Mrs. Helena Herring, of Germany, & Louisa Hasse, of N. J., to each and all above or to their heirs two thousand dollars.”

It is claimed on the part of the residuary legatees, or some of them, that by this paragraph the testatrix appropriated the sum of $2,000. to be divided among the five, persons therein named, giving- them $400 each. Such a construction is not admissible, however, for the reason that it would do violence to the word “each,” which has a prominent place in the context. My reading of the phrase is “to each and every one of the above named persons,” &c. I therefore conclude that the testatrix intended to give and did give to each one of the said five persons the sum of $2,000, or $10,000 in all.

The next item of the will to which criticism is directed is the third item, which reads as follows:

“III. To my sister Louisa Hasse, living in this country, I also give and bequeath my furniture and personal belongings.” Under tlfis item Louisa Hasse claims all the property which was in the apartment of the testatrix at the time of her death, including all the pictures, bronzes and other art objects situated therein. It appears by the testimony that the testatrix had or supposed she had 'a fine taste in matters of art, that she was a large purchaser of art objects, and that she had a great love and admiration for the collection she had made. She had filled her apartments with objects of this character; perhaps very few of them were used as necessary adjuncts to her housekeeping; so that it may be said that all or nearly all of the articles referred to were there for the purposes of decoration and ornamentation. It was urged on the argument that articles of mere decoration, as pictures and bronzes, could not by the most liberal interpretation of the will pass as furniture, but if the whole thereof were to be divided into articles useful and articles ornamental merely, one would find it difficult to determine the exact point of division. It would be difficult to say whether a certain picture should constitute an ornamental and decorative feature, or whether it was furniture. This has led me to the conclusion that on the face of the will itself the words “furniture and personal belongings” carry the contents of the apartment as they were at the time of the death of the testatrix. There is considerable authority for this position. In Kelly v. Powlet (1763), Amb. 605, the bequest was to the defendant of “her household furniture and farming utensils” which should, be within or upon the premises at lier death. The court says: “The words “household furniture’ has as general a meaning as possible; it is incapable of a definition; it is capable only of a description; it comprises everything that contributes to the use or convenience of the householder or ornament of the house.” The pictures which were hung up and were in cases were carried by the devise. In Bridgeman v. Fitzgerald, in re Londesborough (1881), 50 L. J. Ch. 9, the testator gave to his wife during her life certain premises ““and the statuary, furniture and other effects purchased by him therewith or which might be therein at the time of his decease.” It was held by Vice-Chancellor Malins that while it was clear that the testator did not intend to give to his wife outright a valuable collection of pictures, he did mean that she was entitled to the enjoyment of them during her life.

In Sumner v. Blakslee, 59 N. H. 242, property was described in a chattel mortgage as follows, ““meaning and intending hereby to convey all the furniture now in and belonging to the said Sumner house of whatever name and character and wherever situated in said house.” These words were held to include pictures. In Richardson v. Hall, 124 Mass. 237, a bequest ““of all the household furniture” carried pictures, bronzes and statuary which were in the house at the time of the death o£ the testator. And generally see 2 Wms. Ex. 468. And finally, it was held in Endicott v. Endicott, 41 N. J. Eq. 93, that the term ““furniture” embraces everything about the house that has been usually enjoyed therewith, including plate, linen, China and pictures. .

I must therefore hold that it was the intention of the testatrix to give and bequeath to her half-sister Louisa Hasse all the contents of her apartment as they were at the time of her death.

The next paragraph of the will relates to a bequest to the poor children of Dresden for a summer home. Two questions arise out of it, the first one being as to what property is included in the bequest, and the second, whether the bequest is valid as a charitable use. The paragraph of the will reads as follows:

“IIII. My Old Master paintings which are in the safety deposit vault of the Bank of Montclair, including a Panini & Wouverman, also a Sálvate Rosa, are to be taken to Europe to be recognized by art authorities and the proper and highest prices are to be sought for them in sale and the sum obtained through these is to be given over to to charity, namely, to the poor children of Dresden, Saxony, Germany, for a summer home, among these pictures being a genuine Turner and Raephael and other famous and noted Masters, and they are known to be genuine a high price ought to be obtained sufficient to realize this the above. Should more than twenty-five thousand dollars be obtained the balance is to be divided among my brothers and sisters heretofore mentioned, my half sister Martha Buetner at Erfurt Eisenwach to receive the sum of three thousand dollars for her little daughter Lottie.”

By the fifth item of the codicil she provides for the sale of her land at Pittstown, giving her sister some portion thereof, and then proceeds, “The balance of the money or proceeds of said sale of farms and land to go to the fund for the vacation colony for poor children in Dresden, Saxony, Germany/1’ The first question that arises under this bequest is what property is devoted to its satisfaction. It seems to me very doubtful from the evidence whether she had on storage with the Bank of Montclair any paintings of the character described by her as Old Master paintings; but whether there were or not, as a matter of fact she did have on storage at that bank certain pictures which she meant to devote to the charity named by her, and I therefore conclude that the property which she devoted to the charity mentioned was such paintings as she had on storage in that bank.

Passing on to the next question, which relates to the validity of the bequest as a charity, we find that she directs these pictures to be sold and the sum to be given to the poor children of Dresden for a summer home. The bequest comes directly within the definition given of a charitable use by Mr. Justice Gray in the case of Jackson v. Phillips, 14 Allen 556, where he says: “A charity in the legal sense may be more fully defined as a gift to be applied consistently with existing laws for the benefit of an indefinite number of persons either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of government; it is immaterial whether the purpose is called charitable in the gift itself, if it be so described as to show that it is charitable in its nature.” This definition was approved by Chancellor Runyon in DeCamp v. Dobbins, 29 N. J. Eq. 36, and by the court of errors and appeals in MacKenzie v. Trustees of Presbytery of Jersey City, 67 N. J. Eq. 652.

It will be observed that she denominates the bequest is to be a charity, although it sufficiently appears to be such from the context.

The bequest likewise comes within the definition of a chari-. table use rv-ritten by Chief-Justice Beasley in the court of errors and appeals in DeCamp v. Dobbins, 31 N. J. Eq. 671, and within the doctrine announced in this court in Trustees v. Wilkinson, 36 N. J. Eq. 141, and Hesketh v. Murphy, 36 N. J. Eq. 304. The subject is discussed generally in 2 Perry Trusts, § 699.

I have no hesitation in declaring the bequest contained in the will and in the codicil to be a valid exercise of the testamentary power. There are, however, three matters arising out -of the bequest which call for attention. One is the fact that no person or corporation was appointed to receive the bequest, and another is the direction that the pictures be taken to Germany for recognition, as she says, by art authorities. I see no reason why these pictures should be transported to Germany for any purpose. I do not think that the provision in the will is mandatory; it is merely directory; and tins appears from the fact that the thing that was in the mind of the testatrix was that the pictures should bring a high price, or at least their full value, evidently believing that better prices could be obtained there than here. _ This was negatived by an expert picture dealer in his testimony; he was of the opinion that they could be sold as well here as in Germany. The pictures seem to be of comparatively small value, and it would be out of consonance with reason or with the ideas of the testatrix that a large sum of money should be expended in their transportation to Germany upon the chances of getting a higher price for them than could be obtained for them in New York.

The lack of a trustee will not invalidate the bequest. It is a well known saying that equity never lacks a trustee, and there can be no difficulty whatever on that score. It appears from a document in evidence that the city of Dresden is authorized to accept bequests of this nature, but if it should be found not to be so authorized, this fact would not stand in the way of the validity of the bequest.

The third matter relates to the variance between the bequest in this behalf contained in the original will and that contained in the codicil. In the original will the gift is to "the poor-children of Dresden, Saxony, Germany, for a summer home.” The codicil provides that the balance of the money arising from the sale of the farms shall go to the fund for the "vacation colony for poor children in Dresden, Saxony, Germany.” The will and the codicil must be construed together and with reference to each other. I think there can be no doubt but that the testatrix had in mind at the time she executed the codicil the same gift and bequest that was in her mind at the time she executed the will in favor of the summer home for the poor children of Dresden.

The next bequest concerning which there is any dispute is the one of Miss Hester D. Dean, to whom is given "a painting to be selected, and also a few Oriental rugs to be selected by her.” That portion of the bequest which relates to the painting is valid, but the one which relates to the Oriental rugs is void, for uncertainty. No one can know what the testatrix had in mind when she said "a few Oriental rugs.” A bequest of articles to be selected is not void. When there is such a bequest, and no person is appointed to make the selection, nor any details of the manner in which it shall be made are provided for, then and in such case the selection is made by the legatee. Cleveland v. Carson, 37 N. J. Eq. 377. The English rule is the same. Jacques v. Chambers, 2 Coll. 435; Millard v. Bailey, L. R. 1 Eq. 378; 33 L. J. Ch. 312.

All the bequests to Jennie E. Romer are void. She was one of the witnesses to the will, and is barred by our statute.

The next item of the will concerning which there is any dispute is paragraph 4 of the codicil. The testatrix there directs that her house on Upper Montclair avenue, "on which there rests a loan of $3,000 in the Bank of Montclair,” besides a mortgage of $4,000, shall be sold, &c. The evidence shows that there was no loan of $3,000 obtained from the Bank of Montclair which was or is in any way a lien upon this land. She had borrowed $3,000 of the Bank of Montclair on her note, with collateral security, but there is nothing in the transaction or in the will or codicil which charges.that loan of $3,000 on the Upper Montclair avenue property. My opinion, therefore, is that the executor, or Louisa Hasse, or perhaps they joint!y, should sell the said propertj', subject to the $4,000 mortgage, and divide the proceeds in accordance with the direction in that paragraph.

Item 5 of the codicil relates to the distribution of the proceeds of the sale of her farms at Pittstown, New Jersey. Louisa Hasse claims that she is entitled to the sum of $2,500 out of such proceeds. The residuary legatees resist this claim and assert that she is only entitled to $500, or in other words, enough to bring her total cash legacy up to $2,500. My construction of the will is that she intended that these farms, three in number, should be successively sold and that her half-sister Louisa should receive $2,500 all told from the proceeds of the several farms, the words “all told” referring not to the money legacy, but to the farms. To construe this paragraph according to the sirggestion of counsel for the city of Dresden would compel air ascertainment of the value of the furniture and personal belongings of the testatrix which are given to her sister Louisa by the third item of the will. The words “all told,” therefore, must relate either to the farms or to the total money value of all the legacies given to her sister. If applied to the total bequests to her it will be seen that the limitation would have been reached long before a resort could be had to the proceeds of the sale of the farms.

I will advise a decree in accordance with these views.


source: Caselaw Access Project

author: Howell, Y. O.

license: Public Domain

text:
    Amelia Koegel et al. v. Henry C. Koegel et al.
    [Decided February 11th, 1914.]
    1. Under P. L. 1880 p. 255, providing that no sale of property shall be confirmed by the court until the judge is satisfied that the property has been sold at the highest and best price, confirmation of a judicial sale is a mere determination that the property brought the highest and best price that could be obtained for it, and hence an application to open the sale will be entertained after confirmation; the only mode of attack upon a judicial sale on grounds other than that the property did not bring the highest and best price being by independent bill or petition, which can be filed after confirmation.
    2. In determining the rights of a purchaser to be relieved of his purchase at a judicial sale of land, the courts must have recourse to the principles which would govern in a proceeding to rescind an ordinary contract of sale.
    3. Unless the fund is under the control of the court, that tribunal will not relieve a purchaser at a judicial sale of his purchase, except on the ground of fraud.
    4. An owner of land devised it to his wife during widowhood, with a provision that, upon her death or remarriage, and upon the arrival of his youngest child to the age of twenty-one years, his executors should divide the property into as many shares as there might be children, or heirs of deceased children. The widow and daughter of the testator filed a bill for partition, and the property was advertised for sale, as if the parties held by fee-simple title. — Held, that, under P. L. 1906 p. 269, providing that a purchaser at. a judicial sale shall be relieved of his purchase by showing a defect in the title, unless notice of the defect was given in the notice of the sale, a purchaser was entitled to be relieved of his purchase; for the .decree of partition did not operate on the title to the land, and could not invest him with fee-simple title.
    On petition.

      Mr. John Monteith, for the petitioner.

      Mr. Frank E. Bradner, for the respondent.
   Howell, Y. O.

The bill in this case is an ordinary partition bill. The proceedings eventuated in a decree which ascertained the rights of the parties in the land and directed a sale thereof to be made under the direction of a special master. This sale was regularly advertised, and the petitioner, who was a stranger to the suit, became the purchaser. The sale was reported to the court and was confirmed in the regular course. The petitioner now files his petition asking to be relieved of his bid and purchase upon the ground that the title is defective. To this the respondent objects that the rule of caveat empbor applies to judicial sales; that the petitioner was negligent, in that he did not have the title examined before he made his bid, and lastly, that the master’s deed to be made in pursuance of the decree will give him a good title. It is quite generally held by the American courts that no application to open a judicial sale will be entertained after the sale shall have been confirmed, but that the rule does not prevail in this state under the act of 1880. P. L. 1*880 p. 265. Confirmation under that act merely covers the point that the property brought the highest and best price that could be obtained for it in cash. Bethlehem Iron Works v. P. & S. R. R. Co., 49 N. J. Eq. 356; Fleming v. Fleming Hotel Co., 70 N. J. Eq. 509; Oakley v. Shaw, 69 Atl. Rep. 462; Cropper v. Brown, 76 N. J. Eq. 406. It was likewise held that an attack upon the sale on any other ground must be made the basis of independent action, either by bill or petition, and it was held 'by Vice-Chancellor Garrison, in Cropper v. Brown, supra, that there was no distinction in this state in respect to the ¡Drincijoles to be applied touching the rights of the parties between judicial sales and other similar sales voluntarily made between the parties. Therefore, in adjudicating upon the right of the petitioner to have the sale set aside we must have recourse to the principles which would govern the court in a proceeding to rescind the contract of sale.

In examining the eases in other states relating to the setting aside of judicial sales, it seems to be quite generally noted that the court is inclined to deal rafter liberally in the matter in proper cases, provided the fund produced by the sale is still under the control of the court; but where the fund has been paid in and distributed, no application, except for fraud, would be listened to. In this case it appears that $1,000 has been paid on account of the purchase-money which has been deposited to the credit of the master as an officer of the court at a bank of deposit in Newark, so that the fund is wholly under the control of the court, and the above-mentioned condition arising out of the situation fully complied with.

The petitioner’s claim of equity on this application requires an examination of the proceedings in the partition suit. The facts in relation thereto are these: One Conrad Koegel died seized of the lands in question leaving a will by which- he gave the residue of his estate to his executors, or the survivor of them upon trust to pay the income thereof to his wife, Mathilde, as long as she should remain his widow, for her use and benefit, and the maintenance, support and education of his children during their minority, and that upon the decease or marriage of his wife, and the arrival of the youngest of his children to the age of twenty-one years, his executors should divide the remaining property into as many shares as there might be children or heirs of deceased children, and so distribute the same, share and share alike. The bill was filed by the widow of the testator and one of the daughters. All the children and grandchildren were made defendants, among them three infants and one lunatic. The bill proceeds upon the theory that the legal title to the land in question was in the children and descendants of the testator, subject only to the right given by the will to the widow; the whole case proceeded upon the idea that the legal title so rested. The master reported the rights of the parties as rights in an estate in fee, and the decree for sale ascertained and established those rights as fee-simple rights, subject, however, to the provision in favor of the widow. The property was advertised for sale by the master as if it were held under a fee-simple tenure, and there was no notice under the act of 1906 (P. L. 1906 ¶. 269) of any defect in the title.

Just how the master who made the sale now sought to be set aside can invest the petitioner with a fee-simple title to these lands under the present proceeding is inexplicable. It is true that theie may be a partition of an equitable estate, but that relief is not sought by this bill, nor is the pleading drawn for that purpose. The only estate that can be partitioned under this bill is a fee-simple estate, an estate which it is very clear the paities do not possess. The decree does not operate on the land; it has no relation to the true state of facts. What the master’s deed is intended to do in partition suits is to transfer to the purchaser the rights and interests of the parties to the suit. In this case it could at best transfer only the equitable rights of the adults, and probably none of the rights of the lunatic or the infants. It appears to me to be a case of mistake from the consequences of which the purchaser ought to be relieved. It would be grossly inequitable to compel him to pay the purchase-money amounting to $10,500 and get for it so little as it is apparent he would get if he were compelled to perform this contract.

In my opinion, the petitioner is entitled under the act of 1906 to a marketable title, and I think that it is quite apparent that he would get no such title under a master’s deed in this case.

I will advise an order that the petitioner be relieved of his bid and that the deposit paid by him be returned to him. Costs should not be taxed against either party.


author: IIowell, Y. C.

text:
    Arthur Brisbane v. James A. Sullivan et al.
    [Decided March 2d, 1914.]
    1, Although an agreement to convey lands does not contain the phrase “good title,” if it does contain a covenant to “well and sufficiently convey” to complainant’s assignor, “his heirs and assigns by deed of full covenant and warranty, free from all encumbrance except,” &c., this means that the vendor is bound to make a good title.

      2. The vendor having agreed that he would make a good title, and finding it impossible to do so, must, at the call of the vendee, convey what interest the vendor has, and receive the purchase-mopey, less an abatement thereof equal to the value of the interest not conveyed.
    3. A purchaser on a bill for specific performance filed by the vendor will not be compelled to accept compensation or indemnity, but on a bill by the purchaser the vendor will be required to allow compensation if he should be able to make title for a part, but not for the whole, if the purchaser consents to accept part performance with compensation.
    4. This rule prevails whether the deficiency relates either to the quantity or the quality of the estate, that is to the physical amount or tenure of the holding.
    5. The complainant in this suit being entitled to a decree that the defendants convey to the complainant whatever interest they have as life tenants during the life of a named person or otherwise, the deduction to be allowed is to be determined by ascertaining the value of the life estate and deducting the amount thereof from the total purchase-money, which will leave the sum to be allowed for compensation.
    6. But in this adjustment of the equities between the parties, the complainant must give up his claim for a warranty deed or must submit himself to a perpetual injunction to be provided for in the decree, against bringing any action, either at law or in equity, for the violation of any express or implied covenants on the part of the vendor touching the land in question.
    On final hearing on bill, answer, replication and proofs.

      2[r. Adrian Biker, for the complainant.

      2Ir. Randolph Perkins, for the defendants.
   IIowell, Y. C.

This is a suit for the specific performance of an agreement to convey lands. On July 8th, 1889, the lands in question belonged-to Thomas H. F. Wilks. On that day he died, leaving a will in and by which he devised the said property to Dora E. Wilks for the term of her natural life, and at her death to the heirs of her body born in lawful wedlock, with a devise over in ease of failure of issue. Dora E. Wilks subsequently married William P. Kastenlmber; she has become the mother of two children, born in lawful wedlock, both of whom are infants under the age of twenty-one years. Mr. and Mrs. Kastenhuber and the two children are living. Mrs. Kastenhuber, the life tenant, allowed the taxes assessed by the city of Jersey City against said premises to remain unpaid. Thereupon they were sold, and by direction of the circuit court of Hudson county a deed therefor was delivered to Charles R. Dieffenbach, the purchaser at the tax sale. He subsequently conveyed the same to William P. Kastenhuber, the husband of the life tenant, and they joined in a conveyance to James Billington, who in turn conveyed the same to the defendant Ella J. Sullivan. Miss Sullivan took title, not for herself, but for her brother, the defendant James A. Sullivan, who advanced the purchase-money. James A. Sullivan thereupon made the contract in question on July 19th, 1910. By this contract he agreed that he would convert the premises in question to Bennett Milnor, in consideration of the sum of $4,800, by deed, “of full covenant and warranty, free from all encumbrance, except a mortgage of $2,000 held by Jennie Turner,” on or before September 1st next ensuing the date thereof with stipulations concerning the method of the payment of the purchase-money. Milnor was acting for the complainant, and he subsequently made an assignment in writing to him of all his interest in the said contract. After the contract had been executed, and while it was in. the way of performance, it was discovered that there were serious defects in the defendant’s title. These defects are set out in a report made to the Title Guaranty Company which had undertaken to guarantee the title to the complainant, which report is annexed to the answer and is admitted in evidence under a stipulation filed on the day of the hearing. One of the serious objections is that title was made by virtue of a proceeding taken under what is known in this state as the Martin act, which proceedings are admitted by the said stipulation to be informal and not binding upon the Kastenhuber children.

The objections to the title made it necessary to postpone the performance of the contract, and it is was postponed by writing until October 1st, 1910, and subsequently to October 15th, 1910. The complainant filed his original bill for the specific pen formance on February 28th, 1911. At that time he had been informed of the exact state of the title and knew that the defendant Sullivan had at most only a right which depended upon the life of Mrs. Kastenhuber, and that this right possibly depended upon informal proceedings under the taxing laws which were not binding upon the Kastenhuber children. He subsequently filed an amended bill in ivhich he states that he has elected to accept from the Sullivans such title as they are able to convey to Mm, and he tenders himself ready and willing to pay to them a proportionate part of the purchase-money agreed upon to be ascertained by the court, or, in other words, he proposed to take such title as the Sullivans can give him, with a deduction from the purchase price for the value of that portion of the estate which cannot he conveyed.

Specific performance of this contract is resisted upon the grounds above indicated, and upon the further ground contained in the list of objections that there are a judgment and several criminal recognizances uneanceled of record which may be liens upon the land. Inasmuch as there is no testimony whatever in the case of the facts relating to the judgment and recognizances, I shall assume that they are included rather as a makeweight. As to the estate which the Sullivans now have in the premises, the defendants say that it is very uncertain and doubtful whether they have an unquestionable title for the life of Mrs. Kastenhuber, arguing that when Mr. Kastenhuber made his deed to Billington, Mrs. Kastenhuber joined in the conveyance merely to release her light of dower. But this cannot he the case; she either had a life estate in the whole property or she had not; if she had a life estate in the whole property, and the tax proceedings did not affect it because of their irregularity, she ivas left at their termination in the same position as if there had been no tax proceedings, and her joint deed with her husband would operate to convey any interest that she might have, either as life tenant or doweress, or otherwise, and because of her execution of the deed to Billington, the Sullivans undoubtedly have the right to the possession of the premises during the life of Mrs. Kastenhuber. Therefore, the only title which the Sullivans became possessed of was a right to enjoy the rents, issues and profits of the premises during the lifetime only of Mrs. Kastenhuber; and they therefore cannot comply specifically with the agreement that Mr. Sullivan entered into to convey title to the premises. It is true that the agreement does not contain the phrase "good title,” yet it does contain a covenant to "well and sufficiently convey” to Milnor "his heirs and assigns by deed of full covenant and warranty, free from all encumbrance except,” &c. This means that the vendor is bound to make a good title. Lounsbery v. Locander, 25 N. J. Eq. 554; Skinner v. Christie, 52 N. J. Eq. 720; Meyer v. Madreperla, 68 N. J. Law 258 (Court of Errors and Appeals). Hnder no circumstances, therefore, could the vendor succeed on a bill for specific performance; but the position of the vendee is different. The vendor having agreed that he would make a good title, and finding .it impossible to do so, must, at tire call of the vendee, convey what interest he Iras aucl receive the purchase-money, less an abatement thereof equal to the value of the interest not conveyed. This was held in the recent case of Farrell v. Bork, 79 Atl. Rep. 897; affirmed, 76 N. J. Eq. 615. There the vender liad title to only a three-fourths interest in the lands in question. He contracted to convey the entire title. The vendee elected to accept such title as the vendor could convey, and it was held that Ire was entitled to a decree for the specific performance of the contract, less one-fourth of the title upon payment of three-fourtlrs of the purchase-money. This was in 1910, but long prior to that, it was held by our appellate court, in Lounsbery v. Locander (1874), supra, that a purchaser on a bill for specific performance filed by the vendor would not be compelled to accept compensation or indemnity, but that on a bill by the purchaser the vendor would be required to allow compensation if he should be able -to make title for a part but not for the whole and if the purchaser consents to accept part performance with such compensation. A similar ruling was made in this court in Borden v. Curtis, 48 N. J. Eq. 128, and in Keator v. Brown, 57 N. J. Eq. 600.

The English eases disclose a similarity of judicial thought, as will appear by an examination of the cases from those courts cited in the brief on behalf of the complainant. Nelthorpe v. Holgate, 1 Coll. 204; Barnes v. Wood, L. R. 8 Eq. 424; Barker v. Cox, L. R. 4 C. D. 464.

This rule seems to prevail whether the deficiency relates to either the quantity or the quality of the estate, that is to the physical amount or the tenure of the holding. In Tobin v. Larkin, 183 Mass. 389, the deficiency was one-twelfth part of the property which the vendor did not own, but the rule was enforced against him; and in Barnes v. Wood, supra, the husband, who liad only an estate pur aider vie, contracted to convey the fee. The purchaser elected to take what title he could give, with a proper allowance by way of compensation for the deficienc3r. In that case Vice-Chancellor James says: “The plaintiff entered into a contract with him in ignorance of any defect in title. The husband, therefore, would be bound to convey whatever interest he had. The defendant is bound to the same extent, and it-is for the court to find out in the best way it can how compensation can be made. There must be a declaration that the plaintiff is entitled to a specific performance of his contract to the extent of Springer’s interest, with a reference to inquire what compensation should be made for the outstanding interest.” .

My conclusion, therefore, is that the complainant is entitled to a decree that the defendants Sullivan and sister convey to the complainant whatever interest they have as life tenants during the life of Mrs. Kastenhuber, or otherwise, and it only remains to ascertain what deduction should be made from the agreed purchase-money to compensate the complainant for the deficiency in the title. This can easily be determined by ascertaining the value of the life estate and deducting the amount from the total purchase-money, which will leave the sum to be allowed for compensation.

But. in this adjustment of the equities between the parties the complainant, must give up his claim for a warranty deed, or must submit himself to a perpetual injunction, to be provided for in the decree, against bringing any action, either at law or in equity, for a violation of any express or implied covenants on the part of the vendor touching the land in question. If the vendor intended to pay the whole of the purchase-money he might possibly be remitted to his remedy on the covenants, but inasmuch as he is now being compensated for the breach of the covenants, he cannot insist upon their insertion in the deed, or on any right of action in respect thereof.


text:
    James S. Shotwell et al. v. John A. Stickle et al.
    [Submitted February 10th, 1914.
    Decided March 12th, 1914.]
    1. Where, in a suit by the heirs of a wife to partition land, the husband answered and claimed the land under a resulting trust because he had furnished the purchase-money, the husband was not incompetent to testify as to statements by, and transactions with, the deceased wife, under the Evidence act of March 23d, 1900 (P. L. 1900 ¶. 363 § 4)> since there was no representative relation between the heirs and the deceased wife.
    2. The maxim that he who comes into equity must come with clean hands refers to willful misconduct in regard to the matter in litigation, and not to misconduct, however gross, which is unconnected therewith, and with which the adverse party has no concern.
    3. In a suit for partition, by heirs of a wife, of land alleged to belong to her, and which the husband claimed under a resulting trust, evidence held to show that the husband furnished ail the purchase-money.
    4. Though, where a husband furnishes the purchase-money for land conveyed to his wife, the presumption is that it was intended as a gift, and hence no trust results, yet the presumption may. be rebutted.
    5. In partition by heirs of a wife, in which the husband claimed the land under a resulting trust, evidence held sufficient to show that the husband, in furnishing the purchase-money for the conveyance to the wife, did not intend it as a gift, and hence a trust resulted.
    On final hearing on bill, answer, cross-bill, replication and proofs.
    This suit is brought for the partition of a farm near Johnsonsburg, in Warren county, formerly owned by one Isaac Stickle, who died in the month of May, 1900. He left a will by which, among other things, he appointed his three sons Joseph P. Stickle, Philip Stickle and Jolm A. Stickle as executors thereof. He gave them power to make sale of his real estate, directing that such sale should be public and should be advertised in the same manner as is required by law for sale of lands by order of any court. In pursuance of this direction the executors advertised the premises for sale in December, 1900, in the manner prescribed by the -will, but were unable to procure any bids. An agreement was subsequently reached that John A. Stickle, one of the executors, should purchase the property for the sum of $7,000, which was reduced to writing and was executed on March 6th, 1901. It provided that the said John A. Stickle should pay to the executors of the will of Isaac Stickle the sum of $5,475.91 and assume a dower mortgage on the premises for the principal sum of $1,524.09; that the executors should advertise the farm at public auction for as soon a day as possible, and that at the sale the farm should be sold to such person as the said John A. Stickle should designate at whatever price or amount the same should be bid up to, and upon the delivery of the deed the said J ohn A. Stickle bound himself to pay the said sum of money, which was to he regarded as the purchase price, notwithstanding the sum or amount for which the said farm should be struck off and sold. Two of the executors, Joseph P. Stickle and Philip Stickle, covenanted that they would advertise the farm and sell the same to John A. Stickle for the sum above mentioned, and deliver to him or to such person as he might designate a good and sufficient deed for the price aforesaid, notwithstanding the sum or price at which the farm might be struck off at the sale. It was further provided that the share of John A. Stickle in his father’s estate should be taken as a payment on account of the purchase-money, and that in case he neglected or refused to receive the deed and pay the purchase-money Ms said share should be forfeited to the executors; that the sale should be advertised for April 13th, 1901, and the deed be delivered at the office of George A. Angle at Belvidere on Saturday, April 20th, 1901.
    The farm was advertised for sale as agreed; it was purchased in the name of Martha Stickle, the wife of John A. Stickle, and the deed was delivered at the office of Mr. Angle on April 20th following. The deed was taken by John A. Stickle to the. office of the county clerk and left there for record, he paying the clerk’s fee therefor. At this time J ohn A. Stickle and his wife were living on the farm in question as tenants of the father’s estate. After the delivery of the deed they returned home, continued their occupation of the premises until the death of Martha Stickle, which occurred on May 15th, 1909. During all this period the title to the farm remained in Martha Stickle, and she died without having made conveyance thereof to any one. She left, as her heirs-at-law the persons named in that behalf in the bill of complaint, among the others, her brothers James S. Shotwell and Ivan Shotwell, the complainants in this suit, who filed their bill for the purpose of obtaining partition of the said lands among the heirs-at-law of the said Martha Stickle.
    John A. Stickle, her husband, alleges in his answer and in his cross-bill that at the time of the sale of the farm and the delivery of the deed he paid all the purchase-money out of his own funds, and that his wife agreed that she would make a deed to him at any time when he might request it or when it was convenient for the parties to transfer the title. He likewise says that he erected a new house and barn upon the premises, and repaired other buildings, which cost him in the aggregate over $5,000, and that he made other improvements on the farm sufficient to bring up his total expenditure for betterments to the sum of $6,000; that he paid the taxes, averaging ninety dollars per annum; the insurance premiums, the interest on the dower mortgage to Mrs. Lang, and that during the whole period of his possession he conducted the business of farming on the said premises at his own expense, for his own account, and took the proceeds thereof as his own; that his wife not only contributed nothing to the purchase-money, but that she had a separate estate of only about $1,600, no part of which he ever received, which was always invested by her for her own benefit and in her own way.
    At the time of the death of Mrs. Stickle she left no children. However, a child was born to them on September 21st, 1891. The defendant John A. Stickle says that this child was born alive. This is denied by the complainants and the other defendants, who allege that the child was born dead, and that no rights whatever can be predicated on this event. It likewise appears, and is undisputed, that John A. Stickle subsequently to the death of his wife purchased the interests of James I. Shotwell and Dellie Shotwell, a brother and sister of Mrs. Stickle, for the sum of $2,200.
    The questions arising are whether John A. Stickle paid all the purchase-money for the said premises, whether the eiremnstances show that a trust resulted from the wife to him, growing out of the payment of such purchase-money, whether in ease a resulting trust is not so found the said John A. Stickle by virtue of his marriage, the seizin of the wife of the lands in question and the birth of a child alive confers upon him a right of curtesy in the said lands.

      Mr. Thomas M. Kays and Mr. Henry Huston, for the com- ■ plainants.

      Mr. George M. Shipmcm and Mr. William H. Morrow, for the defendants.
   Howell, Y. C.

Before reaching the merits of the controversy it is necessary to determine a preliminary question relating to the admissibility of certain evidence which was offered on the part of the defendant John A. Stickle. The offer was to introduce by him statements made by and transactions had with Martha Stickle, his wife. ' This offer was objected to upon the ground that its reception would be a violation of the fourth section of the Evidence act of 1900, for the reason that the heirs-at-law of Martha Stickle were her representatives in the suit within the meaning of the statute. The evidence offered was received subject to be stricken out if the court upon consideration should conclude that it was incompetent. Hpon consideration of the circumstances, and the examination of the authorities, I have reached the conclusion that the evidence was properly admitted, and I reach this conclusion upon the ground that there is no representative relation in the case which can be held to bring it within the statute. The parties here represent no one; they are each and all litigating concerning his and their own individual rights; wliat they shall take by the final decree they will take not as anybody’s representatives, but for themselves individually, and in their own right. Such was the holding of the court of errors and appeals in Smith v. Smith, 52 N. J. Law 207, which was an action for dower brought by the widow against the lessees and devisees of the husband; and in McKinley v. Coe, 66 N. J. Eq. 70, which was an application by the payee of a note given by the testatrix whose will charged her debts on her lands for a direction that the proceeds of sale of land sold in partition proceedings should be applied to the payment of her note; followed in Cowdrey v. Cowdrey, 71 N. J. Eq. 353, the latter case having been affirmed on appeal in 72 N. J. Eq. 951. The precise question was decided by Yice-Chancellor Emery in the case of Small v. Pryor, 69 N. J. Eq. 606, a case in winch the circumstances closely resemble thoSe before the court in the case at bar. There the complainant filed a bill for partition. The widow of the decedent filed a cross-bill, claiming the property under a resulting trust on the ground that although she had furnished the purchase price, the title was taken in the name of her husband. The evidence of the widow to show the circumstances was admitted upon the authority of the cases above cited; it was held, however, that the weight of the evidence was insufficient to establish the trust. I therefore conclude that the testimony in this ease was properly admitted, and the motion to strike the same from the record is denied.

There is yet another matter to be examined before we reach the merits. The objection is made that John A. Stickle ought not to receive any relief from this court because he has come into court with unclean hands; that is to say, that by making the agreement of March 6th, 1901, with his brothers and co-executors, Joseph P. Stickle and Philip Stickle, touching the disposition of the lands of which his father died seized, he committed a fraud upon his brothers and sisters, and that this was intensified by the provision in the agreement that he should only pay $7,000 for the farm, no matter what the highest bid was. It may well be that under certain circumstances he might have been called to account for these irregular transactions, the principle being that no trustee shall be allowed to purchase at his own sale. Smith v. Drake, 23 N. J. Eq. 302; Marr v. Marr, 73 N. J. Eq. 643. But it will be observed that this is not a proceeding on behalf of the devisees under the will of Isaac Stickle, but is an entirely separate and distinct cause of action. Possibty the heirs of Isaac Stickle might have -set aside the transaction, but it appears by the evidence that they knew all about it, acquiesced in it and accepted their respective shares of the purchase-money. This is a condonation of the maxim of equity appealed to and estops them from obtaining any decree adverse to the transaction; but the maxim does not reach so far. Tt must be understood to refer to willful misconduct in regard to the matter in litigation, and not to misconduct, however gross, which is unconnected therewith and with -which the opposite party in the cause has no concern. 1 Pom. Eq. Jur. § 899; Sm. Eq. Man. § 89; Wilkinson v. Fowkes, 9 Hare 592; Gibson v. Goldsmid, 5 D., M. & G. 757. It is obvious that the cause of action to which that maxim might apply is a cause of action in favor of the Stickle heirs and devisees, and not a cause of action which relates to the estate of which Martha Stickle died seized; lienee the maxim has no application to the case in hand.

The first question pertaining to the merits of the controversy is whether .John A. Stickle paid to his brothers all the purchase-money for the said premises. Deducting the dower mortgage, $1,524.09, there remained to be paid $5,475.91. This was done in the following manner: There was first the check of Mrs. Stickle for $4,375.91, check for milk which Mr. Stickle carried with him for $155.34; his interest in his father’s estate, $949.41. This left him short, as his story is, $49.54, which amount was advanced by his brother Philip, to whom he after-wards repaid the amount. These figures overrun the amount of the payment, and the discrepancy is not explained, but while they do not exactly coincide, I am satisfied that the payment was made substantially in the way just mentioned. I am likewise satisfied that the money for which Mrs. Stickle gave her check, viz., $4,375.91, was wholly the money of John A. Stickle;, it was made up in this manner: He had on deposit in the Merchants National Bank of Newton $1,209.94; he sold a mortgage, which he held on the Andover Methodist Church for $1,872 * he collected from Frank Carr $420; borrowed from Isaac Carr $400, and from his wife $60; deposited cheek for $155.34; had his note discounted at the bank, and obtained as. proceeds $258.63. This money was transferred to the credit of Mrs. Stickle, and. her check was thereupon drawn against it. It seems very clear that the whole fund was provided by John A. Stickle, and that his wife paid no portion of it whatever. In fact, it appears that she had no separate estate of her own excepting about $1,600, and that no portion of that went into the purchase of the farm.

Did a trust result in favor of the husband from the circumstances appearing in evidence? Ordinarily, it is presumed, that when a husband voluntarily transfers property to his wife he does it bjr way of gift or settlement. This, however, is a mere presumption and is rebuttable if facts exist sufficient for the purpose. In my opinion, the facts do exist, and the presumption is rebutted, and a resulting trust has been established in favor of the husband. It is very plain that on March 6th, 1901, when the agreement was made between John A. Stickle and his brothers, that John A. Stickle intended to become the purchaser and the owner of the farm. The agreement was with him and for his benefit, but inasmuch as he was one of the executors and had been advised that he could not appear in the transaction, the agreement provided that the property should be knocked off and sold to such person as the said John A. Stickle should designate. He did designate his wife. The property was struck off to her and the deed made to her. The delivery of the deed took place in the office of Mr. Angle, one of the solicitors of this court, and in his presence it was stated by Mrs. Stickle that while she was the purchaser of the farm she wanted to deed it to her husband; the making of the deeds to transfer the property . to the husband was talked over, and when they found it would require the preparation of two deeds, they put the matter off because of the limited time before them. His recollection is that they said it was getting late, that they had a long distance to drive, and that they would drop into his office some time when they came to Belvidere and have the deeds made later on; and he finally says that Mrs. Stickle told him that she came along with her husband on that day for the purpose of deeding the place back to him.

It is in evidence that Mrs. Martha Stickle stated to Laura M. Stickle, Martha Emmons, Maud Wildrick and Minnie Messier, respectively, at various times, that she had no money in the farm, that it all belonged to her husband, and that she intended to deed it to him. In addition to this is the testimony of Mr. Stickle himself, in which he sets out the conversation that took place between him and Iris wife on this point, to the effect that his wife agreed to convey the property to him whenever it became convenient to have the proper conveyances prepared.

• This view of the case entities the defendant John A. Stickle to the title to and possession of the premises in question, and disentitles the complainants to a partition as prayed by the original bill. It likewise makes it unnecessary to consider the questions concerning the birth of the child, and whether it was born alive or dead. The decree will therefore dismiss the original bill and provide that the heirs-at-law of the said Martha Stickle hold the said lands and premises in trust for the defendant John A. Stickle, and that they execute a proper deed or deeds of conveyance to the said John A. Stickle in accordance with the prayer of his bill.

Under the peculiar circumstances of this'case, I.do not think that either party should recover costs or counsel fees against the other.


text:
    Daniel B. McCartie, executor, &c., v. John Murphy et al.
    [Decided March 30th, 1914.]
    1. When an executor has settled his accounts in the orphans court and obtained a final decree fixing the amount of assets in his hands, and a person living in a foreign country beyond tbe seas makes claim that he is next of kiu of the decedent, and filed a petition in that court praying that the whole estate be awarded to him as such, and the fund in the executor’s hands is likewise claimed by a municipality on behalf of the department of the poor and alms, a bill is maintainable in this court by the executor for the purpose of withdrawing the litigation over the distribution of the estate into this court, where such bill sets forth the rival claims to the fund, and, among other things, prays for a discovery by the claimant of the means whereby he claims to be next of kin of the decedent, and the names and addresses of the persons by, through and under whom he claims to occupy that relation to her.
    2. This court has concurrent jurisdiction with the orphans court of all matters pertaining to the administration and settlement of estates of decedents. But after a proceeding has begun in the orphans court, this court will not disturb it in its jurisdiction unless there exists some equitable reason why it should do so. In this case the reasons urged are the opposing claims above mentioned, and the necessity of a discovery from the claimant of the facts relating to his position as next of kin.
    3. It is manifest that the statement of the complainant executor, that he has been unable to ascertain or determine whether the claimant is entitled to the place of next of kin of the decedent and has no means of ascertaining the truth of his claim, shows that the complainant must have the aid of this court to procure such evidence as may be necessary properly to make a defence to the claim, if a defence shall be made, or to investigate it and find out whether it is a true or false one.
    On motion for preliminary injunction.

      Mr. William A. Smith, for the motion.

      Mr. Frederick M. Pearse, contra.

   Howell, Y. C.

The bill alleged that Catherine Wright died on January 3d, 1906, in this state, where she was domiciled, leaving a last will and testament by which she gave her whole estate to her son John, and appointed the complainant executor thereof. John Wright, the legatee, died about a month before the testatrix, leaving no issue. The will was admitted to probate by the surrogate of Essex county in 1906, and. the executor has recently settled his accounts in the orphans court and obtained a final decree fixing the amount of assets in his hands at $5,511.72, Recently one James Murphy, of Ireland, made claim that he was next of kin to the deceased and filed a petition in the orphans court praying that the whole estate be awarded to him as such. The fund in his hands is likewise claimed by the mayor and common council of the city of Newark on behalf of the department of poor and alms. The executor now files his bill for the purpose of withdrawing the litigation over the distribution of the estate into the court of chancery, and sets out the rival claims to the fund, and, among other things, prays for a discovery by the claimant, Murphy, of the means whereby he claims to be the next of kin of the decedent, and the names and addresses of the persons by, through and under whom he claims to occupy that relation to her.

This court has concurrent jurisdiction with the orphans court of all matters pertaining to the administration and settlement of the estates of decedents. Van Mater v. Sickler, 9 N. J. Eq. 483; Frey v. Demarest, 16 N. J. Eq. 236; Search v. Search, 27 N. J. Eq. 137. But after a proceeding has been begun in -the orphans court this court will not disturb it in its jurisdiction unless there exists some good, equitable reason why it should do so. In this case the reasons urged are the opposing claims above mentioned, and the necessity _ of a discovery from the claimant, Murphy, of the facts relating to his position as alleged next of kin. The jurisdiction in Frey v. Demorest was sustained largely on the necessity of discovery. And such is the ease here; the complainant, who is the custodian of the fund, and therefore acting in a fiduciary capacity on behalf of all persons interested, states that he has been unable to ascertain or determine whether the said Murphy is entitled to the place of next of kin of the deceased, and has no means of ascertaining the truth of his claim. It is therefore quite manifest that the complainant must have the aid of this court to procure such evidence as may be necessary to properly make a defence to the claim if a defence shall be made, or to investigate it and find out whether it is a true or a false one.

Upon these grounds I think that the injunction should issue, and I will advise an order to that effect.


author: I-Iowell, V. C.'

text:
    Mignonette Marvin Riker v. Samuel McDonough Riker.
    [Decided April 8th, 1914.]
    1. Evidence, in a suit brought by a wife against her husband to recover money which she claimed to have loaned and advanced to him, held to show that she was entitled to relief, and that he should account to her for the principal so advanced to him by her.
    2. There being no evidence that the husband at any time promised to pay interest, she is not entitled thereto, the rule being that as between husband and wife, interest is not allowable during the continuance of tíie marriage relation unless it was specially stipulated for.
    On final hearing.

      Mr. Ghauncey Q. Parker, for the complainant.

      Mr. Joseph Gouli, Jr., for the defendant.
   I-Iowell, V. C.'

This suit is brought by a wife against her husband to recover two sums of money which she claims to have loaned and advanced to him, the first being a sum of $600 advanced on April 26th, 1905, and the second being the sum of $350 advanced on February 13th, 1906. She claims that, these advances were loans, while the husband claims that the money was placed in his hands for the purpose of being invested in stock of a corporation to be organized and known, as stated in his answer, as The Eagle Leather Goods Company. The only witnesses to the transaction are the parties to the controversy, and they alone are interested. The rights of creditors have not intervened. It was held by the court of errors and appeals in Cole v. Lee, 45 N. J. Eq. 779, to be well settled that on proof that a husband has received his wife’s money a court of equity will compel him and his representatives to account to her at least for the principal received; and that they can only discharge themselves by showing that the husband disposed of the money according to the wife’s directions, or that it was a gift to him. This presumption is against the husband, and casts upon him the burden of proving his defence-by a preponderance of testimony. This I do not think he has done. The very first step in the transaction seems to me a very unusual one. He obtained the first amount ($600) from his wife in April, 1905; he placed it to his own credit in his own bank account, and thus immediately put that part of it beyond the control of his wife. He used some portion of it for his own business and his own purposes, and did not attempt to use it for the purpose for which he claimed his wife advanced it to him until February of the following year, when he organized a partnership consisting of himself and another person and turned the money over to this partnership, which then went by the name of The Eagle Boot and Pad Company. This partnership continued until July of that year, but with a change of name to The Eagle Leather Goods Company; and in July the corporation was formed also bearing that name. If it had been the purpose of the wife to invest her money in that corporation the story of the husband is absurd. There does not appear to have been any well settled determination in bis mind at the time the first amount was advanced as to the organization of the new business, and so far as the evidence shows there was no step taken in that direction for eight or ten months. If this story is true there was no reason why the money should have been put in the bank account in April, 1905, for the purpose of starting a corporation in July, 1906. There seems to be no doubt but that the money, or the greater part of it, went into the new business, and it may have gone there with the knowledge of the wife. I say this, because there are some absurdities in her story which do not leave the evidence on her side free from difficulties.

In order to bolster up his side of the case the husband pro-' duces a certificate of stock issued by The Eagle Leather Goods Company marked Ho. 1 for forty-two and one-half shares standing in his name and issued on July 2d, 1906, the date of the organization of the corporation. He says that this represents the wife’s advances. However, the certificate stands in his name; it never was in her name; it was never presented to her;. nor is it clear that it was ever seen by her; neither could he by any mathematics that he could think of explain how her $950 could be represented by forty-two and one-half shares of the capital stock of the above-mentioned corporation at a par value of $100 per share.

I am therefore of opinion that the husband should account to the wife for the principal of the money so advanced to him by her.

In addition to the principal the wife demands the payment of interest. An examination of the testimony will disclose that there was a total omission of evidence tending to show that the husband at any time promised to pay interest. Ordinarily I understand the rule to be that as between husband and wife interest is not allowable during the continuance of the marriage relation unless it was specially stipulated for. This seems to be the idea of Vice-Chancellor Pitney in Collins v. Babbitt, 67 N. J. Eq. 165.

The decree will therefore provide for the payment of the principal sum, without interest to the date of the decree.


author: Hovvbli,, Y. O.

text:
    In the matter of the application of Grace R. Riva for leave to convey, mortgage or lease real property.
    [Decided May 6th, 1914.]
    1. Where it appeared at a hearing upon an application by a married woman for permission to sell her property under P. L. 1889 p. 43 (3 Oomp. Stat. 1910 p. 3830), authorizing the court of chancery to permit such sale where the wife is living separate from her husband ahd he neglects or refuses to support her, that the husband was willing to support the wife if she would return to him, and that there were children of the marriage, so that the husband would be entitled to curtesy if he survived the wife, the chancellor, in the exercise of the discretion granted him under the statute, will refuse to grant the permission in view of the questions raised thereby, whether the sale by the wife would cut off the husband’s right of curtesy, and whether the order of the chancellor in the special proceedings would be res judicata in subsequent action by the husband or the heirs, which questions would materially affect the marketability of the title and prevent its sale for a fair value.
    2. At common law the husband was entitled to the possession of his wife’s realty during their joint lives, with remainder to the husband for life if he survived the wife, and there was a child of the marriage, and a further remainder to the heirs of the wife in fee-simple.
    On petition for leave to convey land.

      Mr. Kinsley Twining, for the petitioner.

      Mr. George S. Silzer, for the respondent.
   Hovvbli,, Y. O.

This is a proceeding instituted by a married woman praying that she may have leave to convey, mortgage or lease her real property under the authority of chapter 28, laws of 1889. Gomp. Stat. p. S2S0. She was married to her present husband on April 26th, 1893, and immediately thereafter made her home with her husband at Mill town, in Middlesex county. They lived there together until 1908, when they moved to New Brunswick, and there lived in a house belonging to the petitioner. The petitioner1 left her husband on May 17th, 1912, and went to Spring Lake, where she resided until some time in 1913; she' then went to New York City, where she now lives. The two children of the marriage, both girls, have remained with her. .

The respondent is a physician; he was practicing his profession in New Brunswick at the time the petitioner left him, and had his office in the basement of the house in which they lived.' Since she left him he has returned to Milltown and is now practicing there; and the petitioner soon after the separation sold the house in New Brunswick in which they had lived. In 1911, the petitioner became entitled to a substantial share in a large fortune under the wills of her father and mother, so that it was not necessary for her to rely upon her husband for the support of herself and the children.

She now applies to the court for an order that she may sell, convey, mortgage or lease any interest, estate or right that she majr have in certain of her New Jersey real property particularly described in the petition in the same manner and with like effect as if she were sole and unmarried; she alleges that the property came to her from her mother, and not from her husband; that she was living in a state of separation from him, and that he “neglects and refuses to maintain and support your petitioner.” On the filing of the petition an order was made requiring the husband to appear and show cause why its prayer should not be granted. On an adjourned day the husband appeared and proofs were adduced orally before the court, the only witnesses being the petitioner and the respondent. The defence or objection to the relief sought, which was interposed by the respondent, was that he did not neglect and refuse to maintain and support the petitioner. It was admitted that the property in question came to the petitioner from her mother, and that she and the respondent were living in a state of separation, leaving open only the question of his neglect and refusal to maintain and support her.

The statute in question was before Vice-Chancellor Stevenson in a similar application (In re Staheli, 78 N. J. Eq. 74), in which he advised a decree on the ground that the husband neglected and refused to support the wife while they were separated from each other, holding that it made no difference whose fault brought about the separation, and that a decree should be made in view of the husband’s refusal and neglect to support the wife. The situation here is somewhat different. While the wife separated herself from her husband (for whose fault it makes no difference), and while the husband is not actually furnishing support and maintenance to the wife, yet he alleges that he is willing to support her to the best of his ability, provided she will return to his home and live with him. These facts raise the question whether it is contemplated by the statute that a married woman may abandon her home and claim relief under this statute upon the ground of non-support in a case where the husband is willing to support her.

It is provided by the Married Woman’s act of 1874 (Gomf. Slat. 32-37 § IJ) that nothing contained in the act should enable a married woman to convey or encumber her lands without her husband joining as heretofore, except in those instances for which express provision was made in that act, and that no conveyance, deed, contract or act of such married woman, or any judgment or decree against her should in any respect impair or affect the right of the husband in her land as tenant by the curtesy after her death. The act under which this proceeding is taken was passed in 1878, and was amended to its present form in 1889. The parties to this controversy Avere married in 1893, after both of these acts had gone into operation.

Has the husband a tenancy by curtesy initiate, and if such right exists may a married woman sell her land free from the right of the husband, or must it be subject to his right? This is another of the questions in the case. While it is not raised by the petition or by the defence at the hearing, it does appear upon consideration of the merits of the case, and if there is a substantial doubt about Avliat interest the Avife has the right to convey under this statute of 1889, or if the court should be of opinion that the husband has a right in the premises, it should hesitate before making a decree which might have the effect of casting doubt upon the title. Not only would this affect the marketability of the title in the near and in the distant future, but it Avould likeAvise seriously affect the present market value of the land for purposes of sale or exchange.

The act of 1889 appears to have been passed for the benefit of a married Avoman udio, first, owns real property in this state, and second, is living in a state of separation from her husband, and third, Avhose husband neglects and refuses to maintain and support her. It gives her authority to apply by petition to this court seeking a decree that during the separation, neglect and refusal to support her she may sell, convey, mortgage or lease any interest, estate or right that she may have in such real property. The act then provides for notice of application to the husband, and finally empoivers the court, upon satisfactory proof that the wife is living separate and apart from her husband, and that he neglects and refuses to support and maintain her, to authorize her to sell, convey, mortgage and lease any interest, estate or right that she may have in such real property, except such as came to her by gift through or from her husband in the same manner and with the like effect as if she were sole and unmarried. The act then provides that any sale, conveyance, mortgage or lease by her of any interest, estate or right which she may have in such real property made in pursuance of such decree shall pass any and all such interest, estate or right as she might have in such real property except such as came to her from her husband in the same manner and with the like effect as if she were sole and unmarried.

The act permits the court, but docs not require it, to make an order under certain circumstances that she may sell, convey, mortgage and lease any interest, estate or right that she may have in such real property, using words which are entirely con-, sonant with the idea of conveying an interest less than a fee, or an interest which would consist of a fee subject to an encumbrance.

The question then arises whether the act of 1889 repeals to any extent whatever the provisions of the section of the Married Woman’s act of 1871 above quoted. It certainly does not do so in terms. Tf it can be held to operate as a repealer it must be by implication only. The two acts deal with the same legal situation and are therefore in pari materia, and' unless there is either an express or implied repealer they must stand together as component parts of our system of jurisprudence. Walker v. Freeholders, 32 N. J. Law 348; affirmed, 83 N. J. Law 695; Freeholders v. Essex County Park Commission, 62 N. J. Law 376. They seem to me to occupy this position, and if they do, then the utmost that this court could do in authorizing a sale bjr the married woman would be to authorize the sale of her interest, estate or right, subject to the interest, estate or right of her husband.

Now, what is the extent of the right of the husband in this property, the title to which stands in the name of the wife? From the case of Doremus v. Paterson, 69 N. J. Eq. 194,and the case of Leach v. Leach, 69 N. J. Eq. 620, I deduce the rule to he as follows: At common law, upon a marriage, the husband became entitled to the possession of the wife’s realty during their joint lives, with remainder to the husband for his life if he survived her, and there was a child of the marriage, with a further remainder to the heirs of the wife in fee-simple. These cases hold that the only effect of our Married Woman’s act of 1874 upon this situation is to abolish the right of the husband to the possession of the wife’s lands during their joint lives, and that it does not abolish the estate of tenancy by the curtesy initiate. Applying this rule to the ease in hand we find — first, an estate for life in the wife during the joint 'lives of the husband and wife; second, an estate for life in the husband if he survives the wife, and there is a child of the marriage; third, with remainder in fee to the heirs-at-law of the wife. There appears to be a substantial estate in the husband, the existence of which -casts such a cloud upon the estate of the wife as to make it extremely undesirable to make sale of the land because of the largely reduced price that would be offered for her interest under the circumstances. This marks a wide difference from the Staiheli Case. The report shows that there were no children in that case, nor any likelihood of any; hence, the husband had not and could not get any interest in the wife’s lands.

Another reason why the court should hesitate about making the order lies in the fact that the proceeding is anomalous and is not in accordance with the regular rules of equity procedure. It is true that notic-e of the application of the wife must be given to the husband, but there is no requirement that he shall answer and thus make an issue to lie tried, nor is there any method of trial prescribed. The case of Staheli, 78 N. J. Eq. 74, was heard on affidavits and depositions. Tí a decree should be made according to this practice, what would be its status in an action of ejectment instituted by the husband years hence, after the death of the wife had made him a claimant for the curtesy? Would it be res judicata, or would all the questions be open for reinvestigation and resettlement? Certainly the question as to whether the husband had acquired an estate by the curtesy consummate would he an open one. Or suppose that years lienee the heir-at-law of the wife should bring ejectment, against the bolder of the legal title upon the ground that there had been no conveyance because the husband’s consent thereto had not been obtained, would the fact that the conveyance had originally received the sanction of this court be any defence in case the common law courts should hold that the act in question did not repeal the section of the Married Woman’s act of 1874 above referred to? I think not; and I am constrained therefore to the conclusion that tire thing which the wife now wants done would be dangerous to all concerned. The act by its terms submits the whole question to the sound judicial discretion of the court. The manned woman gets no absolute right to a decree. The court within its limits of discretion may make the decree or not; as such discretion dictates.

I am of the opinion that the relief should be denied and tire petition dismissed; and I will so advise.


author: Lewis, V. C.

text:
    Lillian M. Keneaster v. William Erb et al. William Erb et al. v. Lillian M. Keneaster and Matilda T. Landis.
    [Decided February 27th, 1914.].
    1. In a suit by a trustee to quiet title, the eestuis que trustent were not necessary parties.
    2. Where the owner of an undivided interest in land conveyed it by a deed purporting to convey an absolute title, the grantee acquired only such undivided interest notwithstanding the grantor’s warranty, and another co-tenant could therefore maintain a suit for partition.

      3. Where complainant's co-tenant conveyed a portion of the land owned in common to defendant, defendant in a suit against him for partition of the land so conveyed could not maintain a cross-bill to partition all of the land, owned in common by his grantor and complainant.
    On bill for partition. On final hearing on pleadings and proofs.

      Messrs. Bourgeois ct- Coulomb, for the complainant.

      Mr. Charles K. Landis, Jr., for the defendants.
   Lewis, V. C.

Richard T. Smith, at the time of his death, was seized in fee-simple of an undivided share in a large tract of land situate within the bounds of which is now Sea Isle City. He died about October 4th, 1901, and the complainant, by inheritance, became seized in fee-simple of an undivided five three hundred and ninety-seconds part of the whole of the lands mentioned, and about the year 1903 the entire right, title and interest in and to the lands above mentioned, excepting the interest of the complainant, became vested by purchase in Matilda Landis.

In the year 1905, Matilda Landis, alleging herself to be seized in fee-simple of the entire tract of land and premises aforesaid, filed her bill in this court to quiet her alleged title against the claim of the complainant’s undivided interest aforesaid, and a decree was made in this court in, favor of the complainant in this cause, and decreeing that as to said undivided interest her title was fixed and determined.

This decree was made September 24th, 1907. notwithstanding this decree, however, on the 22d day of April, 1908, Matilda Landis conveyed, by deed, in fee, a part of the above-mentioned tract of land, including the lot involved in this partition suit, to one Edgar S. Ale. Ale conveyed the same tract to the Sea Isle City Realty Company, which company plotted it into lots, and on the 3d day of August, 1909, sold the lots involved in this partition suit to the defendant Erb.

After the bill had been filed originally for the partition of the land in question, Matilda Landis made a motion to compel the complainant to include in the bill of complaint all the lands, the title to which was settled by the decree in the suit to quiet title brought by Matilda Landis against Lillian M. Keneaster, and also to include Matilda T. Landis, executrix, as a party defendant. The motion was defended upon the ground that the land in the bill was all of the land held by the defendant Erb, and Mrs. Keneaster, as tenants in common; that Erb had no interest in any other land than that described in the bill of complaint, and Matilda T. Landis had no interest in the land described in the bill of complaint. This motion was heard before Chancellor Pitney, who filed an opinion that “if the grounds upon which this motion was based are well taken, the defendant can obtain the benefit of them by a cross-bill.”

• After the decree was entered on the above opinion, the defendant Erb filled an answer and cross-bill, making Matilda T. Landis a party to the cross-bill, and bringing into the case all of the land owned by Matilda T. Landis, but not bringing in the land sold by Matilda T. Landis to Edgar S. Ale, and by Edgar S. Ale to the Sea Isle City Realty Company.

A motion was made to strike out this cross-bill because it did not include all of the land in which the complainant, Keneaster, had an interest. The motion was refused because it did not appear from the pleadings 'that there was any land other than that contained in the bill and cross-bill. In other words, it was a question of fact whether or not all of the land was included, and therefore the question cannot be solved .upon a preliminary motion.

Upon the overruling of the complainant’s motion to strike out this cross-bill, the complainant filed her answer to the cross-bill setting up the same defences.

When the case came on for trial, the testimony showed, first, that the original tract of land was approximately five hundred acres; that the portion of it sold to Edgar S. Ale and by Edgar S. Ale to the Sea Isle City Realty Company, a portion of which was sold by the realty company to defendant Erb, consisted of approximately one hundred acres.

The defendant Erb seeks to have the whole proceedings dismissed, upon the ground that the decree in the suit to quiet title -was improperly entered because Miss Landis was trustee, and the cestuis que trustent were not made parties to that proceeding.

My conclusion as to that is, that they were not necessary parties. Sweet v. Parker, 22 N. J. Eq. 456; New Jersey Franklinite Co. v. Ames, 12 N. J. Eq. 507.

The defendants also claim that the complainant has no right to a partition oL! the land held hy Mr. Erb becanse Mr. Erb’s title is not that of a co-tenant, but that be had an absolute title to the. lands in question, and because the deed did not express that he held any co-tenancy, or that he got an undivided interest.

It is my opinion that Matilda Landis could only convey what she had; she only had an undivided interest, and she conveyed the whole of her interest in that particular portion of the land, and she has no further interest in the land conveyed to Erb, and whatever obligation she may be chargeable with upon her warranty would not change the situation with respect to Mrs. Kcneaster’s interest in the property.

1 have decided that the defendant who filed the cross-bill to partition the four hundred acres lias no standing to bring a partition suit before the court of chancery, having himself no ownership in that portion of the property, and, therefore, by an order, the cross-bill be dismissed.

My conclusion is, that the original complainant had standing before the court to require a partition of -the property mentioned in the original bill, and that such partition should be made; and the testimony having shown that the land is incapable of partition, that a sale o£ the land should he máde, and upon application of counsel an order of sale can be made.


author: Lewis, Y. O.

text:
    David Noble Rowan et al., trustees et al., v. Frank L. Yarnall et al.
    [Decided May 11th, 1914.]
    A letter written by plaintiff in ejectment to the committee of a township and assessors, stating that the assessment of the land in controversy should be in the name of defendant’s grantor, was a disclaimer bt plaintiff of his own ownership.
    On bill, &e. On motion for a new trial.

      Messrs. Collins & Corbin, for the motion.

      Mr. John P. Lloycl, Mr. Prank P. McDermott and Mr. George 8. Silzer, contra.

   Lewis, Y. O.

TTnder the “Act to compel the determination of claims to real estate in certain cases and to quiet title to the same,” approved March 2d, 1870 {Gen. Stat. p. 31,86), George W. Eowan filed a bill in this court on July 5th, 1906, claiming- that he was in peaceable possession of the premises in question and that the defendants made some claim thereto, and prayed the court to determine the title thereto. This court adjudged that the complainant was in peaceable possession of the land involved^ —subdivisions 45, 46, 47 and 48, and the easterly two hundred and fifty feet of subdivision 49 on the map. (See the opinion of Vice-Chancellor Garrison in 79 N. J. Eg. 78.) On motion in behalf of the defendants this court ordered an issue at law to be framed as in an action of ejectment, with the Cliffwood Bride Company, a purdiaser pendente lile, as plaintiff, and the complainant as defendant. At the trial in the Middlesex circuit of the supreme court, before the circuit judge and a jury, the complainant (under direction of the court) recovered a verdict for said two hundred and fifty feet of subclivisioir 49, and the Cliffwood Brick Company recovered a verdict for the other subdivisions. Complainant successfully moved for a new trial.

After the new trial was ordered, the complainant died on the 16th day of February, 1911, having executed a deed of conveyance, bearing date the 12th day of November, a. d.' 1907, to David Noble Eowan (his father), George W. Eowan (himself) and Archibald H. Eowan, as trustees for George W. Eowan, Alice Eowan, Madge Rowan, Archibald H. Rowan and Jeanne L. Eowan, children of Margaret FI. Eowan. After the death of George 'W. Eowan, the present complainants were substituted as his successors. A new issue was framed as in ejectment, with the Cliffwood Brick Company as plaintiff, and the new complainants as defendants. The new trial was had at the April term, 1913, of the Middlesex circuit, before the circuit judge and a jury. Following the opinion of Vice-Chancellor Garrison, heretofore referred to, the trial judge directed a verdict in favor of the complainant as to subdivisions 47 and 48, and submitted the case to the jury as to the other parcels. The jury found as to those parcels in favor of the Cliffwood Brick Companjr, and the complainants now move for a new trial on the following grounds:

First. Admission of illegal evidence over objection of the defendants in the issue.

Second. Exclusion of legal evidence offered in behalf of the defendants in the issue.

Third. Failure to direct a verdict as to the whole or a part of the premises in question, in favor of the defendants in the issue.

Fourth. Refusal to charge the jury as requested, in behalf of the defendants in the issue.

Fifth. Misdirection of the jury.

Sixth. Verdict against the clear weight of. the evidence.

The facts are sufficiently stated in the opinion of Vice-Chancellor Garrison heretofore referred to.

Both parties claim under David Noble Rowan. Rowan and wife conveyed the farm, including subdivisions 45, 46, 47 and 48, to Thomas W. Moore on January 1st, 1875. Rowan claims, however, that this deed was never delivered to Moore and that it has always temained in his own possession, although he placed it on record in the county clerlr's office.

On October 1st, 1875, Rowan and wife conveyed, also, the easterly two hundred and fifty feet of subdivision 49 to Thomas W. Moore, taking back two mortgages, the first for three thousand four hundred and thirty dollars ($3,430), and the second for a like sum This deed, also, Rowan claims was never delivered.

Thomas W. Moore, in the year 1876, assumed to convey, with other proqserty, subdivisions 45, 46, 47 and 48, and the two hundred and fifty feet from the easterly side of subdivision 49, to his son, Elric L. Moore.

In 1881, Elric L. Moore conveyed to Margaret H. Rowan, wife of David Noble Rowan, the property conveyed to him, omitting the two hundred and fifty feet of subdivision 49, and excepting subdivisions 45 and 46.

Elric L. Moore gave a deed to Frank L. Yarnall on February 1st, 1905. Yice-Chancellor Garrison found that the descriptioir in this deed was too indefinite to convey anything, but he held that, because Elric L. Moore joined in a deed that was given pendente lite by Yarnall to the Cliffwood Brick Company, that company could sustain its claim of paper title to those subdivisions, although acquired pendente lite. The same consideration impelled him to declare a paper title in the Cliffwood Brick Company to the two hundred and fifty feet of subdivision 49, which was included in the deed so given pendente lite, and which, because acquired pendente lite, the circuit judge had at the first trial disregarded.

To summarize briefly: the evidence shows conclusively that the paper title to subdivisions 45, 46 and 49 is in the Cliffwood Brick Company, and the paper title to subdivisions 47 and 48 is in the Rowans.

The complainants allege that neither Thomas W. Moore nor his son, Elric L. Moore, ever had or took possession or occupied any part of the lands, and say that Rowan and his tenants or grantees, other than Moore, or either of them, were never out of possession of said lands, or any part thereof, in controversy.

The complainants claim title because, they-allege, the deed's purporting to convey the subdivisions in controversy, were never delivered; they also claim title because of adverse possession for more than twenty 3rears; and with regard to the two hundred and fifty feet of subdivision 49, at least, as to which the complainants make the same claim, they also claim as mortgagees in possession.

In order to simplify matters, the court below submitted the following questions to the jury, and to which they were to reply merely “Yes” or “No”:

First: (as to lot number 49) Are the defendants mortgagees in possession ? The answer of the jury to that was “No.”

Second: (as to lots numbers 45 and 46) Was the deed from Thomas W. Moore and wife to Elric L. Moore, dated February 17th, 1876, ever delivered? The answer of the jury to that question was “Yes.”

Third: Have the defendants proved title by adverse possession to lots 45', 46 and 49 ? The answer to that question by the jury was “No.”

On October 31st, 1888, David Noble Rowan wrote to the committee of the township of Madison, New Jersey, and assessors on the subject of the proper assessment of certain properties, among them being subdivisions 45 and 46, as to which he said that the assessment should be in the name of E. Moore. This is a disclaimer of his own ownership. This certainly does not agree with his present contention.

In regard to lots 45 and 46, the onty question involved on both trials was adverse possession. Adverse possession as to lot 49 was also involved in the last trial. The testimony adduced to prove adverse possession applied to all three lots, and the verdict of the jury on the question of adverse possession was found against the complainants.

The claim of adverse possession depends entirely upon the testimony of the elder Rowan, a lawyer by profession, and apparently a man of considerable ability. However, two juries have refused to believe him.

In regard to the portion of lot 49, I am not satisfied by the evidence that David Foble Rowan was ever in possession of it as mortgagee. He says on page 298 of the testimony, that he held a mortgage and never went out of possession.

The motion for a new trial will, therefore, be denied.


author: Bacices, Y. C.

text:
    Wilburt Epley v. Luella Epley.
    [Argued February 3d, 1914.
    Decided February 5th, 1914.]
    1. Dhe rule that a divorce for defendant’s adultery will be refused if the petitioner has been guilty of willful, continued and obstinate desertion for two years next before the filing of the petition, would not apply to make petitioner guilty of desertion for failing to take the defendant back after receiving a letter asking him to do so if two years had not elapsed between the receipt of the letter and the beginning of the action.
    2. Where a wife had frequently deserted her husband, it cannot be assumed that the husband’s failure immediately to become reconciled upon his wife’s offer to return after leaving him, was a willful desertion by him.
    3. Rapp v. Rapp, 67 N. J. Eq. 236, distinguished.
    On petition for divorce. On exceptions to master’s report.

      Messrs. Scovel & 'JJarding, for the exceptant.
   Bacices, Y. C.

The ehaxge of adultery alleged in the petition is established. The defendant deserted the petitioner in 1909 and during the separation she gave premature birth to a child in March of 3913. The master to whom the cause was referred advised against a decree of divorce, because it appeared from the testimony of the petitioner that in June of 1912 he received from his wife a letter asking him to take her back, which he failed to do. The master relying - upon Rapp v. Rapp, 67 N. J. Eq. 236, conceived this to be a bar against recovery. The difficulty with this view is that the facts presented do not create a situation to which the doctrine of the Rapp Case is applicable. The principle there laid down and illustrated by the authorities therein cited, is, that to bar a right to divorce for the defendant’s adultery, because of a previous desertion by the petitioner, the desertion must have been willful, continued and obstinate for a period of two years next before the filing of the petition. The recriminatory act must be of such’ a character which, if standing alone, would itself afford a ground for divorce. The two years did not elapse between the time of the receipt of the letter and the beginning of this suit.

Purthermore, it appears that the defendant was a chronic deserter, and it is not to be assumed that the husband’s failure to become reconciled immediately upon his wife’s offer to return, constituted a willful desertion on his part. The termination of the wife’s desertion, and the beginning of the husband’s would in a large measure depend upon a consideration of her good faith in making the offer. See also Freeman v. Freeman, 82 N. J. Eq. 360.

The exception is sustained and a divorce will be granted.