author: Beasley, C. J.

text:
    Orlando Perrine, appellant, v. The Broadway Bank of Brooklyn, respondent.
    1. Tlie regular way of serving an order on file in tlie court of cliancery is. by leaving with the party a copy thereof, certified by the clerk.
    2. A party will not be in contempt by a refusal to obey an order not so. served, unless it has been served in accordance with a special order of the chancellor,

      On appeal from an order, in Broadway Bank v. Perrine, advised by Vice-Chancellor Van Fleet, who delivered the following opinion:
    The facts on which the complainant relies to show that the defendants have willfully disobeyed the order of the court are not disputed. It is unnecessary, therefore, to consider whether or not the petition is properly verified.
    The subpoena in this case was served on the defendants on the 15th day of February, 1893, and returned on the 28th of the same month. The defendants have, therefore, been in court since February 28th last. The order requiring the defendants 'to appear before a master and make discovery was made on the -3d day of March last, and was filed on the 6th. On its being filed it became a part of the record in the case, and, for certain purposes, its filing operated as notice to the defendants.
    The question is, was the order served on the defendants in such manner as to make it their duty to obey it ? The proofs show that a certified copy was given to the sheriff for service, and that copies of that copy were served on the defendants by an undersheriff. It does not appear that the certified copy was shown to the defendants when service was made. I shall assume that it was not. The defendants did not appear before the master. They were advised by counsel that, as the copy of the order served on them was not authenticated in any way, nor a certified copy shown to them, they were not bound to obey it.
    I cannot concur in that view. On the contrary, I think that the defendants had sufficient notice of the order to make it their duty to obey it. The order is in the nature of a mandatory injunction. It commanded the defendants to appear before an officer of this court at a certain time and place. The rule is well settled that a defendant, who knows that an injunction has issued, is bound to obey it from the moment he receives notice, either oral or written, of its issue and its terms. An actual service is not necessary to put him in contempt for a breach of its command. The order in this case purported to have been made in a cause that the defendants knew was pending against them; they also knew that the complainant had asked by its bill that such an order might be made; the order was served on 'them by that officer of their county whose duty it is to serve the orders and processes of the superior courts. It is apparent, therefore, that there was nothing about the paper or the manner of its service to suggest a doubt of its authenticity. The defendants do not say that they doubted its authenticity. They undoubtedly believed it to be authentic. The least doubt on that point would have sent an inquiry at once to the clerk’s office, where the order had been on file for more than ten days. The case is one, therefore, where the defendants did not refuse to •obey because they believed no order had been made, but because they believed that, in consequence of a defective service, they ■could contemn it with impunity. Neither statute nor rule of practice prescribed any special form of authentication or mode of service for orders like the one under consideration. As a general rule, I think it may be safely said that when an order is made by a court requiring a party to a suit’pending before it to do or to refrain from doing a particular thing, all that is required to impose the duty of obedience is that the order shall come to his knowledge in such manner that he knows what he is required to do or to refrain from doing, and as would lead a man of ordinary good sense to believe that the court had made it. Both these conditions existed in this case. The copy served told the defendants plainly what they were required to do. They were bound to expect such an order would be made, and the official character of the person making the service furnished strong evidence of its authenticity. I think the defendants must be adjudged guilty of contempt. To hold otherwise would allow a defendant to contemn such, an order with impunity, though he had the most perfect knowledge that it had been made and also of its terms.
    The fact that the defendants acted under the advice of counsel, while it neither justifies nor excuses their disobedience, must receive consideration when the punishment is adjusted. Before •deciding what punishment shall be inflicted, I propose to give the defendants an opportunity to comply with the requirements of the order. If they will go before the master on Thursday, the 25th instant, at ten in the morning, and submit to an examination, as they should have done on the 29th day of. March last, that fact will be taken into consideration on Wednesday, May 31st, 1893, at ten in the morning, when the defendants. must appear in person before the court, at the chancery chamherein the city of Newark, to be punished for their contempt.

      Mr. Frank Bergen, for the appellant.

      Mr. John 8. Voorhees, for the respondent.
   Beasley, C. J.

On this appeal, but a single question is presented for solution..

The respondent having obtained a judgment, and an execution thereon having been returned unsatisfied, exhibited his bill in-the court of chancery to compel the discovery by the appellant, the judgment debtor, of his property. By force of the statute (Rev. p. 121 § 90) the chancellor thereupon made an order requiring the appellant to appear and make discovery, on oath,, concerning his property and things in action, before a master, at a time and place designated. Thereupon, a certified copy of this order was put in the hands of the sheriff for service, who,, through the medium of an undersheriff, served the appellant by leaving a true copy of the order with him, but without showing-.him the original or in any manner intimating that he had it in-his possession.

In this condition of things; the appellant, acting on the advice-of counsel, did not attend before the master as directed, and, because of such failure, was cited by the respondent to appear- and show cause before the vice-chancellor why he should not be-adjudged to be in contempt. Upon hearing he was declared to have been contumacious, and was accordingly fined. The present appeal brings before us this sentence. •

That the order in question was not served according to law, is not open to question. The practice on this head has been immemorially settled. The ancient and modern course of procedure-was and is as follows: Upon an order of this nature being signed, it is to be filed, aud a copy certified to as true by the clerk is then to be served on the party. These steps may, of course, be modified by the special direction of the chancellor, but in the absence of such substituted method the correct and only mode is that just stated. So far as is known, there has never been an approved departure from the rule.

•In the present instance this inveterate and simple course was not taken. A copy of the order, attested by the clerk, was sent to the officer, and, instead of leaving it with the appellant, he copied it and left such copy. The paper thus left was not certified to in any mode, nor did the officer exhibit the copy in his hands.

The ground upon -which the vice-chancellor concluded that the appellant had placed himself in a contumacious attitude with respect to the court, was that the circumstances showed that he had no reason to doubt, and did not doubt, the authenticity of the copy of the order that was left with him, and that therefore it was his duty to obey it. The doctrine is thus expounded: “As a general rule, I think it may be safely said that when an order is made by a court requiring a party to a suit pending before it to do or to refrain from doing a particular thing, all that is required to impose the duty of obedience is that the order shall come to his knowledge in such manner that he knows what he is required to do or to refrain from doing, and as would lead a man of ordinary good sense to believe that the court had made it.”

It is obvious that if such be the principle, then there is nothing like an established formula of practice in relation to these cases. The entire subject is in the air. Who can tell what will or will not be a sufficient service? The assurance of the lawyer of the party obtaining the order, that a paper purporting to be a transcript of the order, although entirely unauthenticated, would doubtless in most cases carry conviction of its genuineness. So unattested copies sent by mail would many times have the same effect. Under the prevalence of such a system the most deplorable laxity would soon prevail, and it is not therefore a matter of surprise that no authorities have been cited in its support. In the brief of counsel the service of orders of this nature are likened to the service of injunctions, and it is claimed that with respect to such procedures the rule propounded by the vice-chancellor has obtained. There can be no doubt that in certain junctures the usual rule requiring an exact service of injunctions has been relaxed; but such relaxations are applicable only to •that form of such writs whereby the party is prohibited from •pursuing a certain line of conduct; but such relaxations are the creatures of necessity, and therefore have no place in the regulating of mandatory injunctions. The expressions of judicial opinion on that subject in this state have all related to common (injunctions, that is, writs containing an order not to do a particular thing, or series of things; they mark out deflections from the ordinary path, and are obviously the creatures of necessity and should not transcend the limits of such necessity. In Harvey v. Kauffman, 2 Beas. 398, Chancellor Green, with characteristic precision and accuracy, defines the usual practice touching the service of this process. He says: “ To effect a regular service of an injunction, the writ itself, under the seal of the court, must be shown to the party against whom it issues, and a true copy thereof delivered to him.” He then proceeds to show that in cases where such formal service cannot be made the court will direct a different and less direct method of notification to be pursued. This is the English and American practice. Endicott v. Mathis, 1 Stock. 114; Railway Company v. Johnson, 8 Stew. Eq. 422; Ashborne v. Tenant, 14 Ves. 136; 2 Ves. & B. 348; Skip v. Harwood, 3 Atk. 563, 567.

It will be observed that in this class of cases the rule enforced is, that the court will not suffer anyone willfully to defeat its jurisdiction over the subject it has in hand. It treats as punishable any attempt to frustrate its authority. But outside of the scope of such a purpose the court will not dispense with the strict service of its writ. None of our own adjudications appear to have gone beyond this limit; none of them have held that a party will be in contempt by disobeying an injunction irregularly .served, when the subject of the writ has been left in statu quo, •so that the power of the court over it has not been impaired. It is obvious, therefore, that the rule in. question would seldom or ■ever regulate the practice touching mandatory injunctions.

The result is that even if the principles pertinent to injunctions were deemed to be applicable to the order now in question, the appellant could not properly have been put in contempt by his refusal to obey it, for such refusal could in no wise interfere with the jurisdiction of the court over its subject. The entire ■effect of such recusancy was to procrastinate the hearing for a few days.

Let the decree appealed from be reversed.

For reversal — The Chief-Justice, Lippincott, Mague, Reed, Van Syokel, Bogert, Krueger — 7.

For affirmance — Dixon, Garrison — 2.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Anna R. Ashton et al., appellants, v. George Wilkinson et al., executors of the will of John P. Wakeman, deceased, respondents.
    1. Interest upon a legacy commences to run wlien payment of the legacy is demandable.
    2. When no time is fixed in the will for the payment of a legacy, it is demandable one year after the death of the testator.
    3. If a legacy be payable after the happening of a contingency, it is demand-able when the contingency happens, after a year from the testator’s death.
    4. W., by his will, directed that his wife should have power to, by her will, appoint the distribution of a certain sum from his estate. The wife survived W. three years, and then died, leaving a will, by which she appointed the distribution of the sum provided by his will. — Held, that the will of W. not having fixed a time for the payment of the sum, the payment was demandable by the wife’s appointees immediately after the probate of her will.

      Mi'. George Holmes, with whom was Mr. Joseph A. Flannery (of New York), for the appellants.

      Mr. JR. Wayne Parker, for the respondents.
    On appeal from an order of the chancellor, who delivered the following opinion.
    John P. Wakeman died in December, 1891. In his will, admitted to probate in the same month, after directing the payment of his debts and funeral expenses, appointing executors and giving them power to sell his real estate and giving the income of the entire estate to his wife for her life, he conferred! this authority upon his wife:
    “I hereby also authorize my said wife to convey by will, in such manner- and for such purpose as she may deem best, the sum of fifty thousand dollars-of my estate, which sum of fifty thousand dollars is in lieu of dower.”
    Then he disposed of the residue of his estate to others.
    By a codicil to the will, he modified the provision for his wife by restricting the income she was to take to all the income from his estate, not exceeding $5,000, the excess over that sum to be capitalized and to go to the residue of the estate. He gave his-wife certain chattels and the use of a house for her life, the executors not to have power to sell that house, except with her-consent in writing.
    These provisions he declared to be in lieu of dower.
    Then he proceeded:

      “Fifth. The amount which my said will authorized my wife to convey by her will, is hereby reduced from fifty thousand dollars to thirty thousand-dollars.”
    Then he gave and bequeathed eleven legacies, aggregating $13,000, to be paid “ without interest within one year after the decease of my wife,” and made disposition of the residue of his estate to a number of persons named, share and share alike.

      Mrs. Wakeman died on the 3d of April, 1894. By her will, admitted to probate in the same month, she exercised the power given to her to appoint distributees of $30,000 of her husband’s estate, dividing the fund into several portions.
    She never had possession of the $30,000, and expressly styled her appointments of it as out of her husband’s estate.
    The appointees now claim that they are entitled to be paid interest upon the sums appointed to them respectively, from the date of the perfected appointment, that is, the probate of Mrs. Wakema.n’s will.
    In behalf of the takers of the residue of the estate of Mr. Wakeman, it is argued that the intent of Mr, Wakeman that all legacies out of his estate, paid within a year' from the death of ■his wife, should be paid without interest, is manifested in his will. Their reliance is upon the provision for the payment of the eleven legacies within a year from his wife’s death, without interest, the argument being that such provision indicates a purpose to give his executors time to realize from the investments made to serve his wife’s life estate before any distribution.
    I think that the provision demonstrates that the testator took into consideration the ability of his estate to presently, upon the probate of his wife’s will, meet the demands he had created ■against it, and in order to relieve it, postponed the payment of the eleven legacies, and, by implication, the distribution of the residue. But I cannot infer from this provision that he postponed the demands which the exercise of the power conferred npon his wife would occasion. The very fact of his expressly defining a postponement, after consideration of the convenience ■of his estate, appears to exclude any but the clearest implication of other postponement, for we should assume' that when he dealt with the subject of postponement he went as far as he intended to go. Indeed, for aught that appears to the contrary, it may ■have'been his intention to so provide that all demands should not come upon the executors at once. He may have thought that they could quickly realize from assets and pay the $30,000 to be given by his wife, and then, within the year, provide for the $13,000 he gave in pecuniary legacies, and later, after accounting, distribute the residue.
    The general rule is, that interest commences to run when the-legacy is demandable. Executors have a year after their testator’s death to ascertain and collect the assets and make payment of general legacies for the payment of which no time is fixed in the will. After that year the legacy is demandable, and, according to the general rule, interest then commences to run. Wms. Ex. 1424; 2 Redf. Wills 466. If the legacy be payable after the happening of a contingency, such as the death of a tenant for life, it is demandable when the contingency happens, after a year from the testator’s death. Laundy v. Williams, 2 P. Wms. 481; Bonham v. Bonham, 11 Stew. Eq. 419; Miller v. Phillips, 5 Paige 573.

    In the application of these rules in the present case, my attention has been arrested by the decision in Tatham v. Drummond,. 2 Hemm. & M. 262, where there wms a fund held by trustees-under a marriage settlement, subject to the wife’s power of appointment by will upon the happening of a certain contingency,, in which it wms held that the rule that interest did not run upon legacies until the expiration of one year from the death of the-testatrix, applied to the legacies she appointed out of the trust fund. It is suggested that the $30,000, over which Mrs. Wake-man had the power of appointment, was situated similarly to-this trust fund, and that, as in Tatham v. Drummond, a year from the death of the wife was allowed to the trustees, so here a year should be allowed to the executors of Mr. Wakeman from the death of Mrs. Wakeman.
    I think that case is distinguishable from this in the fact that there the question was as to the application of the rule that a year should be allowed for the payment, while here the question really is, not as to the application of that rule, but whether there-shall be an addition to it in the allowance of a second year.
    There the trust fund in substance stood as the wife’s owm property, the trust being the means by which it was held for her,, and the court considered that the existence of the trust should1 not defeat the application of the rule that one year is allowed for the payment of legacies, although the reason supporting the rule might not apply in its full vigor.
    In the present case the will of Mr. Wakeman contemplated a. fund of $30,000, which was to yield income during the wife’s-life, and be ready against the uncertainty of the time of her death and the contingency of her appointing its payment.. Because as strong reasons for granting a year after the wife’s-death as existed in Tathcm v. Drummond to justify the application of the rule that a year is to be allowed, appears, it is urged' another year should be given in this case. Mr. Wakeman’s executors have already had the benefit of the rule applied in Tatham v. Drummond. More than' a year has elapsed since his death, and all that time they have been facing the present emergency. Shall they be allowed a second year ? As has been seen,, it is not the rule to allow a second year where the legacy is payable upon the happening of' a contingency. . In do not find; either authority or sufficient reason to justify such an allowance.
    The appointees should receive interest upon the sums appointed’ to them, respectively, from the date of the probate of Mrs. Wake-man’s will to the dates of the payments of those several sums..
   Per Curiam.

Order affirmed for the reasons given by the chancellor.

For affirmance — The Chief-Justice, Dixon, Gummere;. Lippincott, Mag-ie, Reed, Van Syokel, Brown, Sims — 9.

For reversal — Hone.


text:
    William L. Glorieux et al., appellants, v. Alonzo Schwartz, respondent.
    1.. Judgment creditors cannot enjoin the sale of their debtors’ property-under void chattel mortgages in the absence of proof of levy of their executions on such property.

      2. A receipt of the sheriff for the amount of the sales of the goods in dispute by him is insufficient evidence of a levy on such property.
    3. Judgment creditors took bills of sale from the debtors of goods to secure the debtors against execution, and to secure to them the possession and use of such goods to enable them thereby to pay the judgments. The bills provided that, in case of default, the creditors might enforce the judgments by way of execution. — Held, that the creditors had no such right to the possession of the property as would enable them to enjoin the sale of the goods on void chattel mortgages given other creditors.
    4. Bills of sale which provide that the grantors shall continue in actual possession and use of the goods are void as to other creditors.
    On appeal from an order advised by Vice-Chancellor Bird, who delivered the following opinion :
    This is a conflict between the complainants and the defendant as to the priority of right to certain goods and chattels named in the pleadings. The complainants claim by virtue of certain judgments and executions and sale thereunder, and the defendant by virtue of two chattel mortgages. One of these mortgages is dated and recorded long before the judgments were obtained and the other afterwards. The complainants also claim by virtue of two bills of sale, which were executed intermediate the execution of the chattel mortgages. It is said that an imperfection in the jurat, which was taken before a notary public out of the state, renders both chattel mortgages illegal as against the complainants. The jurat and signature on one and all other additions are in these words and figures, “ Sworn and subscribed before me, at New York city, this 6th day of June, A. D. 1887, F. M. Haviland, notary public (201), city and county of New York (22 Park Place).” To which was affixed an impression usually called a seal, in these words, “ Frederick M. Haviland, notary public, New York.” And on the other in these words and figures, “Sworn and subscribed before me, at Carmel, N. Y., this 6th day of August, a. d. 1891, George E. Anderson, notary public.” To which is affixed an impression usually called a seal, in these words, “George E. Anderson, notary public, Putnam county, N. Y.” To this affidavit is affixed a certificate of the clerk of the county, 'that the said Anderson was a notary ■public in and for said county and State of New York, and duly authorized &c.
    The first inquiry necessarily is, have the complainants established such a lien upon the goods and chattels in question as will justify them in resisting the claim of the defendant upon his chattel mortgages, or either of them, on the ground of any defect in the proof or other statutory requirements? It is not sufficient to say that he obtained a judgment to acquire a lien upon personal property. It is essential that there should be an execution. jRev. p. 39% § 18. While it is alleged that there was execution and levies upon several judgments, there has been no proof whatever thereof. A paper was introduced in evidence purporting to be the receipt of the sheriff or undersheriff for the amount of the sales of the goods and chattels in question by him at the price of $1,600, but this is the only evidence, if it may sbe considered any evidence whatever, of any execution or any sales by any sheriff. Evidently no title could be passed in this manner, if nothing else appeared to support the claim thereto.
    It seems to me that the claims under the bills of sale give no better support to the complainants. The best interpretation that I can give to them is that they were prepared and executed with the sole design of securing the defendant in the judgments against an immediate execution of those judgments, or, in other words, to secure the defendant in such judgments, in the possession and use of the goods and chattels in question, in the hope ■or expectation of' their being able, by such use or possession, to pay off by installments the amount of said judgments. They •eannot be read as absolute bills of sale in any event or for any other purpose than as a transfer to the complainant of the said goods and chattels, as collateral security, for the payment of said judgments, if anything like so much can be said in that behalf, for it was expressly provided therein that in case of default or ■in case of other execution creditors attempting to enforce their claims, or other similar contingencies, then the complainants might enforce their judgments by way of execution. • It is true •that the language of the agreement is that they assign, transfer ■and set over unto the complainants the said goods and chattels, but, as above intimated, the only consideration or the real object was to give Haege and Butz the power, by use and possession of the goods, to pay and discharge the judgments, and of preserving as far as possible the rights of the complainants as judg • meut creditors to proceed under their judgments in case oí default.
    That this is the true interpretation of this paper, I think, would be determined if the complainants were to bring an action of trover or replevin against Haege and Butz. The application of this test would result in favor of the defendants, for, without taking other-steps, there is nothing to show that they are entitled to the immediate possession. They can only proceed under their judgments. Such test, however, would not show that the-agreements were void as between the parties thereto when the real object of them should be considered in the light of the interpretation above given to them, .which is that they were entered into for the relief and benefit of the judgment debtors, and also-in aid or support of the judgment creditors, and not that the judgment creditor should be permitted to take possession of the-goods without reference to his judgment and execution, but then only in case of the default mentioned in the agreements.
    As first above stated, it does not appear, by any legal or competent evidence, that any such executions were ever issued. Therefore, it will be seen that the complainants have no lien,, and consequently no standing in this court.
    It might also be well said that their claim under these bills of sale must give way to the claims of creditors, when considered in the light of the rules laid down in Twyne’s Case. The complainants, who now claim to be the vendees under such bills of sale, not only did not take possession, but they expressly provided that the vendors, if they may be so styled, should continue-in actual possession and use of the goods and chattels.
    If I am right in these conclusions, it is not necessary for me-to-inquire as to the validity or sufficiency of the jurat and certification thereto by the notaries in New York. This question can-only arise when the complainants have established a lien by-execution or otherwise upon the goods in question.

      I will advise that the injunction prayed for be denied, and that the bill be dismissed, with costs.

      Mr. Frederick T. Johnson and Mr. Samuel Kalisch, for the appellants.

      Mr. Thomas J. Keigharn and Mr. James Fleming, for the respondent.
   Per Curiam.

Order affirmed, for the reasons given in the court of chancery.

For affirmance — The Chief-Justice, Dixon, Gummere, Lippincott, Magie, Peed, Van Syokel, Bogert, Brown, Sims — 10.

For reversal — None.


text:
    William T. Bailey, appellant, r V. Catharine Schnitzius, respondent.
    1. Where water, whether coming from springs or rains or melting snows, has flowed over lands of the complainant in a well-defined channel for a period of time so long that the memory of man runneth not to the contrary, to and upon lands of an adjoining proprietor, the court will, by its mandatory injunction, require such adjoining proprietor to remove any obstruction placed upon his. lands to prevent such water from flowing to and over his lands.
    2. In such case it can make no difference whether such channel be natural or artificial. If the complainant, in order to improve his lands for agricul - tural or trade purposes, alters such channel upon his own land or increases the-volume or velocity of the water, the adjoining proprietor has no cause of complaint unless he can show that he has sustained material damagé thereby.
    Ou appeal from an order advised by Vice-Chancellor Bird,, who delivered the following opinion :

      Upon final hearing in this case, nothing has been developed in the testimony or in the argument of counsel to vary the important facts upon which my conclusions were founded at the hearing of the order to show cause why a preliminary mandatory injunction should not be issued. Schnitzius v. Bailey, 13 Stew. Eq. 247. Such an injunction was then advised. The cause was taken to the court of errors and appeals, and the order advising the injunction was reversed. Bailey v. Schnitzius, 18 Stew. Eq. 178. The only question then was whether a mandatory injunction should issue at that stage of the case or not.
    The ease 'as it then stood, and even more conclusively as it now stands, is within the reasoning of the well-considered case of Earl v. De Hart, 1 Beas. 281. The premises in the last-named case being city property and the premises in this case being farm land, there are considerations in this case which are important to advert to, because such considerations bring it also within the important cases of Peck v. Goodberlett, 12 Cent. L. J. 199; 109 N. Y. 180; and McCormick v. Horan, 81 N. Y 86. According to these cases it is good policy for courts to encourage the cultivation of the soil for agricultural and trade purposes. If the farmer can improve his land by changing the water-course thereon which passes from his land to and upon lands of lower proprietors, without substantial injury to such proprietors, he may do so.
    To this extent he may increase the volume or velocity thereof by surface or underdrainage. The lower proprietor has no right to complain unless he can show material injury.
    The testimony offered by the defendant in this case shows that the ditch or channel through which the water flows from the complainant’s land is from three to four feet wide, throughout the greater part of its length, and from two to three feet deep. It is insisted that this channel is an artificial one for the reason that if the water had taken its natural course it would have departed from the line of this ditch about half way across the field, and instead of pursuing 'a westerly course would have gone in a northwesterly course, crossing 'the lane and entering upon the land of defendant several hundred feet north from where the complainant insists it should and always has crossed the lane and entered upon defendant’s land. Prom the evidence, it cannot possibly make any material difference as to what the judgment of the court should be on this point; for if the ditch was opened or made by hand and not by the force of the water, it has been in existence so long that the memory of man runneth not to the-contrary, and will not be-interfered with.
    The same may be said of several of the underdrains.
    Clearly they have been in use for a very long period of time.. The complainant made additional drains. But all this work was-for the improvement of the land for agricultural purposes. There-is no proof that the volume or velocity of the water was in any wise increased.
    As the law stands, according to the cases above referred to, it is not in any sense material to determine whether the water spoken of in this case comes in part from springs or in the whole-from rains or melting snows.
    There is no doubt but that large portions of the thirty-acre tract named in complainant’s bill of complaint are so wet, marshy or spongy as to be unproductive, and that by clearing out that main ditch, and by opening the old underdrains, and putting in new ones, the natural wet condition of the soil has been so overcome as to enable the complainant to raise fair crops-thereon.
    I will advise that a mandatory injunction do issue according, to the prayer of the bill. The complainant is entitled to costs..

      Mr. John W. Weseott for the appellant.

      Mr. Thomas E. French for the respondent.
   Per Curiam.

Order affirmed, for the reasons given in the court of chancery.

For affirmance — Dixon, G-ummere, Lippincott, Magie,. Reed, Van Syckel, Bogart, Brown, Krueger, Sims — 10..

For reversal — Hone.


text:
    Edwin C. Swift et al., appellants, v. James N. Pidcock, respondent.
    On appeal from a decree advised by Vice-Chancellor Van Fleet, whose opinion is reported in Swift v. Pidcock, 6 Dick. Ch. Rep. 405.

      Mr. Frederic W. Stevens and Mr. Richard V. Lindabury, for 2the appellants.

      Mr. Louis Hood and Mr. J. Flavel McGee, for the respondent.
   Per Curiam.

Decree affirmed, for the reasons given in the court of chancery.

For affirmance — The Chief-Justice, Depue, Gummere, .Lippincott, Magie, Reed, Van Syckel, Bogert, Brown — 9.

For reversal — ISTone. .


text:
    Annie Schaefer et al., appellants, v. Catharine F. Dawson et al., respondents.
    On appeal from a decree of the chancellor, whose opinion is reported in Dawson v. Schaefer, 7 Dick. Ch. Rep. 341.

      Mr. Irwin W. Schultz, for the appellants.

      Mr. Sylvester C. Smith, for the respondents.
   Per Curiam.

Decree affirmed, for the reasons given by the chancellor.

For affirmance — The Chief-Justice, Gummere, Lippin-'C0tt, Magie, Eeed, Van Syckel, Bogert, Brown, Krue-ger — 9.

For reversal — Dixon, Sims — 2


text:
    Thomas Starkey et al., appellants, v. Elizabeth Fox et al., respondents.
    On appeal from a decree advised by Vice-Chancellor Green, whose opinion is reported in Starkey v. Fox, 7 Dick. Ch. Rep. 758.

      Mr. Theodore Little, for the appellants.

      Mr. Mahlon Pitney, for the respondents„
   Per Curiam.

Decree affirmed, for the reasons given in the court of chancery.

For affirmance — Dix'on, Gummere, Lippincott, Magie, Eeed, Van Syckel, Bogert, Brown, Krueger, Sims — 10.

For reversal — Hone.


author: The Chancellor.

text:
    Frederick Hemsley v. Richard Bew et al.
    Apprehension of irreparable injury, grounded upon theories which rest in conflicting and indeterminate evidence, will not justify the issuance of a preliminary injunction, especially where it appears that, by the denial of such injunction, adequate relief upon final hearing will not be defeated.
    On order to show cause why an injunction should not issue. Heard on bill and affidavits.

      Mr. John P. Stockton and Mr. Samuel E. Perry, for the complainant.

      Mr. David J. Pancoad and Mr. Clarence L. Cole, for the defendants.
   The Chancellor.

The complainant seeks an injunction to restrain the completion of a jetty or dyke which is to extend into the ocean, a few feet below low-water mark, in front of the defendants’ upland, at Atlantic City, and within the limits of a grant to the defendants by the riparian commissioners of this state, on the ground that the jetty or dyke will create a continuing nuisance which will work irreparable injury to him. The injury, he insists, will be caused by obstruction of the natural flow of the ocean tides and littoral currents, resulting in eddies and new currents which will wash away the beach in front of 1ns property adjacent to the jetty or dyke and undermine structures upon his land.

It is unnecessary, in the disposition of this motion, to decide the question, to some extent discussed by counsel, touching the complainant’s right under his riparian grant. Admitting, for the purposes of the motion, that the jetty constitutes a purpresture and public nuisance, it is borne in mind that the complainant may not invoke the interposition of this court unless he suffers or will suffer some private and material damage from the nuisance, distinct from that which is suffered by the public at large. By his bill he recognizes this well-established rule.

In equity procedure it is also settled that an injunction to restrain a nuisance will issue only in cases where the fact of nuisance is made out upon determinate and satisfactory evidence. If the evidence be conflicting and the injury be doubtful, that conflict and doubt will be a ground for withholding injunction. Aud where interposition by injunction is sought to restrain that which it is apprehended will create a nuisance of which the complainant may complain, the proofs must show an apprehension of material and irreparable injury well grounded upon such a state of facts as will manifest the danger to be real and itrnnediate. Newark Aqueduct Board v. Passaic, 18 Stew. Eq. 393, 402.

I have carefully examined the testimony which has been taken in this matter, and find that it, at least, is conflicting, and, as well, indeterminate, that the complainant has well-grounded ■apprehension of such injury as he may ask to have avoided by this court. That the jetty or dyke will affect the beach about it, is conceded by all witnesses, but precisely how it will affect ■the property of the complainant, whether injuriously or beneficially, or materially one way or the other, is problematical.

It does not appear that denial of the present application will deprive the court of ability to afford him relief at final hearing, if time or further proofs shall verify the theories upon which his present apprehension of damage is largely grounded, and hence the doubt I now entertain as to the essential fact — special injury must defeat the present application. Connelly Manufactring Co. v. Wattles, 4 Dick. Ch. Rep. 97; Citizens’ Coach Co. v. Camden Horse Railroad Co., 2 Stew. Eq. 299; Stitt v. Hilton, 4 Stew. Eq. 285; Delaware, Lackawanna and Western Railroad Co. v. Central Stock Yard and Transit Co., 16 Stew. Eq. 605; Haggerty v. Lee, 18 Stew. Eq. 255; Newark Aqueduct Board v. Passaic, 1 Dick. Ch. Rep. 553.

The order to show cause will be discharged..


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    Abraham Freedman v. Anton Sandknop et al.
    Where a house is built by contract, and it is necessary to refer to the specifi- cations to ascertain what part of the labor is to be performed, or what materials are to be furnished by the contractor, the specifications should be filed with the contract, but if the contract provides that the contractor shall do all the work, and furnish all the materials, it is not necessai-y to file the specifications.

      On motion to dissolve injunction. Heard on bill, answers and copy of contract, used at the argument by consent of counsel.,

      Mr. George P. Bust and Mr. Thomas M. Moore, for .the-motion.

      Mr. William W. Watson, contra.

   The Chancellor.

It appears, by the bill, that the complainant entered into a contract in writing with the defendant Sandknop, in April,. 1894, by which the latter became bound to well and sufficiently erect and finish the new building to be erected ” on Dayton avenue, in the city of Passaic, “ agreeably to the drawings and specifications made by C; ICevitt,” and to “ find and provide such good,.proper and sufficient materials of all kinds whatsoever as ” should “ be proper and sufficient for the completing and finishing all the plumbing, carpentering, mason, painting, tinning and other •works of said building mentioned in the specifications.” The contract contained further provisions, among others, that in case-the health authorities of the city of Passaic should compel changes- or alterations in the plans, specifications, or any work which should be done in and about the erection of the building, that Sandknop would make all such alterations and changes at lfisown expense, and that if at any time during the progress of the work the complainant should request any alterations of, or addi- • tions to, or omissions from, the contract, they were not to affect or make the contract void, but were to be added to or deducted from its amount, as the case might be, by a fair and reasonable valuation.

Several persons furnished labor and material to Sandknop,. during the erection of the building, for which they subsequently demanded payment from the complainant, and for which they now threaten to claim liens upon the building. These claims-aggregate, in amount, about $1,800, while the entire sum remaining due to Sandknop is about $1,250.

Assuming that the contract protects him from lien claims, the •complainant has paid the $1,250 into this court in this suit, commenced by him against the contractor and claimants, by which he seeks to compel them to interplead and have their respective rights in the fund settled. He has procured an injunction which restrains them from proceeding at law against him — the injunction which the defendants now move to dissolve.

The statute provides that when any building shall be erected in whole or in part by contract in writing, it shall be liable to 'the contractor alone for work done or materials furnished in pursuance of the contract, provided, among other things, the contract be filed. P. L. of 1892 p. 358. Thereby it is prescribed, also, that when the owner of a building contracts in writing for the performance of work in the erection of the building, the contractor mlone shall have a lien for the work done and materials furnished in performance of the contract, if, among other things, the contract be filed. One reason why the contract is required to be 'filed is'that anyone performing labor or furnishing materials, in •the'erection of the building, may, upon examining the files, know precisely what work the contractor is to do, and consequently the extent to which the building is exempt from a lien by him 'for the work lie may do and the materials he may furnish, and how he should limit any credit he may conclude to give. If the contract refers to plans and specifications of the work, and it is necessary to _ examine them in order to ascertain how much of the building the contract covers, to complete the notice contemplated by the statute, they also must be filed. Ayres v. Revere, 1 Dutch. 474; Babbitt v. Condon, 3 Dutch. 162; Budd v. Lucky, 4 Dutch. 484; Pimlott v. Hall, 26 Vr. 192.

1 In the present case it appears that the contract with Sandknop, ■referring as has been seen to specifications, wfas filed, but'that the spec'ificátióhs were not filed. The defendants rely upon this ■omission to justify their insistment that the building is not exempt from liens for their claims. It is perceived that the •question is'resolved to this: Is it necessary to examine the specifications referred to in the contract with Sandknop to ascertain ■how'mu'ch of the work and materials in the erection of the complainant’s building it covers? "If it is necessary, the contract was not properly filed and the claimants have their liens and) cannot be obliged to look to the fund in court.

As has been seen, the contract required that Sandknop was insufficiently “erect and finish" the building agreeably to the specifications, and provide alt kinds of materials for the “ completing- and finishing" * * * all works of the building “ mentioned in the specifications.” If the health authorities should require changes in any work in and about the erection of the building,”' he was to make the additions, alterations and changes at his own expense. If the complainant should desire additions to or omissions from the contract work they were to come within the contract and be added to it or subtracted from the specified work and not affect or make void the contract.

It is plain that the contract contemplated that Sandknop waste do all the work and furnish all the materials necessary to-complete the building. He was to erect and finish ” it. It is-true that the work primarily contemplated was described and particularized in plans and specifications. That was because,, between the contracting parties, those plans and specifications, were necessary to determine the- character of the erection. But they did not limit the contract. That was made elastic, so as-to go beyond them and cover all work in the erection, by providing that if, at the owner’s pleasure, there should be additions to, omissions from or changes in the specified work, the changes and additions were to be within the contract. In short, whatever the contractor was to do, he was to do under the contract.. How, under these circumstances, would examination of the specifications more clearly show the extent of the work which the-contractor was to do upon that building? All that he would do-would be done under the contract.

In Ayres v. Revere the builder was to find and 'provide all' materials, according to the plans and specifications, except where-it was otherwise stipulated, expressed or agreed in the specifications, and there, of course, the extent of his obligation could not: be ascertained unless reference was had to the specifications.

In Hill v. Carlisle, 14 N. J. L. J. 114, the contractor was to-provide materials for completing and finishing all the “ mason. and other work” of the building “mentioned in the mason’s specifications.” This, too, was manifestly a contract limited to part of the work on the building, which part could be ascertained only by inspection of the specifications.

So in Pimlott v. Hall the contract was expressly limited to the masonwork mentioned in the specifications, not to all mason-work that should be done in the building.

In each of those cases it was properly held to be necessary to file the specifications with the contract.

But this case is not similar to those. It is like Babbitt v. Condon, where the builder was to do all the work and supply all the materials, and it was held that the contract referred to the specifications merely for the description of the work. In distinguishing that case from Ayres v. Revere, Mr. Justice Haines said: But where all the labor and all the materials are to be done and furnished by the builder, then the contract alone will give the notice required by the statute, and that alone is sufficient to be filed. And though the contract may refer to the specifications and declare them to be part of it, yet, for the purpose of such notice, it is not an essential part nor necessary to-be filed with it. If placed on file, it could give no further notice than is given by the contract itself.”

So in Budd v. Lucky the same reasoning was applied.

My conclusion is that, as the case stands, the fund alone appears to be subject to the claims of the defendants, and that the complainant is entitled to the protection which the injunction affords him, and hence that the motion to dissolve must be denied.


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    The Newark Passenger Railway Company and The New Jersey Traction Company v. The Inhabitants of the Township of East Orange.
    Where, in virtue of a contract between a street railway company and a municipality, intended to have been made pursuant to law, the motive power of the street railway was changed from horses to electricity supplied through overhead wires supported by poles, at a considerable expense to the railway company, and has been operated accordingly for more than two years by the lessee of the railway company, and the municipality, now denying the legality of the contract upon its part and also the authority of the lessee of the railway company to operate the railway under the contract or otherwise, and insisting that the contract is not duly performed by the railway company and its assignee, threatens to remove the poles and wires, regarding them as nuisances in the street, which removal will inflict not only irreparable injury upon the railway company and its lessee in their business, but will also work great inconvenience to the public, the proposed action will be restrained upon the application of the railway company and its lessee, in order that the status quo may be preserved until the final hearing of the cause, provided that the court shall be satisfied that the contract is being duly performed upon the part of the applicants.
    On motion for injunction. Heard on bills, affidavits and answer.

      Mr. Anthony Q. Keasbey, for the complainants..

      Mr. J. Frank Fort and Mr. Hamilton Wallis, for the defendant.
   The Chancellor.

The original and supplemental bills are filed by two complainants. One of them, the Newark Passenger Railway Company, admittedly had power to construct and operate the railway in question through Main street, in East Orange. It did construct it, and until January, 1891, or thereabouts, operated it by horse power. On the 7th of that month the township committee of East Orange, having charge of the streets in that municipality, by its resolution consented that the propelling power of the •cars of the Newark Passenger Railway should be electricity, sup•plied to motors in the cars by overhead wires supported by iron or steel poles planted within the curbs on opposite sides of the street and connected by steel wires. Tire resolution by which the consent was tendered prescribed terms upon which the consent should become effective, to wit, that the railway company •should enter into a contract with the township to abide by and perform all and singular the matters and things” in the resolution recited, and give bond in the penal sum of $10,000, which should be conditioned for the performance of the contract.

The contract contemplated was executed by both parties to it and bond was given by the railway company. The contract,' among other things, provided that before the operation of the railway by the new power its tracks should be relaid and paved •between, as stated therein; that the fares to be charged for passage upon the railway should not exceed five cents to any point on the line of the railway in East Orange or other municipalities ; that the railway company would pay East Orange township yearly the sum of $10 for each car used in the township; that the railway company would level snow in the street when ■thrown out of its tracks, and that its cárs should be run under .five minutes’ headway between five o’clock in the morning and •midnight each day, and should be heated in cold weather and ■sufficiently lighted to enable passengers to read. After the delivery of the contract and bond, the Newark Passenger Railway Company, at considerable expense, relaid its tracks through Main street in East Orange, adapting them to the new motive power, and erected poles, strung wires, procured electric motors and abandoned its horse cars, and from thence hitherto its railway has been operated by electricity. The motive power of its whole system of railways, extending from Newark through East Orange into municipalities west of that township, was changed to electricity, in which system the railway through East Orange constitutes a link of the greatest importance not only to the ■complainants but also to the traveling public.

In March, 1892, the Newark Passenger Railway Company executed a paper purporting to be a lease of its railroads, rolling-stock, franchises and privileges, to the New Jersey Traction Company, for the term of nine hundred and ninety-nine years, from the 1st of January, 1892, the latter company agreeing to-pay an annual rental aind to discharge the duties and obligations" of the railway company, and thereupon the New Jersey Traction Company took possession of the property leased and hitherto has operated the railway. Subsequent to this leasing,, question arose between the defendant and the traction company touching the latter’s performance of the terms of the contract with the township, and the township committee passed an ordinance which provides for the removal of the poles and wires of the railway company, under authority of which, the complainants have each been notified to remove the poles and wires from Main street, and yet later, have been served with a notice to-appear before the township committee and show cause why a resolution instructing the chief of police of the municipality to-remove the poles and wires should not be passed.

At this stage of the proceedings the original bill herein was-filed, and an order to- the township to show cause why an injunction should not issue to stay the removal of the poles and wires, containing an ad interim stay of such removal, was-granted.

On the 13th of December, 1893, the state board of commissioners of electrical subways assented to the use of electric motors by the Newark Passenger Railway Company and its lessee, as the propelling power of their cars, and to the maintenance of poles and electric wires for the operation of electriemotors in East Orange and other localities, and, on the 13th of January, 1894, this consent was presented by supplemental bill.

The defendant has answered the bill, justifying the moral attitude of its proposed removal of the poles and wires by alleging a non-compliance by the complainants with the terms of their-contract, to wit, in running their cars at an excessive rate of speed; in failing to run the cars upon five minutes’ headway;, in failing to pay the yearly fee of $10 for each car; in failing to pave between their railway tracks as the contract referred to contemplates; in failing to carry passengers for the rates agreed' upon, and in failing to level snow which has been thrown out. of their tracks in the winter, and asserting a legal right to remove the poles, as a nuisance in the highway, for the reasons-that its consent to the change of the motive power was by resolution and not by ordinance, as its charter required; that it was without legal power, either by resolution or by ordinance, to» authorize the erection of poles and wires in the street; that its-consent, even if valid, was a license to the Newark Passenger-Railway Company, not transferable to the New Jersey Traction. Company; that the Newark Passenger Railway Company was without power to lease to the New Jersey Traction Company, and the last-named company, being incorporated under the General Corporation law, could not become the lessee of the franchises of a railway company, and hence that the lease to it was a virtual abandonment, by the Newark Passenger Railway Company, of its franchises. It therefore insists that the rights upon which the complainants base their claim for relief, andl which they seek to have protected in limine, failing, or at least, ‘being doubtful, under well-settled principle, a preliminary injunction will not issue.

It is perceived that the legal right claimed by the defendant, is based upon allegations of defective title in the complainants, in that the defendant irregularly entered into a contract which-it was without power to make, and the Newark Passenger Railway Company, by leasing to the New Jersey Traction Company, not only has forfeited the right which the contract may have-secured to it, but has also abandoned its franchises, the traction, company having no power to exercise them.

What the exact terms in the lease to the traction company are, does not appear, for that which is called the lease is not before me. Hence, I cannot enter upon the question whether or not the Newark Passenger Railway Company has abandoned the-exercise of its. franchises and forfeited the right which the contract with the defendant municipality may have secured to it.

The questions suggested by the defendant’s attitude, if they possess merit, and as to that I do not now mean to express any" ■opinion, appear to be of the utmost importance to the complainants, and of such character that they cannot be satisfactorily passed upon in this present preliminary application.

■ It is acceded that when the electric road was constructed by the Newark Passenger Railway Company, that corporation had full power and authority to operate a street railway by electricity, provided it should obtain the consent of the defendant municipality, arid that such defendant intended to give its consent by its resolution and contract, is beyond question. And it ■is also acceded that the railway company and the traction company successively,’or joiritly under the lease between them, have ¡been in possession and use of the electric 'railway and have operated it in the public service since the contract was entered into. It is manifest, by the circumstances shown, that the cessation ■of that operation at this time will work not only a serious and irreparable injury to the complainants, but also an inestimable inconvenience to the public of East Orange and the municipalities west of it, and, at the same time, that the continuance ■of the operation to the time at which final hearing may be had upon full proofs, if the complainants, on their part, comply with the terms of the contract, cannot be seriously detrimental to the ■defendant municipality. Under such conditions, I deem it to •be my duty to preserve the status quo till the case shall be finally disposed of. Lowndes v. Bettle, 33 L. J. Ch. 451; 1 Spell. Ex. Relief 32; 1 High Inj. § 698.

But as the complainants now virtually seek the enforcement of the contract with the defendant municipality, and it is not equitable that they should have that enforcement, even temporarily, if they fail to obey the requirements of the Contract on their part, my proposed action justly must be predicated upon their performance of it. While they deny non-performance in other respects, they substantially concede that they have failed to pay ■a license fee for each ear used in the transportation of passengers within the limits of East Orange, because they dispute their liability to pay license fees for substituted cars. I construe the ■contract as the defendant does — that for every car used in the transportation of passengers, whether substituted for a car retired or otherwise, the complainants must pay a license fee of $10 each year. I will therefore require, as a condition precedent to-the issuance of an injunction, that all the license fees from the-date of the contract shall be paid.

By the terms of the order to be made, I will fix a time within which such payment must be made, and to that time the restraint heretofore directed will continue, and thereafter its continuance by injunction will depend upon the event of payment of the license fees or failure to pay them. The defendant will, be at liberty to at any time move for the dissolution of the injunction upon clear proof of non-compliance with the contract in other respects.


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    Susan Roarty v. Michael Smith, trustee, et al.
    1. Where all the lands of which partition is sought by tenants in remainder-of several undivided shares are held by a single particular estate, partition, cannot be had without the consent of the tenant of that particular estate.
    2. Where a testator devised and bequeathed his entire estate to trustees, to collect the income therefrom and divide the net income in specified proportions among his children for their respective lives, and at the death of each-child gave and devised a specified portion of the corpus of the estate to the child or children of the child dying, or, and in the event of there being none, to others — Held that, upon the death of each child, the estate which the trustees formerly had in that portion of the corpus which was given to the child or children of the deceased, child, or to others if there should be no child,, ceased.
    On bill for partition and answer thereto.
    The bill seeks the partition or sale of four parcels of land' of which John McDermott died seized on the 21st of October, 1885. By his will he devised and bequeathed his entire estate-to Lorenzo W. Elder and Michael Smith and the survivor of them, in trust, to keep the personal estate invested in good inter•est-bearing securities and take charge of the real estate, receive its rents, issues and profits, maintain it and divide the net annual income from the whole property in the proportions of three-twentieths thereof to each of his children, Mary, William, Susan, Michael and Edward, during their respective lives, and two-twentieths thereof to his son Patrick during his life, if he should appear within five years and claim it; and if he should not ■appear within that time and claim it, one-twentieth each additional to Susan and William and two-twentieths thereof to the testator’s granddaughter, Lizzie McAlpine, daughter of Mary, ■above named, for her life, and one-twentieth thereof to the testator’s granddaughter, Mamie Roarty, the daughter of Susan, •above named, for her life.
    Eollowing the provision for such trust, the will proceeds to provide that “ after the death ” of each child and grandchild named, the testator gave, devised and bequeathed to the then •surviving child or children of such decedent, or, if there should be no such child or children, to others indicated by the will, a proportion of the corpus of his estate equal to the proportion of the income to which the decedent Avas theretofore entitled.
    Lorenzo W. Elder assumed the trusteeship alone, but died, and thereupon Michael Smith qualified as trustee, and now survives and is acting as such trustee.
    The testator’s daughter Mary died on the 5th of June, 1889 ; his son William died on the 9th of October, 1889; his son Michael died on the 6th of October, 1890; his granddaughter Lizzie died on the 24th of September, 1892, and the son Patrick .has not been heard of for many years.
    Under the will, in virtue of the deaths referred to, the complainant takes an undivided share in the corpus of the estate, as well as three, or perhaps four-tAventieths of the income, and because of such interest in the corpus now seeks partition of the lands in question. Her right to compel such partition is denied by the trustee.

      Mr. Gilbert Collins, for the complainant;

      Mr. Abel I. Bmith, for the defendant Michael Smith, trustee.
   The Chancellor.

The trustee’s claim is that he is entitled to a particular estate dn the whole of the lands of which partition is desired, which "will endure until the last surviving life beneficiary shall die. He argues that, as each of said beneficiaries is to have a certain ¡proportion of the whole net income, it is necessary for the trustee, in order to effectuate that right, to continue to the end of the trust to take the entire income, retaining his estate in the whole ■corpus for that purpose, and, having such particular estate, he alone is entitled to the present actual possession of the property, ■and, that being so, he may, as the law stands to-day, by withholding his consent to a partition, which the due execution of his trust requires, aud he consequently does, defeat the object of the bill.

Let us first understand the law.

Joint tenants and tenants in common were not, at common law, compellable to make partition. By force of statutory law, existing at the opening of the present century, to which reference is made in Stevens v. Enders, 1 Gr. 271, partition became compellable between (1) those who held as joint tenants or tenants in common estates of inheritance in their own right or in the right of their wives; (2) those who held as tenauts in common or as joint tenants for life or years; (3) or where one had an estate for life or years and another of freehold or inheritance; (4) and a tenant by the curtesy. Stevens v. Enders, supra. But such partition did not extend to persons taking in remainder, vested or contingent, because they Mere neither in actual possession nor entitled to immediate possession in severalty after the partition should be made. The object of the enactment M’as simply to remove the inconvenience of joint possession and give the present use in severalty to those who, before the partition, should be entitled to it jointly. It follows, as was held in Burroughs v. Dunlap, reported with Stevens v. Enders, that under that enactment there cannot be a partition at all where the whole estate in possession is held in one interest.

In 1816 a statute was enacted to give ptwer of sale where partition could not be effected without great .prejudice to the owners, but it was held not to be applicable to a case where, by the limitations of the estates, remainders existed. Stevens v. Enders, supra; Young v. Rathbone, 1 C. E. Gr. 224, 226.

By the enactment of March 6th, 1852 (P. L. of 1852 p. 157;-Rev. p. 801 § 25), a means was afforded to render a partition between tenants in possession binding upon the tenants in remainder or expectancy (Smith v. Gaines, 12 Stew. Eq. 545, 548), and a supplement to that act, in 1861 (P. L. of 1861 p. 318; Rev. p. 802 §§ 26—29), authorized a sale of lands in which the undivided shares were limited over in the manner specified in the act of 1852, provided an actual partition would impair the value of the lands one-fourth part thereof, amended in 1891 (P. L. of 1891 p. 423) so that it should be allowed if the land is-so circumstanced that a partition thereof cannot be made without great prejudice to the owners or persons interested in the same.

By a statute in 1858 (P. L. of 1858 p. 478; Rev. p. 802 § 30) the several tenants in remainder in fee of lands which are held by a particular estate for life or lives or less, are allowed,, with the assent of the tenant of the particular estate, to have partition, or, under proper circumstances, sale.

It is perceived, upon this review of the law, that the decision in Burroughs v. Dunlap remains undisturbed, and that if the defendant Michael Smith has such an estate in the whole-property left by John McDermott as he claims, and he cannot, under his trust, consent, or does not consent to a partition, then the complainant will be unable to secure the object of her bill and the bill must be dismissed. But if his estate in any undivided part of the property has ceased, upon the death of one or more of the beneficiaries under the trust created by the will, and others have become the owners of that undivided part and are entitled to present actual possession thereof jointly with the trustee, those persons may enforce partition and by it bind the trustee and, as well, those who take in remainder the undivided part he yet holds.

The vital question to be solved, then, concerns the extent of the trustee’s estate, and that is to be determined by the intention of the testator with respect to it.

His apparent scheme was that his children and his two grandchildren mentioned in the will, should receive income only for their respective lives. To accomplish that purpose, he bequeathed and devised his estate, real and personal, to trustees to so manage it that an income should be derived which they should divide and pay in specified proportions to the beneficiaries indicated during their respective lives. The terms of this provision standing alone lead to the inference that the estate of the trustees was to continue in the whole property to the termination of the trust. But the provision is immediately followed by a consideration of the ultimate disposition of the corpus of the estate, in which he prescribes that “ after the death ” of each of the several life beneficiaries, he “gives, devises and bequeaths” to his other child or children a portion of his estate equal to the proportion of the income had by the deceased beneficiary, or, if there should be np such child or children, then to others as specified. He does not expressly provide for a pro tanto termination of the trust estate in his property upon the death of a beneficiary of the income for life, but from the disposition of a portion of the corpus at that time, which is inconsistent with the continuance of the trust estate in that part of the corpus, I think a controlling implication arises that his intention was that, as each life-right to income should fall in, a specified proportion of the corpus should be cut off from the whole, and that only the portion left should remain under the trust.

The estate taken by the trustees was to be merely that which should suffice for the execution of the trust pursuant to the testator’s intention. At first they were to take the whole property, but when the daughter Mary died they no longer needed three-twentieths of the estate to enable them to perform their duty, and thereupon their estate in that three-twentieths ceased. In the same manner, when the sons William and Michael and his granddaughter Lizzie died, eight or nine-twentieths more of the property passed out from the trustees’ estate.

The surviving trustee’s particular estate now extends to only a fractional part of the whole estate. He is a tenant in common with the complainant and others, who, jointly with him, are ■entitled to present actual possession of the land in question.

I am of opinion that the bill will lie.

There will be a reference to determine the title and interest of the respective parties, and whether partition can be had without great prejudice.


author: Bird, V. C.

text:
    The Pemberton Building and Loan Association v. George L. Adams.
    1. Infancy is no defence to a suit upon a contract, the consideration of which was money actually advanced to the infant, upon his falsely representing himself to be of age, such representation being relied upon by the lender.
    2. A court of equity will not permit a defendant to protect himself against the enforcement of a contract, under which he has secured a loan of money, under the plea of infancy, without returning the money loaned.
    Ou final hearing on pleadings and proofs.

      Mr. Joseph II. Oasldll, for the complainant.

      Mr. John W. Wartman, for the defendant.
   Bird, V. C.

The principal question in this case is whether the defendant, George L. Adams, represented himself to be of age, and on such representations secured the loan of the moneys named in the mortgage. The evidence shows that when the parties were negotiating, the person making the loan asked Adams if he was of age, to which Adams replied that he was. That such inquiry was made is not only established by the testimony of the person who made it, but by a bystander, who distinctly heard the inquiry but did not hear the answer thereto, although he swears that something was said by way of reply. Adams says he made no representations concerning his age. I have no doubt but the inquiry was made and that the answer was purposely false. It is equally clear that the statement that' he was of age was relied ■upon, and that the loan would not have been made if the answer ■had been according to the fact.

The law will not, under such circumstances, allow a frauddoer to protect himself under the plea of infancy. 1 Jones Mart. § 631; Herm. Estop, and Res Adjudicata p. 1232 §§ 1100, 1118, p. 1253 § 119 ; Parker v. Hayes, 12 Stew. Eq. 478, 479; S. C., 14 Stew. Eq. 631, 633 ; 2 Pom. Eq. Jur. §§ 780, 945.

In the next place, Adams, after coming of age, retained the possession of this property and claimed and enjoyed all the benefits of a conveyance thereof, and now raises this defence of infancy without offering to return the consideration money. Under these circumstances his liability continues even though ’there had been no fraud. 1 Jones Mort. §§ 104, 105; Herm. Estop, p. 1257 § 1121; 3 Wait Ac. & Def. 443, and tnany cases there cited; 1 Story Eq. Jur. § 385.

The complainant is entitled to a decree, with costs. I will so •advise.


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    James Brindley, administrator, v. Fanny Lawton.
    A bill wliicli rests on the allegation that the complainant’s intestate gave a ■certificate of stock to the defendant in consideration for her living thereafter in illicit relations with him, and which prays for a surrender of such certifi•cate, will be stricken out on motion, because it shows that the contract was illegal and immoral.
    On motion to strike out, for scandal and impertinence.

      Mr. Woodbury D. Holt, for the motion.

      Mr. Edwin Robert Walker and Mr. Garret D. W. Vroom, •contra.

   Bird, V. C.

The complainant shows that he is the administrator of John Brindley, deceased; that the decedent left a widow and; three children him surviving; that at the time of his death he actually lived and cohabited with the defendant, Fanny Lawton;. that the decedent was, at the time of his death, entitled to the possession and was the owner of a certificate of stock of a certain pottery, which certificate represented twenty shares of' the stock of said company of the par value of $100 per share;, that said certificate was afterwards ascertained to be in the-possession of the defendant, Fanny Lawton, and that when-the-possession thereof was demanded of her by the complainant she refused to surrender the same, and claimed that it had been given to her by the said John Brindley, deceased, in his lifetime. The bill then charges

“that even if the pretence so last as aforesaid made of the said Fanny Lawton be true, that nevertheless the said gift of stock by your orator’s said father to the said Fanny Lawton is absolutely null and void as being against public policy and good morals, because your orator’s said father gave the said stock, if at all, to the said Fanny Lawton as an inducement to, and consideration for, her living with him thereafter in a state of adultery, and that the said Fanny Lawton, in consideration thereof, thereafter did live with your orator’s said father in open adultery, and was so living with him at the time of his death.”

The motion is to strike this out because it is impertinent and scandalous. Since this is the foundation of the complaint the whole structure must stand or fall with it. The allegation is that the certificate was given to her upon consideration of her submission to him in committing the crime of adultery. The gift is alleged to have been made before the offence against the law and good morals was committed.

Gan a court of equity grant relief in such case by compelling the donee to surrender the possession of the thing given as compensation for her part in the offence? Professor Pomeroy, in. speaking of contracts that are void or voidable, because of their illegal or immoral character, says:

‘Among the most important and familiar illustrations are the following :• Contracts based upon the consideration, either past or future, of illicit sexual intercourse, or stipulating for such future intercourse, or in any manner promoting or furnishing opportunities for unlawful cohabitation or prostitution.” ■0 Pom. Spee. Perf. § 936; 1 Story Pq. Jur. § 296.

That- the contract presented by the bill was illegal and immoral is so declared in the bill itself. Will the court aid either party in asking for a rescission? The answer to this was in the negative, in the case of Ellicott v. Chamberlin, 11 Stew. Eq. 604. In that case, in order to induce the resignation of an executor, he was offered $10,000. After the payment of $5,000 in cash and the assignment of a bond and mortgage for $1,300, a promissory note was given for the remaining $5,000. After the payment of $2,500 on this note, an action at law was begun for the recovery of the amount due thereon. A bill was then filed in this court presenting the whole transaction and asking that the action at law be enjoined. The bill was dismissed by the chancellor. An appeal was taken. In delivering the opinion of the court of errors, Mr. Justice Párker used the following language: “There is no doubt that Mrs. Elliot could have successfully resisted payment of any part of the money she agreed to give Mr. Chamberlain for the renunciation of his executorship, had she interposed defence, but she chose voluntarily to pay the greater part of the money, and she cannot now recover what she has paid. She was a participant in an illegal contract for the purpose (as the evidence shows) of obtaining for herself the ■administration of the estate.

“If a contract be illegal as against public policy, its invalidity will be a defence while it remains unexecuted. If the illegal contract be in part performed and money has been paid in pursuance of it, no action will lie to recover the money back. Sm. Cont. 259.

“The law will not assist either party to an illegal contract, and the parties being in pari delicto, it will leave them where it finds them. If the contract be still executory it will not enforce it, and if already executed it will not restore the price paid nor the property delivered. Setter v. Alvey, 15 Kan. 157.

“ Mrs. Elliot cannot, therefore, compel the repayment of the money she gave Mr. Chamberlain on the agreement or on the note, nor can she compel the assignment to her of the Yauger bond and mortgage as prayed for in her bill. To that extent the contract has been executed, but she can resist the payment of the balance of the note for which suit has been brought. Her defence to the note can, however, be made in a court of law, and therefore the suit in the circuit court, already commenced, should not be enjoined.”

The bill was properly dismissed by the chancellor, without: costs. Johns v. Norris, 12 C. E. Gr. 485; Slocum v. Wooley, 16 Stew. Eq. 451.

"With these cases before me, it is needless that I should go. further.

The motion to strike out must prevail, with costs.


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    Andrew Miller v. Isaac Teeter.
    1. A request by tbe mortgagor to a third person, to write to the mortgagee-concerning a mortgage which he holds against the farm of the mortgagor, saying that he had made arrangements to pay it off, and telling him to produce it in person, or to send it to some friend, and in that case he would remit by check, is such an acknowledgment as to prevent the operation of the statute-of limitations.
    2. - An acknowledgment of a liability made to a third person with the understanding that such acknowledgment should be conveyed to the creditor, will) be as binding upon the debtor as if it were made to the creditor directly.
    On bill to foreclose.

      Mr. George A. Angle, for the complainant.

      Mr. George M. Shipman, for the defendant.
   Bird, V. C.

This bill is for the foreclosure of a mortgage. The answer sets up the bar of the statute of limitations. After no Tittle hesitation I have come to the conclusion that this defence has been overcome. The evidence which clearly supports this view is the acknowledgment of the debt by the defendant to a third person, about seven years before the statute would begin to run, in a request that such third person communicate with the creditor. What he said and what he requested will appear by the communication following, which was mailed to the creditor. Teeter, the debtor, was visiting such third person, whose name was Tit-man, and on such visit he requested Titman to write to Miller, the creditor, concerning the mortgage, which request Titman complied with the next day. Among other things he said :

“ He [referring to Teeter] wishes me to write to you concerning that mortgage you hold against his farm. He has made arrangements to pay it off. He would like you to bring it out if it is possible for you come, and if you cannot come you can send it to some responsible man and let him send you a check for the money.”

• In Murry v. Coster, 20 Johns. 576, it appears that counsel for the defendant wrote to the complainant, pursuant to instructions, that they would pay the claim without interest in order to avoid litigation, reserving the right to plead the statute of limitations, and the court held this a sufficient acknowledgment to take the ease out of the statute.

I think that where such acknowledgment is made to a third person with the express directions or clear intention upon the part of the debtor that such acknowledgment should be communicated to the creditor, the statutory bar will not avail the debtor. Although there are many authorities which hold that an acknowledgment of the debt to a stranger will prevent the intervention of the statute by the debtor, there are a large number to the contrary; yet I think wherever the question has been considered when the purpose of the debtor in making the acknowledgment to a stranger was that it should be communicated by the latter to the creditor, the creditor may rely upon it. Parker v. Remington, 15 R. I. 300; Wakeman v. Sherman, 9 N. Y. 85, 92; In re Kendrick, 107 N. Y. 104

In De Freest v. Warner, 98 N. Y. 217, it is declared (atp. 221): “Where the acknowledgment is to a stranger, and it appears that it was the intention that the acknowledgment made to him should be communicated to and influence the creditor, it is just as effectual to defeat the statute of limitations as if it had been made directly to the creditor or his authorized agent.”

There are other facts and circumstances in the case, but less decisive, and therefore I will not dwell upon them.

The complainant, on the 15th day of January, 1882, endorsed $20 upon the bond secured by this mortgage as a payment. The defendant denies having made any payment at that time. He says that $20 was paid to the complainant about that time by his wife, but that it was for a wholly different purpose. In this the defendant’s wife and another person who was present at the time and heard the conversation sustain the defendant. But since the complainant has seen fit voluntarily to make such a credit, whether it was done with the view of preventing the operation of the statute of limitations or not, I think he ought to be held accountable therefor.

I will advise that the complainant is entitled to the amount due upon his mortgage, with costs.


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    John Monroe et al. v. William H. De Forest et al.
    1. When a creditor who holds a collateral security taken from his debtor consents to a material alteration therein, to the prejudice of the surety, the surety is thereby discharged.
    2. An executor of a surety cannot consent to the discharge of a mortgage given to secure the debt for which the testatrix was surety until all the conditions of the obligation be complied with.

      On exceptions to master’s report.

      Mr. James Buchanan and Mr. Maximilian T. Rosenberg, for the exceptants.

      Mr. Frank Bergen, contra.

   Bird, V. C.

Dix & Phyfe claim to be creditors of the deceased testatrix. They hold a promissory note which was drawn by 'William H. De Forest, Jr., to the order of William H. De Forest, Sr., and endorsed by the latter, and also endorsed by the deceased testatrix, who was the wife of the- first endorser. At the time of the ■execution of the note a bond was given by the maker of the note in the sum of $60,000, for the payment of. $30,000, with interest, which bond was secured by a mortgage on certain lots on One Hundred and Forty-fourth street and on Seventy-sixth street in New York city. At the same time an agreement was entered into between Dix & Phyfe and the maker of the note, which concluded with the stipulation in these words:

“The parties of the second part agree that the said mortgage of thirty thousand dollars on the premises on the south side of One Hundred and Forty-fourth street shall be subordinate and subject to the second mortgage of eighty thousand dollars, and shall be withheld from record for the period of ten months, which is the time provided for the completion of said buildings, provided the party of the first part shall faithfully perform his covenants under this agreement. And the parties of the second part agree to release from time to time any of the houses so to be completed from the lien of said mortgage on the payment to them of the sum of twenty-five hundred dollars on such house.”

The maker of the note aud the owner of the lots commenced the erection of buildings thereon, and after the walls were •erected applications were made from time to time by builders or materialmen to Dix & Phyfe for the release of their lien to the extent of the labor and material employed in and upon the said buildings, which was granted by them without any payment whatsoever.

It is insisted that this release, -without compensation, according to the agreement, works a discharge of the surety. I can. find no case or rule of law which will permit me to hold otherwise. It is well settled that a surety is entitled to the benefit of all collaterals which have been taken by the creditor from the-principal debtor. In this case, Dix & Phyfe not only had the-mortgage referred to, but entered into an agreement in and by which they wmuld release the mortgage from each of the various lots upon the payment of $2,500. It is insisted that this mortgage turned out to be of no value, and that therefore the surety is not damaged by the release. I very much doubt, under such a stipulation, if an argument to that effect can be of any avail,, especially where the testimony respecting the value of the premises at the time of the release shed so little light upon the question of' value. Besides this, the release evidently worked such a change of condition as to make it impossible to determine what the result would have been if such conditions had not been imposed. Who can tell but that the embarrassments which the-mortgage presented would not have been overcome by the owner had the mortgagee refused to be subservient to his wishes in surrendering his position as such mortgagee?

But the material point in the case is the absolute agreement that the mortgage is to stand until the payment of the $2,500. It is that agreement which the surety is entitled to, as well as-any benefit that may accrue from the value of the mortgaged premises. The lien of the mortgage may have been embarrassing ; but relief against such embarrassment devolved upon the mortgagor or owner of the premises, and not upon the mortgagee in the face of the agreement. The surety had an undoubted right in any and every event to expect that mortgage to stand in the place by way of seniority, which it held until ’$2,500 was-paid upon each lot.

This transaction comes directly within the judgment pronounced by Lord Loughborough, in Rees v. Berrington, 2 Ves. Jr. 540, also 2 White & T. Lead. Cas. 1870: “It only amounts-to this, that there shall be no transaction with the principal debtor without acquainting the person who has a great interest-in it. The surety only engages to make good the deficiency* It is the clearest and most evident equity not to carry on any transaction without the privity of him who must necessarily have a concern in every transaction with the principal debtor* You cannot keep him bound and transact his. affairs (for they are as much his as your own) without consulting him. You: must let him judge whether he will give that indulgence contrary to the nature of his engagement.” 2 White & T. Lead. Cas. 1894, 1901; Harr. Sub. § 19; Pearl v. DeaCon, 1 De G. & J. *461, 2 Am. Lead. Cas. 394; Baker v. Briggs, 8 Pick. 122; Vose v. Florida Railroad Co., 50 N. Y. 374, 375; DeColy. Guar. 388, 389; Miller v. Stewart, 9 Wheat. 680; 1 Story Eq. Jur. §§ 324, 325; Price v. Truesdell, 1 Stew. Eq. 200; Philadelphia and Reading Railroad Co. v. Little, 14 Stew. Eq. 520; Brick v. Freehold National Bank, 8 Vr. 307.

The surety, upon discharging the debt, is always entitled to-all the securities which the creditor had taken for his own protection in the same condition as the creditor received them. Pledge v. Buss, Johns. (Eng.) Ch. 663; 2 White & T. Lead. Cas. 1888, 1891; Vose v. Florida Railroad Co., supra; New Hampshire Savings Bank v. Colcord, 15 N. H. 119; Guild v. Butler, 127 Mass. 386; Paulin v. Kaighen, 5 Dutch. 480.

In such cases the law presumes injury to the surety until the contrary is established, the burden of which is upon the creditor* 2 White & T. Lead. Cas. 1902.

"When this agreement is read and considered it will be seen that the bond and mortgage referred to were to give way for other securities therein named, and was in reality to be postponed to such a period of time as would enable the debtor and owner to complete the buildings upon the lands mentioned* For this he was allowed ten months, by which it was manifestly intended to give him every opportunity to provide for every embarrassment. In the light of the above authorities, the creditor had no right to interfere with or to alter these conditions without the consent of the surety.

But it is claimed that the result above expressed is not the just result in this particular case, because William H. De Eorest, Sr., the executor of the surety, consented to, if he did not request, the execution of the releases by Hix & Phyfe, after he had proved the will and taken upon himself the burden of the execution thereof. I find nothing in the case that justifies the executor in giving the least countenance to such release. Certainly he derived no such power from the will. This instrument only authorizes him to pay the just debts of the testatrix, and possibly to invest and reinvest certain portions of the money, and to make sale of the real estate. The last clause is in these words:

I hereby grant to my said executor and trustees full power of sale of any ■or all of my said estate upon such terms as said executor or trustees shall deem wise, and I hereby grant to my said trustees full discretion in the management •of said trust estates and the character of the investments.”

Certainly here is no semblance of power to increase the liabilities of the estate, nor to discharge any security then existing ■against liability, however slight that security might be supposed to be in the estimation of the executor.

Perry on Trusts § 433 says:

“Trustees who hold an equity of redemption in. lands mortgaged for more than their value, may release the equity of redemption to .avoid the costs of a foreclosure suit, where such suit will lie and where costs would be imposed upon them as defendants. If a trustee is a mortgagee, he would not be justified in releasing part of his security for the convenience of the mortgagor merely, nor unless there was some advantage to be .gained to the cestui que trust or the trust estate.”

Lewin on Trusts and Trustees p. *591 § 4k- says:

“A trustee may, under circumstances, release or compound a debt. But if a trustee release or compound a debt without some sufficient ground or justification, or if he sell a debt for a grossly inadequate consideration, he will clearly be answerable to the cestuis que trust for the amount of the devastavit.’’

In Jevon v. Bush, 1 Vern. 342. a trustee in .a recognizance, having released it without any consideration, was decreed to pay the principal and interest.

Hix & Phyfe had full notice of the fact that William H. Ee Eorest was executor of the surety, who had died, and consequently that it was his duty to administer her estate in the interests of the eestuis que trust, the creditors of his testatrix.

However, it is pressed upon the attention of the court that the real estate so mortgaged as security for the payment of the $30,000 was absolutely worthless for any such purpose, and that consequently no injury was done to the estate of the testatrix ; or, in other words, that consent to such release by the executor did not increase in any wise the liability of the estate. This conclusion has no foundation to rest upon under the circumstances of the case. And, what is more to be regretted, it is impossible, as was said by Lord Chief-Justice Knight Bruce, in Wiles v. Gresham, 5 De G., M. & G. 773, now to determine that question. Indeed, that question could only have been satisfactorily settled by the ordinary or natural progress of events, in the just prosecution of the rights of all parties interested in the premises. From this statement it will be perceived that the point to be determined is not the value of the premises at any particular time, but whether William H. De Forrest, Jr., or anyone in his stead, would have carried out the implied promises and agreement entered into with Dix & Phyfe, and paid the $2,500 in discharge of their mortgage to that extent, in case no release had been executed. This was his undertaking. Upon the strength of this undertaking the transaction was completed not only as to Dix & Phyfe, but as to Mrs. De Forest, the surety. When this transaction in all its details was carried through, the prospective value of the property must have been considered, but whether it was or not, the expressed condition was that upon the execution oí a release $2,500 should be paid. The value of the property had nothing whatever to do with this condition, and as was clearly and forcibly intimated in the case of Wiles v. Gresham, supra, none can say that if the release had not been executed the mortgagor or owner of the premises would not have raised the $2,500. It was not only his contract that he would, but his highest interest to do so. The buildings were partially erected. It would be absurd for the court to assume that it was impossible for the owner to raise the $2,500 upon each lot. It was incumbent upon him to raise the money or submit to the sacrifice of ■all that lie had already invested, the former of which is clearly much more probable than the latter.

The foregoing conclusions seem to be quite in harmony with the authorities which hold that an executor or administrator cannot bind the estate which he is administering by any new promise. Sumner v. Williams, 8 Mass. 162; Schmittler v. Simon, 101 N. Y. 554; Pinney v. Johnson, 8 Wend. 500; Austin v. Monroe et al., 47 N. Y. 360; McFarlan v. Stinson et al., 56 Ga. 396.

An executor cannot, by his promise as such, bind the assets in ¡his hands, nor can he consent to their diminution or surrender without a reasonable consideration therefor, or until all the conditions of the obligation be complied with. The estate being insolvent the creditors have a right to be heard.'

I think the exception to the master’s report in this respect should be sustained, with costs.