author: Bird, V. C.

text:
    Inhabitants of the City of Trenton v. John McQuade.
    ’ 1. A city lias power to make changes in the grade of its streets; the fact that it has once graded the streets does not exhaust such power.
    2. A preliminary injunction will lie to restrain a lot-owner from tearing up a sidewalk and curbing in front of his lot, rendered necessary by a change of grade in the street, though he was not first allowed compensation for any injuries caused thereby, where he had ample notice of the beginning, progress and completion of the work, and availed himself of none of his legal remedies, and where the tearing up of the curbing and sidewalk may result in injuries to pedestrians for which the city may be liable.
    On order to show cause &c.

      Mr. Edwin B. Walker, for the complainants.

      Mr. William M. Banning, for the defendant.
   Bird, V. C.

The bill in this case shows that the common council of the city of Trenton and the Pennsylvania Eailroad Company entered into an agreement by which certain streets were to be altered and other improvements made for the benefit and convenience of the inhabitants of the city or of the company. The common council of the city passed an ordinance to change the grade of a portion of Lamberton and Ferry streets and to widen Bridge street, between Union and Warren streets, also to vacate a portion of Bridge street, which ordinance was duly approved on February 21st, 1891. The said ordinance was passed by the procurement of said company, upon the express provision ■ that the said company should at its own expense lay out, grade, curb, pave and dedicate a new street thirty feet wide, between Warren and Fair streets, and should widen Bridge street, between Union and Warren streets, and should dedicate the part so widened to the city of Trenton and should provide means to carry off all the surface water, whose then present course would be diverted or changed by the aforesaid alterations and changes in said streets, and the said company agreed to indemnify the said city against any losses which might be incurred to property affected or by the said changes of grade. All the said changes of grade so contemplated were made and effected by the company, except, according to the insistment of the defendant, the successful carrying off of all surplus water.

The defendant, John McQuade, owns a lot on said Ferry street, on which is his dwelling-house, opposite to which the grade was changed in making the said improvements, and chiefly in completing a convenient embankment in making an access to a bridge over the railroad. After such changes and improvements had been made and completed, and after means had been provided for carrying off all surface water (this being denied by the defendant), whose then present course was diverted or changed by the aforesaid alterations in said streets, the city authorities directed the street to be relaid and recurbed in front of said McQuade’s dwelling, which was done. While the city authorities were employed in making the said prescribed changes, Mc-Quade interfered and molested them, and after the said pavement was relaid and the said curbing reset, according to the prescribed grade, McQuade deliberately tore up, destroyed and removed the said pavement and the said curbing, so that the said pavement was and is in a very bad. condition. From his conduct and declarations it is not only manifest that he intends to continue resisting the city authorities, but' again to undo and destroy whatever they may undertake to do or accomplish in perfecting the improvements and changes in the street opposite his dwelling. Hence an injunction has been asked for to restrain him from further interference with the authorities.

The defendant, by his answer, admits the making of all said improvements, and it appears that they were all made in strict compliance with the said ordinance and the undertaking and promise of the said company. But the defendant insists that such changes and alleged improvements have so diverted the water and increased the flow as to cause damage to his said lot and premises.

The excuse of the defendant for his violent interference with the city authorities and for his disturbance and destruction of the improvements which it made is that, owning the said premises prior to the making of said changes and alleged improvements on behalf of the city, he erected his dwelling-house thereon and made other improvements in accordance with the grades of the streets of the said city as they had then been fixed or determined upon by the city authorities, and that the grade so fixed carried the water from his premises; that in making such changes and improvements the company constructed an elevated bridge for the use of the inhabitants of the city, and that said bridge might be accessible, it was necessary to build approaches thereto by filling in Lamberton street and consequently raising the grade thereof in front of the property of McQuade.

The defendant insists that such changes and alterations of the grade in front of his premises are not authorized by the charter of the city of Trenton or by any law of the state, and that, consequently, he was justified in the resistance which he made and the threats indulged in. It is urged that, instead of these changes being so made as to carry off the water, they cause it to accumulate in front of McQuade’s premises and to direct it into his cellar. It is also urged that, in case the pavement and curbing be reset according to the contemplated grade, the pavement will be raised so high as to materially intercept the passage of light and air to his cellar.

Because the railroad company is interested in these changes and took a large part in the work of completing them, it is insisted that the city is not really interested therein, and consequently had no authority to pass the ordinance under which the city authorities have pretended to act in relaying the pavement and resetting the curb in front of McQuade’s house.

It is also claimed that if, in any event, the city had authority to enter into such an arrangement with the railroad company, the latter might proceed with the prosecution and completion of such improvements; it had no right to proceed until it first made compensation to McQuade for whatever damages he might sustain because of such changes, and consequently that he has the right forcibly to interfere an'd prevent the relaying of said sidewalk and the recurbing of the street until such compensation is duly made him. *

Doubtless, the city authorities had a right to make the changes in the grade of the streets, curbs and sidewalks above mentioned. The fact that the streets had once been graded and the different elevations and depressions prescribed, did not exhaust the power of the city authorities, such power being a continuing one. McKevitt v. Hoboken, 16 Vr. 482; 2 Dill. Mun. Corp. § 686; Smith v. Corporation of Washington, 20 How. (U. S.) 135; In re Furman, 17 Wend. 651; City of Delphi v. Evans, 86 Ind. 90.

The city authorities have the power to determine the grade of the streets, and when properly exercised, such authority is exclusive or inherent in the municipal authorities to the exclusion of courts of justice. 2 Dill. Mun. Corp. § 686.

The defendant justifies his course and objects to any restraint, because neither the city nor the company, nor both, by mutual agreement had the right to proceed and make the proposed changes or improvements without first making compensation to him for the damages which he would sustain by such changes or improvements. It is claimed that, under the constitution, neither the city nor the company, nor both, had the right to impose any new burdens upon his land, as was done by raising the grade of the street in order to effect convenient access to the bridge over the railroad by means of ordinary approaches, without such compensation. In support of this view many authorities are cited. Mettler v. Easton and Amboy Railroad Co., 10 C. E. Gr. 214; Morris and Essex Railroad Co. v. Hudson. Tunnel Railroad Co., 10 C. E. Gr. 388; Redman v. Philadelphia, Marlton and Medford Railroad Co., 6 Stew. Eq. 165; Johnson v. Baltimore and New York Railway Co., 18 Stew. Eq. 460; Folley v. City of Passaic, 11 C. E. Gr. 216; Morris Canal and Banking Co. v. Jersey City, 11 C. E. Gr. 294; Jersey City v. Central Railroad Co., 13 Stew. Eq. 417.

The general doctrine here invoked no one questions, but whether it is applicable at this stage of the proceedings, between these parties, admits of very grave doubt, in the sense in which the defendant desires that it shall be applied. The relative rights of these parties are to be determined by the situation in which they were with respect to each other at the time of the filing of this bill, and not in respect to the time in which the changes and improvements were begun. Parties may not lose any of their substantial rights of property or of action for damage thereto by delay, but they may lose the right to pursue remedies which they otherwise would enjoy under well-settled provisions of the law. I think these remarks are controlling in this case. The defendant has, by his delay, forfeited his right to protection in interfering with the full completion of this work of change upon the part of the city, until he shall have been compensated for all the damages which he now alleges he has sustained because of all the other changes in the grade and elevation of the street which have been carried on to absolute completion, and which he says so results to his.damage. He allowed all of this work so far to be finished without in any manner offering any opposition. Rittenger v. Passaic, 16 Vr. 147; Youngster, pros., v. Paterson, 11 Vr. 244. Nothing remains to be done but making the sidewalk and curbing conform to the rest of the work, which is so complete. Under the law, his right of compensation for any damages which he may have . sustained remains unimpaired. The seventy-first section of “An .act concerning roads ” expressly provides a remedy in such cases. Vorrath v. Hoboken, 20 Vr. 285; Vanatta v. Morristown, 5 Vr. 445. Since all of the changes in grades were determined

upon by ordinance, and all completed accordingly, except the sidewalk and curbing in front of the defendant’s dwelling, many months before the filing of the bill; and since he had ample notice of the beginning, progress and completion of such work, and availed himself of none of the legal remedies which the law affords him; and since, from the broken, irregular and bad condition of the sidewalk and curbing, pedestrians may be injured, and in consequence thereof the city may be liable to actions for damages; and since, according to the cases cited, the law seems to be só well settled as to the rights of the city and :the citizens, I regard it my plain duty to advise a preliminary ■injunction, -restraining the defendant not only from further interfering with the laying and completion of the sidewalk and curbing mentioned in the bill of complaint, but also from in any manner removing, disturbing or interfering with the said pavement, sidewalk or curbing after the same shall have been completed.


source: Caselaw Access Project

author: Bird, V. O.

license: Public Domain

text:
    State, ex rel. Board of Health of the Township of North Brunswick, v. Samuel Lederer et al.
    1. The board of health in the township in which a nuisance exists or is carried on has the authority and it is its duty to abate such nuisance, either on its own motion or by the aid of the court, though it is only hazardous to the health of individuals residing in another township.
    2. Carrying on an offensive trade for twenty years in the same place, remote from buildings and public roads, does not entitle the owner to continue it in the same place after houses have been built and roads laid out in the neighborhood, to the occupants and travelers upon which it is a nuisance. In such cases, prescription, whatever the length of time, has no application. Every day’s continuance is a new offence, and it is no justification that the party complaining came voluntarily within its reach.
    3. Every citizen is presumed to enjoy a normal condition of mind and body until the contrary is shown.
    4. Where it appears that the odors and gases from a fat-rendering establishment produce headache, nausea, vomiting, and compel citizens to close their doors and windows, both by day and at night, and interfere with them in the enjoyment of their meals and of sleep, such establishment is a nuisance, and it is the duty of the boards of health, in such cases, to take proper measures for its abatement.
    On bill to abate a nuisance.

      Mr. John 8. Voorhees, for the complainants.

      Mr. George C. Ludlow, for the defendants.
   Bird, V. O.

The business of the defendants, which the complainants seek to restrain, is what is commonly calledYat-rendering. It is carried on in the township of North Brunswick, in the county of Somerset, and within a short, distance of the line dividing the said county from the county of Middlesex. There are only three or four houses within a few hundred feet of the establishment in the county of Somerset, and two or three several hundred feet further away, while there are a great many dwelling-houses occupied as such in the county of Middlesex and in the city of New Brunswick within a few hundred feet of the. place where this business is carried on.

It is insisted that the board of health of the township of North Brunswick has no authority to proceed against the defendants for any nuisance hazardous to public health, in case it appears that the threatened mischief is only likely to affect the inhabitants residing in the said county of Middlesex. This is put upon the ground that jurisdiction is statutory and is limited to the township which creates the board of health. It is true that its jurisdiction is so limited. The board of health of any township can only proceed to abate a nuisance existing or carried on within its own boundaries. But to my mind it is very clear that, whenever the public health is threatened by such a nuisance, whether those who comprise the public live upon one side of an imaginary line or another, the board of health in the township where such nuisance is located has committed to it the duty of removing the nuisance or of asking the aid of the court-to that end.

But in this particular case the judgment of the court is not dependent upon any such question of jurisdiction, for the half dozen or more dwelling-houses within the township of North; Brunswick are sufficiently within the reach of the mischief, not only to claim but to demand the attention of the public authorities. Whether they'be many or few, no higher obligation can rest upon the court than to protect them in their health in case it be ascertained that it is in danger.

It is also strenuously urged that the defendants have had possession of the premises complained of for at least twenty-eight years, and for all that period of time have been carrying on the tanning of hides and rendering of fat, and are consequently entitled to the protection of the court, notwithstanding the hazard to public health may be ever so great. Courts will be very slow to yield to such a proposition. An acknowledgment of the principle claimed would practically give to the defendants and others dominion over a very much larger extent of territory than it would be actually necessary for them to own in order to nonduct their business, provided they had occupied the premises beyond the prescribed statutory period which prohibits actions to be brought by individuals. In the case of Commonwealth v. Upton, 6 Gray 473, the court said: “Carrying on an offensive trade for twenty years, in a place remote from buildings and public roads, does not entitle the owner to continue it in the same place after houses have been built and roads laid out in the neighborhood, to the occupants of and travelers upon which it is a nuisance.” People v. White Lead Worles, 9 L. R. A. 722; People v. Cunningham, 1 Den. 524; Fertilizer Co. v. Hyde Park, 97 U. S. 668; Mills v. Hall & Richards, 9 Wend. 315; Pottstown Gas Co. v. Murphy, 39 Pa. St. 257; Renwick v. Morris, 7 Hill 575; Wood Nuis. § 18; Dygert v. Schenck, 23 Wend. 446; Bloggy v. Dilworth, 38 Minn. 179.

But since the public is interested, I think the maxim, “Nullum tempus occurrit regi,” announced and maintained in Cross v. The Mayor, &c., 3 C. E. Gr. 311, should control the case before me.

In addition to this, very high authority has said: “ In such cases, prescription, whatever the length of time, has no application. Every day’s continuance is a new offence, and it is no justification that the party complaining came voluntarily within its reach. Pure air and the comfortable enjoyment of property are as much rights belonging to it as the right of possession and occupancy.” Fertilizing Co. v. Hyde Park, supra; Wells v. New Haven and Northampton Co., 151 Mass. 46; Sloggy v. Dilworth, supra; in note to Chicago and Eastern Railway Co. v. Loeb, see principles in harmony with this view, 59 Am. Rep. 353, 854; Hargraves v. Kimberly, 58 Am. Rep. 130, notes.

It was likewise very earnestly insisted that the'persons affected by the odors emitted from this establishment were in feeble condition of health by nature, or of abnormal physical characteristics ; in other words, possessed of some idiosyncrasy which cast them beyond the protection of all laws of a general nature, or which are enacted for the public welfare. I think that the utmost use which can be made of this argument is in reference to persons who are peculiarly sensitive to odors or sounds, and which affect them seriously and in a radically different manner from which the great mass of individuals are affected, it being quite difficult, if not impossible, for the law to provide adequate safeguards against all the imaginary ills which arise in the minds of the eccentric, or those of morbid habits or tastes. But this condition of mind or body must be established by clear proof. It cannot possibly have reference to that large class in every community that are less robust, or are more feeble in body, or less capable of resisting deleterious influences from without, than many, or it may be a majority, of their neighbors. All citizens are presumed to enjoy a normal condition of mind and body until the contrary is clearly shown. My attention was directed to Westcott v. Middleton, 16 Stew. Eq. 478, which was Sustained in the court of errors and appeals. See S. C., 17 Stew. Eq. 297. Westcott sought to restrain Middleton from conducting the business of an undertaker on the premises of the latter, which adjoined the residence of the former. The proofs showed that Westcott had a dislike amounting almost to a horror, of everything pertaining to the burial of the dead. I can discover nothing in that case which is so similar to the one under consideration as to influence me.

The case before me is radically different from the one cited. A large number of witnesses were in open court and were sworn in the presence of the defendants, and were cross-examined by their counsel. There was nothing in their appearance or the manner of delivering their testimony which indicated any peculiar idiosyncrasy or abnormal condition whatever. The very astute and learned counsel made no attempt whatsoever to satisfy the court, by his cross-examination of these witnesses, that there was the slightest difference between them and the great majority of mankind. It did not appear that there was any predisposition in any of them to sickness or feeble condition of body. Twelve or thirteen witnesses who live within a few hundred feet or a few hundred yards of the said fat-rendering establishment were more or less affected in bodily condition or health by the foul and unpleasant odors created at and issuing from said establishment. Several of these were made sick at their stomachs thereby; others were not only made sick in a similar manner, but such sickness was followed by vomiting; others at their meals were not only made sick, but were obliged to leave their tables. Some of these and others were disturbed during the night by the intensity of the odors. The sleep of not a few was interfered with because they were obliged to close their windows in order to keep the smell from their rooms, which in warm weather made their rooms so uncomfortable that their sleep was disturbed. That these odors are extremely foul and unpleasant at very frequent periods is established by the most incontestable proof.

Dr. Alonzo C. Hunt, inspector of the state board of health, was called as a witness. He had visited these premises several times and had ample opportunity to observe the nature of these odors. He spoke of the effect of these odors upon the general health as being manifested directly and indirectly. In the first place he said:

“ Directly, its effect upon the senses, it is likely to produce nausea and dizziness, and in some people, diarrhosal troubles and headache, and loss of appetite ; and indirectly, in the general effect of these conditions upon the health of people, in lowering the general condition of vitality, thus exposing them to attacks of disease to which they succumb readily.”

Dr. Donihue, a member of the board of health of the city of New Brunswick, has been frequently in the immediate vicinity of the defendant’s place of business and has had excellent opportunity to notice the odors complained of. He was asked to give his opinion as to the effect of these odors and gases upon the public health, and his answer was:

“All odors and gases tend to destroy health; * * * they are capable of producing nausea, headache, dizziness and a general feeling of fatigue, but they are not causes capable of producing any infectious disease in the human body. The decomposition of animal and vegetable matter are causes which produce these odors and are a menace to the public health, because it is very liable to be infected with disease germs, and so spread the particular disease with which it is infected, along the whole vicinity where the decomposing animal matter is situated, but the odors themselves are not capable of pro•ducing noxious diseases in th‘e human body; nor are these odors.noxious except as the particular germs are applied to the particular disease in a particular locality.”

In speaking of the multiplication of these germs he said:

“ I do not believe the mind is capable of conceiving how rapidly they do multiply. If I said millions a second, it would be very close to it.”

Dr. Wright was called by the-defendants. He has had fifteen years’ experience in the practice of medicine in the city of New Brunswick and in the locality of the business complained of. It is his judgment that these odors are not hazardous to the public health. He seems to rely upon the fact that the locality has been quite as healthy as any other during his acquaintance therewith. He says, however, that at Dr. Woodbridge’s, which is about five hundred yards distant, he has noticed the odors, and that they were “ dreadful.”

Dr. Long, who has practiced his profession in that locality for twenty years, says these odors have never been hazardous to the public health, and that locality has been healthier than any other portion of the city.” •

The result of this testimony is that these odors do distinctly and seriously affect the health of many persons who are of normal condition both of mind and body. The theories of the doctors differ, and may be said to appear at least to be in conflict. But while the facts, from a general standpoint, coincide with those who say that the locality has been equally healthy with any other, and so sustain their theory, the particular facts, which have been above given somewhat in detail, emphatically and most conclusively sustain the theory of the medical experts called by the complainant. The latter do not say that any disease of a pestilential or violently destructive character, has resulted from these odors. They simply say that they are of a character so to affect or influence the human system as to prepare the way for diséases, and that they will cause nausea, headache, diarrhoeal troubles and are a menace to good health; and all of these afflictions have visited many of the witnesses and have been produced by these odors.

In my judgment, the case presented is fully within the provisions of the statute. The board of health did its duty in filing the bill and in asking the aid of the court. They are the guardians of the public health, and the action of the legislature would be quite superfluous in creating boards of health if they were obliged to wait until it should be demonstrated by actual experiment to what extent such odors were capable of affecting health or destroying life.

After what has been said in the case of Board of Health of the City of Lambertville v. Butterfoss, which had the sanction of the court of errors and appeals (13 Stew. Eq. 325), and in the case of Board of Health of the Township of Hamilton v. Niedt & Matthews, 19 Atl. Rep. 318, it will be sufficient for me to say that in all these cases where boards of health ask the aid of this court they do so by virtue of the statute which extends its power so far as to inquire whether nuisances, sources of foulness or causes of sickness hazardous to the public health exist or not. The interpretation given to the statute by these cases .shows that the inquiry is limited to the determination of questions relative to the public health, and that there must be proof of danger, peril or risk, or something equivalent thereto, to justify the court in lending its aid, and that when this is made manifest the statute prescribes what the court shall do. In addition to the cases cited, see, also, People v. Detroit White Lead Works, supra.

Until very recently the defendants did their rendering in uncovered cauldrons, ánd since the fat could only be effectually separated by the highest possible degree of heat, the escape of the noxious odors and gases was in the highest degree excessive. They sought to entirely overcome this by the introduction of such devices or improvements as from time to time have been suggested. The separation of the fat therefrom is accomplished by putting the crushed bones and other matter in an enclosed vat or cauldron. This greatly, if not entirely, prevents the escape of the odors or gases during the steaming process. But all this matter, while it is still at a very high temperature, is exposed to the air in passing from such vat or cauldron to other receptacles for the more thorough separation of the fat from the solids, and after this exposure other mechanical contrivances of recent discovery are used to perfect the work of rendering, and which do to a large extent accomplish the object in view and prevent the escape of the objectionable odors and gases. But it is undoubtedly true that while the mass is passing from the first receptacle to the second, it is so exposed as to throw off an incalculable amount of odor, most offensive because of the intense heat to which it has just been necessarily subjected. The defendants called two experts as witnesses, who testified that in their judgment the defendants might introduce additional improved machinery which would greatly reduce the escape of gas and odors.

Having come to the conclusion above expressed, it certainly follows that, as long as this condition of things continues, the establishment must be considered a nuisance — a source of foul'ness, a cause of sickness and hazardous to public health — and should be enjoined until it can be carried on without disclosing those objectionable features.

But the testimony discloses another condition already alluded to, resulting from the operation of this fat-rendering, which is equally if not decidedly more hazardous to public health, which will necessarily continue to threaten the health of the community even though the foul odors just spoken of, and which are directly engendered by the process of rendering fat, should be entirely overcome. I refer to the condition of the brook spoken of, produced by the discharge of so much solid matter, together with the refuse liquid which is carried into the brook and which lodges along its banks and upon the stones and rough places in the bottom, and forms large sheets wherever the water eddies or is at rest. If the presence of such an immense mass of corruption, of decaying animal matter, which process is always hastened by the heat of the sun, be not hazardous to the public health, then all our sanitary legislation and all municipal regulations to that end are simple works of supererogation. While this mass may be, from time to time, carried away with high water, yet when drought continues it accumulates day by day and necessarily for long periods of time the exhalations therefrom are extremely offensive. Therefore, it is manifest that the use made of this brook by the defendants is as certainly subject to the condemnation of the law as the rendering establishment itself, if not more so; and that .it will not satisfy the demands of the public to effectually obviate the generation of the odors at the establishment itselij but that such demands extend to the prevention of the use of the brook in question, as a conduit for the refuse matter discharged in the process of rendering.

That I may not be misunderstood, it is proper to observe that, in coming to these conclusions, I have had regard to the rights of the public only, under the statute referred to, and have not in any sense considered the rights of individuals who may have suffered by any annoyance, or inconveniencé in their persons, or in their homes, or in damages by the depreciation of their property, because of proximity to this alleged nuisance.

The complainant is entitled to costs.


text:
    Samuel Wetherill et al. v. John S. Hough.
    1. When the real estate of an infant is converted into money by the order of the court, and the infant dies before attaining his majority, the fund will be treated as real estate and descend to the heirs-at-law of the infant.
    2. Where there is a compulsory conversion of real estate, as in the exercise of the right or power of eminent domain, without the consent or against the will of the owner of the fee, being mi juris or of disposable capacity, he must either recognize it or manifest a willingness to accept it as personalty to effect a conversion.
    3. Where all tenants in common of real estate, who are of age, undertake to convey the fee, including the interest of one not of age, and the portion of the purchase-money supposed to represent the interest of the latter be paid to his. guardian, as to the adults the conversion is out and out, and the fund so held by the guardian will be treated as personal estate, as between the adults and the legal personal representatives of the infant, in case of his death.

      On bill and demurrer.

      Mr. William L. Dayton, for the demurrant.

      Mr. Samuel D. Oliphant, Jr., contra.

   Bird, V. C.

William Wetherill was the owner of certain lands and died seized thereof, leaving him surviving several children, one of whom was named Sarah M., who married John S. Hough. Sarah M. died January 30th, 1875, leaving her surviving the said John S. Hough and Frances Eleanor A. E. Hough, their only child. The title of the said lands which descended to Sarah Hough, at her death passed to her daughter, the said Frances Eleanor A. E., subject to the estate by the curtesy of her father. The complainants were the brothers and sisters of the said Sarah, and consequently the uncles and aunts of the said Frances Eleanor, and they claim that the fee of the said lands would have descended to them (had it not been disposed of as hereinafter will appear) as the heirs-at-law of the said Frances Eleanor.

During the lifetime of Frances, by an order of this court, a portion of the said lands, of the value of $200, was conveyed to the gas company of the city of Atlantic City, and $80 paid for a right of way over a lot of land in Atlantic City. And $1,320.64 was paid for land taken by the Chelsea Branch Railroad Company, under the exercise of the right of eminent domain.

The said John S. Hough was appointed guardian of his daughter, the said Frances Eleanor, and received all of said moneys as such guardian, and held them as such at the time of the death of the said Frances Eleanor, and still has the possession of them.

The court is asked to declare that these moneys are to be treated as real estate, and consequently pass, by the statute of descent, to the complainants, who are the uncles and aunts of the said Frances Eleanor, subject only to the tenancy by the curtesy of the said John S. as the husband of the said Sarah.

As to the $200, it is insisted upon the part of the defendant, John S. Hough, that since the lands of the infant of that value were converted into money by the order and direction of the court, it must be presumed to have been in the interest, or for the benefit of the infant, and that it was consequently such a conversion as would have resulted if Frances Eleanor had been of age and performed the same act in person. It is claimed that this was a voluntary, as distinguished from a compulsory, conversion, such as characterizes the sale of-lands under the statute by executors and administrators for the payment of debts of decedents, when the question arises as to whether any surplus remaining must be treated as real estate or as personalty.

The $200 must be treated as real estate. . The case most nearly like this which has been-considered by our own courts, is that of Snowhill v. Snowhill, 2 Gr. Ch. 20, which was before the chancellor on demurrer, and before the court of errors and appeals, as appears in the opinion of Chancellor Pennington, in 1 Gr. Ch. 30. The decision of the court of errors and appeals in that case has not been reported, but it appears from the case of Oberle v. Lerch, 3 C. E. Gr. 350, that the correctness of the decision was very seriously questioned by counsel and an effort made to have it overruled, but after full consideration and a review of a number of authorities, the chancellor, without qualification, approved the decision of the court of errors and appeals, in the case of Snowhill v. Snowhill. The case of Oberle v. Lerch was taken up on appeal (3 C. E. Gr. 575) and the decree of the chancellor affirmed. How, in the Snowhill Case, the legislature by special enactment authorized the guardian of an infant to sell certain real estate belonging to the infant. After such sale the infant died, and the question presented for the determination of the court was whether the proceeds of such sale should be treated as real, or personal estate. The chancellor, on demurrer, decided that it should be treated as personalty which passed to the representative of the infant, while the court of errors and appeals decided that it should be treated as real estate and that it descended to the heir-at-law of the infant.

The rule to be extracted from this case is that where there is a compulsory conversion of the real estate of an infant, the proceeds during the minority of the owner retain the character of real estate for the purposes of devolution and transmission.

The next case which has any real likeness to the present one is that of Smith v. Bayright. 7 Stew. Eq. 424. In this case the land of a monomaniac, which she held as a tenant in common with others, was sold upon the application of one of the tenants in common on proceedings in partition and ,her interest paid into court. At the time of the sale she was confined in a hospital, and was subsequently discharged therefrom and for a considerable period resided at -her own home. During the last-named period she frequently declared her intention to make application to the court for the payment of the proceeds of the sale to her. The chancellor held that, after her death, the money so in court might properly be regarded as personal, rather than real estate. From what has been said, it will be seen that the owner recognized and claimed the fund as personal property.

Another case where conversion was accomplished by the aid of the court is that of Jacobus v. Jacobus, 9 Stew. Eq. 248. In this case it was held that where, on a bill filed for the partition of lands, they are sold under the statute, and a defendant, without filing plea or answer, accepts of all she is entitled to except her own share of the portion invested for a brother during his lifetime, under the will of their father, all her interest is thereby converted into personalty. This question was also before the court of errors and appeals under the title of Cox v Roome, 11 Stew. Eq. 259, in which the disposition of the same fund came under discussion. At the conclusion of the opinion of the court (at p. 261¡), the chief-justice said: I was also instructed by this court to state that, although there is a contrariety of opinion among the judges upon the subject, according to the views of a majority of the members, the ground upon which the case was put in the court below should be sustained, to the effect that, under the circumstances, there was a conversion of the realty, out and out, and that, consequently, the appellants, as heirs-at-law, are not entitled to the fund in question.”

Iii both of these eases the decision of the court was controlled by the fact that the persons interested in the proceeds of sale had signified their consent to, or had acquiesced in, the action of the court which directed the sale.

In Ware v. Polehill, 11 Ves. 257, the same question was before Lord-Chancellor Eldon, and (at p. 878) he made these observations : “ I have uniformly made it a rule, since I have sat here, where property of one nature has been applied for the benefit of an infant to property of another nature, to have an express provision that, if he shall not attain the age at which he shall have a disposable power, the representative shall not be prejudiced in any degree by the act done by the court in contemplation of the infant’s benefit, in all the circumstances surprise or accident can throw around it. First it is said this is the effect of the court’s declaration; but if the court forgets to make that declaration, the same rule does not obtain; and the court has ■disposed of the property by an imperfect judgment in another manner, and subject to different equities. That is not correct, for the declaration is made, because that is the law applicable to the case of the infant; and it is, of course, to reform the order.”

In the case of Ex parte Phillips, 19 Ves. 118, the same principles were reaffirmed by the same lord-chancellor with no little emphasis. In this case he very clearly pointed out the origin and nature of the different powers exercised by the court of chancery in dealing with the property rights of infants and lunatics. He said: In the case of the infant the lord-chancellor is acting as the court of chancery; not so in lunacy, but under á special, separate commission from the crown, authorizing him to take care of the property and for the benefit of the lunatic. In the case of the infant it is settled that, as a trustee out of court cannot change the nature of the property, so the court, which is only a trustee, must act a's the -trustee out of court and finding that a change will be for the benefit of the infant, must so deal with it as not to affect the powers of the infant over his property, even during his infancy, when he has powers over one species of property, not over the others. It may be for the benefit of the infant in many cases, that money should be laid out in land if he should live to become adult, but if not it is a great prejudice to him, taking away his dominion by the power of disposition he has over personal property so long before he has it over 2'eal estate. The court, therefore, with reference to his situation, even during infancy, as to his powers over property, works the change, not to all intents and purposes, but with this qualification, that if he lives he may take it as real estate, but without prejudice to his right over it during infancy as personal property.”

These cases were both considei’ed subsequent to that of Oxenden v. Lord Compton, 2 Ves. Jr. *69, upon which the counsel of the defendant greatly relied in his claim that the $200 should be treated as personal property. They are not in conflict with that case, but explanatory of the different grounds upon which the court proceeds in the different cases.

The doctrine recognized by the court of errors and appeals in the case of Snowhill v. Snowhill, supra, and which was sustained by way of argument in the case of Oberle v. Lerch, supra, I think is abundantly broad to include and control the disposition of the sum of $1,320.64, last above named. The conversion which produced that sum was by compulsory proceeding, authorized by legislation in favor of railroad corporations. In England it has been declared that in such case no conversion is effectual as against infants. Kelland v. Fulford, 6 L. R. Ch. Div. 491. Nor against a lunatic. Dixie v. Wright, 32 Beav. 662; In re Wharton, 5 De G., M. & G. 33. Nor as against a felon who was convicted and transported. In re Harrop, 3 Drew. 726, 3 Jur. (N. S.) 380, 26 L. J. Ch. 516; see, also, In re Baget, 31 L. J. Ch. 772, 6 L. T. (N. S.) 774; In re Stewart, 1 Sm. & G. 32, 16 Jur. 1063.

The cases show that where the conversion is compulsory, i. e., against the will or without the consent of the owner, the fund will be treated as real estate until the owner, being sui juris or of disposable capacity, manifests a willingness to accept it as pei’sonal.

The $80 must be controlled by a different rule. The parties claiming it were, at the time of the sale, sui juris, and undertook to convey to and secure the entire fee (including that of the infant) in the grantee'. The $80, which represented the supposed interest of the infant, was paid to her guardian. . The complainants have not the shadow of a right to claim the proceeds of that transaction, which represented the interest of the infant as real estate. I will advise a decree in accordance with these views.


author: Bird, Y. C.

text:
    The Commissioners of Public Instruction of the City of Trenton v. Claude E. Fell et al.
    The provisions of the act which declares “ That any person or persons who shall hereafter, as laborer, mechanic, merchant or trader, in pursuance of or in conformity with the terms of any contract for any public improvement made between any person or persons and any city, town, township or other municipality in this state, authorized by law to make contracts for the making of any public improvement, perform any labor or furnish any material towards the performance or completion of. any such contract made with said city, town, township or other municipality,” extend to and include school districts.
    On final hearing.

      Mr. Edwin Robert Walker, for the complainants.

      Mr. John H. Baches, for the defendants Fell & Baker.

      Mr. Peter Baches, for the defendant William J. Backes, assignee.
   Bird, Y. C.

The complainants show that they had entered into a contract for the building of a public school building, and that a balance of about $1,800 due upon the contract remained in their hands, and that there was a dispute between the defendants as to which of them was entitled thereto, and asked that they might pay it into court, and that the defendants might settle the matters in dispute between themselves. The money was ordered to be paid into court.

Fell & Baker filed a lien under the act passed March 30th, 1892, and claim that, by virtue of that act, they are entitled to all of said moneys. The act provides

“That any person or persons who shall hereafter, as laborer, mechanic, merchant or trader, in pursuance of or in conformity with, the terms of any .contract for any public improvement made between any person or persons and .any city, town, township or other municipality in this state authorized by law to make contracts for the making of any public improvement, perform any labor or furnish any material towards the performance or completion of any such contract made with said city, town, township or other municipality, on •complying with the second section of this act, shall have a lien for the value ■of such labor or materials, or either, upon the moneys in the control of the ■said city, town, township or other municipality, due or to grow due under said contract with said city, town, township or other municipality, to the full value of such claim or demand.”

It will be perceived that the act treats of cities, towns, townships or other municipalities, all of them being classified under this head. If the school district over which the complainants were commissioners can be brought within this classification, then Fell & Baker are entitled to a decree. The act speaks of cities, towns, townships or other municipalities, plainly intending to bring within the operation of the act all such improvements, whatever might be the real nature of the corporation, provided it could reasonably be considered a municipality.

It is urged upon the part of the defendant Backes, who is the .assignee of Skillman & Vansant, that the school district is not a municipal corporation, but rather simply a quasi public corporation, and seeks to make a material distinction between the two. The act itself forbids any such narrow construction, since by its very terms it includes towns and townships. Whatever the 'technical definition of towns and townships may be, in strict legal parlance, the object or intent of the legislature to place ■towns and townships upon the same footing with cities, which .are purely municipal in their character, is so plain that it cannot be resisted.

The fact that towns and townships are classified as municipal corporations goes very far towards ipcluding school districts. A school district is a part of the machinery of government, as much so, to all intents and purposes, as a town or township. When the moral and intellectual interests of the people are considered, a school district may well be regarded as ranking as high in importance as that of any other territorial division. Through its agents it deals both with the property and the liberty of citizens; more than this, towns and townships do not do.

Besides this, the act entitled “An act to establish a system of public instruction provides for the creation of school districts, and for the election of trustees therein and the appointment of a clerk for the board of trustees, who is required to keep a minute of all the proceedings of such board, and declares as follows:

“Every such school district shall be known by the name and number assigned to it by the county superintendent, * * * and the trustees thereof shall be a body corporate, to be known and called by the name of ‘The trustees of school district No. —, in the county of--,’ and shall be capable of suing and being sued in all courts and places whatever, and of purchasing, holding and conveying real and personal property for the use and benefit of the schools of such district, and may have a corporate seal.”

After this explicit legislative expression, it would seem entirely useless to cite authorities holding that school districts may properly be regarded as quasi corporations. In the case of State v. Troth, 5 Vr. 386, the court said : “ The legislature may create special and limited jurisdictions for the convenience of local government within the territory of the township, without creating such district a separate municipality. Incorporated school districts, under our statute, are instances of corporations with the power to hold lands, direct the levy of taxes and adopt regulations for the management of schools in their corporate capacity, within limits defined for that purpose. Indeed, our system of incorporating towns within counties furnishes a familiar illustration of one corporation with municipal powers within another of larger extent, having powers of the same nature, though for different objects.” I think that the language used by the court in this case wholly dissipates the argument, insisted upon by counsel for the assignee, that since school districts are not mentioned in the act, they cannot be regarded as included within its meaning, because of the use of the phrase “ other municipalities.” . It is manifest, from the language used in the above quotation, that the court used the word municipal' with reference to precisely such organizations. Commissioners v. Horner, 19 Vr. 444; Dobbins v. Northampton, 21 Vr. 497.

“A municipal corporation, in its strict and proper sense, is the-body politic and corporate constituted by the incorporation of the inhabitants of the city or town for the purposes of local government thereof. Municipal corporations as they exist in this country are bodies politic and corporate of the general character above described, established by law, partly as an agency of the-state to assist in the civil government of the country, but chiefly to regulate and administer the local or internal affairs of the city, town or district which is incorporated.” 1 Dill. Mum. Corp. p. 38. In the same connection the same author says that the phrase “municipal corporations is also used in a still broader sense which includes public or quasi corporations.” 1 Dill. Mun. Corp. p. 39.

The courts of other states have taken the same view of the municipal character of school districts as our own courts have. Andrews v. Estes, 11 Me. 267.

In Gaskill v. Dudley, 6 Metc. 546, Chief-Justice Shaw said: “School districts, so far as they are corporations, are corporations of the same kind as towns, organized for the same purpose, charged with the same duties.” Whitney v. Stow, 111 Mass. 370; Connell v. Woodard, 5 How. 665.

I conclude, therefore, that the school district in which the complainants in this case are commissioners is within the provisions of the act of March 30th, 1892. It was conceded upon the argument that if I came to this conclusion, Fell & Baker would be entitled to the preference which they claim by virtue of their lien. ■ I -will so advise.


text:
    Thomas S. Hattersley v. Jane A. Bissett et al.
    1. When it appears that the personal estate has been exhausted and that there is a fund in this court, the proceeds of the sale of real estate, an executor may directly apply by petition for an order for so much of the said moneys .as may he necessary to pay the balance of the debts due from the estate of which he is executor.
    2. One of two executors may apply to this court for moneys in the hands of the court, to pay undisputed claims when any sufficient reason appears for not joining the other executor.
    3. The rule is that, where a testator directs the payment of his debts and funeral expenses, and specifically devises portions of his real estate, and then gives and devises all the rest and residue of his real and personal estate whatsoever and wheresoever to two of his children, one of whom dies in his lifetime, in consequence of which the devise lapsed and descended to the heir-at-law, it not appearing that the testator left any personal estate, all of the lands included in the said residuary devise, as well those taken by the surviving devisee as those which descend in consequence of the death of .the other devisee, are equally liable to the discharge of the debts and costs and expenses incurred in the settlement of the estate.
    4. Commissions for services will not be allowed one of the tenants in common when it appears by proceedings in equity that he claims the entire fee and also that he rents the premises in his own name.
    On petition of Edward P. Bissett, executor.

      Mr. John II. Baches, for the complainant.

      Mr. Woodbridge Strong, for the defendants.
   Bird, V. C.

The question presented for determination in this case arises upon the application for the distribution of the proceeds of the sale of real estate in partition. Charles Hattersley, being the ■owner of considerable real estate, died, leaving a last will and testament. He expressly directed that his executors should pay all his debts, and funeral expenses except certain mortgage debts, which he especially provided for. After making disposition of the greater portion of his real estate among his children and grandchild, he declared as follows:

“All the rest and residue of my estate, both real and personal, whatsoever aad wheresoever situate, I give, devise and bequeath to my two daughters, Elizabeth Hattersley Cherry and Jane Alice Hattersley, and to their heirs and assigns forever, to be divided equally, share and share alike.”

Mrs. Cherry having died in the lifetime of the testator, the devise to her lapsed, and the interest which she would have-taken had she survived the testator, descended to Jane Alice Hattersley (now Bissett) and to her two brothers, Thomas S. and Charles M. Hattersley. The lands thus held by them were sold under proceedings for partition.

A caveat was filed against proving the said will, and upon the hearing in the orphans court and in the prerogative court, certain expenses were incurred and counsel fees allowed, which were ordered to be paid out of the estate, the whole amount being. $746, $600 of -which were the counsel fees.

Edward P. Bissett, one of the executors, comes into this court by his petition, setting up the fact that these counsel fees and the additional expenses referred to have not been paid, insisting that they are a proper charge upon the funds resulting from the proceeds of the sale of the real estate, and asking for an order directing the payment of them before final distribution is made of the entire fund. The principal matters respecting the rights of the parties were set forth in the allegations of the answer by way of cross-bill to the original bill for partition.

It is urged, by way of objection to this petition, that it is filed by one of the executors only. To say nothing about the allegations of very great hostility upon the part of Thomas, the other executor, to the probate of the will and to his co-executor,, enough appears in the principal case to' satisfy the court that Mr. Bissett was justified in presenting the petition in his own name, without soliciting the co-operation of Mr. Hattersley, the other executor. But in my judgment, independent of any such question, when nothing is involved but the appropriation of moneys already in hand to the discharge of an unquestioned liability, a single executor may ask the aid of the court for that purpose, especially when the other executor is personally interested in the fund and is brought into court so that he can answer and protect the fund in which he is interested, in its entirety. Personette v. Johnson, 13 Stew. Eq. 173.

The objection that this court has not jurisdiction of the subject-matter cannot prevail. The only fund out of which this claim can be satisfied is under the control of this court, and it certainly will not refrain from acting.

Nor will it remit the parties to any other tribunal.

It was also claimed that, because the testator did not direct that the expenses of settling his estate should be paid, as well as his debts and funeral expenses, that therefore these counsel fees and other expenses incurred in litigation could not be imposed upon the real estate. It is a sufficient answer for me to say that the orphans court and prerogative court on appeal, both having jurisdiction of the subject-matter, expressly charged that these counsel fees should be paid out of the estate of the said testator. How cau there be any doubt but that the law made these charges a burden upon all his estate ? Personette v. Johnson, supra.

Counsel for Mrs. Bissett insisted that, since Mrs. Cherry died in the lifetime of the testator, and the devise to her lapsed and descended to the heirs-at-law of the testator, the entire burden of costs and expenses necessary to settle the estate should be borne by the lands so descending, and that no part of it should be borne by the lands which were specifically devised in the residuary clause to Mrs. Bissett.

There is no doubt but that where the testator leaves no personal estate and makes no express provision for the payment of his debts and the expenses of settling his estate out of his real estate, and devises portions of his real estate, dying intestate as to the balance, the lands which are not devised will be liable to the payment of such debts and expenses in the hands of the heir-at-law. But a different rule prevails when the testator has disposed of all his real estate, specifically giving the residue to different persons, one or more of whom die. in the lifetime of the testator, no provision having been made to prevent a lapse in such an event. Plainly stated, I think the rule -is that -where a testator directs the payment of his debts and funeral expenses and specifically devises portions of his real estate, and then gives and devises all the rest and residue of his real and personal estate whatsoever and wheresoever to two of his children, one of whom died in his lifetime, in consequence of which the devise lapsed and descended to the heir-at-law, it not appearing that the testator left any personal estate, all of the lands included in the said residuary devise, as well those taken by the surviving devisee as those which descend in consequence of the death of the other devisee, are equally liable to the discharge of the debts and costs and expenses incurred in the settlement of the estate. Fisher v. Fisher, 2 Keen 610; Ryves v. Ryves, 11 L. R. Eq. Cas. 639 (40 L. J. Ch. 252); Wood v. Ordish, 1 Jur. (N. S.) 584; Stead v. Hardaker, L. R. 15 Eq. Cas. 175 (5 Eng. Rep. 789).

Besides, it was the very clear intention of the testator to charge all the estate devised by the residuary clause with the payment of his debts, funeral expenses and the settlement of liis estate.

Whether Charles M. is entitled to compensation for renting the premises and for his care and management thereof, depends upon the further question whether or not all his transactions with reference to this property were not in hostility to the interests of his sister, Mrs. Bissett, and of such a character as, in the eye of the law, to amount to an ouster. In his amended bill he alleges that because, after the making of the last will by his father, his father conveyed certain other parcels of land and premises to Mrs. Bissett, by doing which he intended that Mrs. Bissett should surrender all her interests under the will in any other lands therein devised to her, and that, consequently, the complainant charged that he and his brother, Thomas S., were the owners in fee of all the premises mentioned in' the bill of complaint in this cause. In addition to this, Charles and his brother rent the premises in their own names, wholly ignoring every right or interest of their sister. Under such circumstances, would it be equitable to charge the sister with any commissions for services rendered which she never authorized or in anywise consented to, and which were earned in total disregard and rejection of her rights ? This case does not seem to be at all like that of Sailer v. Sailer, 14 Stew. Eq. 401, in which case compensation was allowed. In that case, the tenant in common, who had the entire possession, honestly supposed that he had the entire fee. It would, not seem to be equitable to allow compensation to a party who takes possession of land, claiming it as his own, against others who afterwards establish their rights to be tenants in common with him.

In such case, justice will be satisfied by reimbursing Charles ■ for all the moneys actually expended in necessary repairs. If there be any dispute as to what moneys were so expended, that will be settled when the decree is presented.

Mrs. Bissett is entitled to costs on her answer and cross-bill.

I will advise a decree in accordance with these views.


author: Pitney, V. C.

text:
    Margaretta C. Harney et al., executors of William Harney, deceased, v. The First National Bank of Jersey City et al.
    1. When land held by partners as tenants in common is purchased with firm funds, though charged at the time to the partners individually, but upon the opening of a real estate account on their books is charged back and each partner credited with his proportion of the price, and thereafter it appears in the annual statement of assets and liabilities of the firm, such land is a firm asset.
    2. The equity of each partner to have such land applied primarily to the payment of firm debts is superior to the lien of individual judgment creditors who have levied thereon.
    3. When the record of title to lands does not disclose a trust in favor' of a firm, a partnership may maintain a bill to restrain a sale of such land under a judgment rendered against one of the partners individually.
    Heard on bill, answer and proofs.

      Mr. Gilbert Collins, for the complainants.

      Mr. Flavel McGee and Mr. Joseph D, Bedle, Jr., for the bank.

      Mr. James B. Bowen, for Bowen, assignee.
   Pitney, V. C.

The bill is filed by the executors of a deceased copartner against the surviving copartner and his judgment creditors. Its object is to subject to the liquidation of the partnership debts, including the equities of the complainants on a settlement of the partnership accounts between them and the surviving partner, a certain parcel of real estate the title to which stood upon the records in the name of the deceased partner and his survivor as tenants in common.

Three questions are to be solved. First. Was the lot of land in question partnership assets ? And, second, if so, is the right of the judgment creditors superior to that of the complainants? Third. Are'the complainants in a position to assert their equity ?

I. The facts are that the testator, William Harney, and his son, the defendant William A. Harney, some time prior to the year 1870, entered into copartnership under the firm name of William Harney & Son, for the purpose of carrying on the business of general real estate dealers and agents and insurance brokers. The father was a man of considerable means, while the son had little or nothing, but their interest in the profits of the business was equal. Some time prior to February, 1871, Mr. J. D., Jr., had, at the request of the firm, purchased the lot in question, described as Lot No. 88, Block 339, and afterwards known as 379 Grand street, Jersey City, paying for it out of his own money, but upon the understanding that the firm should become jointly interested with him in the purchase. On the 7th of February, 1871, he conveyed two equal undivided one-third parts of the tract to William Harney and William A. Harney, as tenants in common. There is nothing on the face of the deed to indicate that it was intended to be held by them as .partners. It was, in fact, paid for with partnership moneys, and.the son, who was bookkeeper for the firm, in order to make his boobs balance, charged one-half of the cost to his father and one-half to himself. That was the first purchase of real estate made by the firm, and up to that time they had no account with “real estate” opened on their books.

The account stood in that shape until the year 1875, when the firm made further and quite extensive purchases of real estate, and at once opened an account with “ real estate,” and charged to it the cost of all their recent purchases, and also two-thirds of the lot in question at a valuation of $2,000, and in the. statement of assets and liabilities of the firm made up December 31st, 1875, the lot appears among eight or ten others, and is appraised at $2,000 for the two-thirds interest. At the same time each of the partners was credited on his ledger account with one-half of that sum, or $1,000 for one-third of the lot in question. All the entries in the books are in the handwriting of "William A. Harney, and in his account on the ledger of William Harney & Son, at the head of which are the words “ William A. Harney,” is found, under date of December 31st, 1875, a credit as follows: Cash for one-third Lot 88, Block 339 [the lot in question], $1,000.” It was so carried, appearing in each one of the annual statements of assets and liabilities, rintil' the death of William Harney, which occurred- April 7th, 1890. In the meantime divers improvements had been made upon it at the expense of the partnership, most of them before it was actually carried to real estate account. All the rents were put into partnership account, and the taxes, repairs and improvements paid out of partnership funds, and on the 31st of December, 1889, it appears in the annual statement of assets and liabilities at a valuation of $2,333.33. «

This evidence, which is quite similar to that in Baldwin v. Johnson, Sax. 441, shows in the clearest and- most satisfactory-manner that this was partnership property. The entry on the books of the firm, made by William A. Harney, of a credit to himself of $1,000 for his share in the land, amounted to a sale and conveyance in equity by him to the firm for cash paid! And while the authorities seem to hold that parol proof is cbmpetent to prove that real estate standing in the name of either one or all of the partners of the copartnership as individuals is actual partnership property, it is unnecessary to resort to that doctrine in this case, because the entry on the ledger in the handwriting of William A. Harney, in which he credits himself with the price of one-third of this lot, is a part of other entries at the head of which stands the name' “ William A. Harney,” in William A. Harney’s handwriting, and the authorities seem to be clear that such an entry is sufficient. Newkirk v. Place, 2 Dick. Ch. Rep. 477 (at p. 486), and cases cited.

At the death of William Harney, April 7th, 1890, the partnership as such was insolvent according to a statement on the books made up at that time, but the estate of William Harney was worth in the neighborhood of $100,000. The total indebtedness of the firm was $7,996.88, composed of four items, one of which was $1,500 due to the defendant .the First National Bank of Jersey City. The total value of the assets, including the two-thirds interest in the lot in question, was $4,783.22, leaving a deficiency of $3,213.66, which was balanced on the books by dividing it between each of the partners — $1,606.83 to each.

William A. Harney was entrusted to settle up the affairs and realize upon the assets, and pay the debts so far as they were sufficient for that purpose. Subsequently the executors of Harney advanced moneys enough to pay the $1,500 due the First National Bank and something on account of the other debts.

At the date of William Harney’s death, the books show that he owed to the firm a trifle more than his son William did, but the subsequent advances made by the executors to pay the debts of the firm render the balance as between the estate and William A. Harney largely in favor of the estate.

The advances of the executors of cash to pay debts are, in some instances, entered in the books as loans, but such entries do not alter the intrinsic character of the transaction, which was a payment by the personal representatives of a deceased partner of partnership, debts for which his estate was clearly liable. Besides, not all the debts were paid, and enough remain to show a clear equity in the complainants to have the partnership property applied to their payment.

II. William A. Harney failed early in 1893, and on the 17th of March, 1893, the defendant Bowen, as assignee of Clark & Demarest, recovered a judgment against him for $399.29, and on the 7th of June, 1893, the Eirst National Bank of Jersey City recovered a judgment for $4,061.55, and subsequently, on the 14th of August, 1893, the bank recovered a further judgment against him for the sum of $1,638.46. Upon this last judgment execution was issued and returned unsatisfied. William A. Harney was then examined under supplementary proceedings, and upon such examination his interest in this property -was discovered, and an alias execution was issued and duly levied upon the lot in question, and it was advertised for sale.

The defendants contend that, by virtue of their several judgments and levies, they acquired a lien upon the one-third interest of W. A. Harney, which is superior in right to the equity of the executors of the deceased partner. They do not deny that the executors have an equity, but they say it is a secret one and must yield to the statutory lien of a judgment.

The general rule is that an equity of this sort is superior to that of a judgment creditor or any other party acquiring an interest from the holder of the legal title, except it be a bona fide purchaser for value. The principle is that the lien of a judgment reaches only such right as the defendant in execution has in the property, subject to all equities against it, The holder of the legal title of real estate which constitutes part of the assets of a partnership, holds it in trust for the firm, “ so far, at least, as may be necessary to pay the partnership debts and adjust the equities between the partners.” Pillsbury v. Kingon, 4 Stew. Eq. 619 (at p. 625), and cases cited; Lind. Pari. p. S51 et seq.; and see remarks of Mr. Justice Dixon in Arnold v. Hagerman, 18 Stew. Eq. 186 (at p. 197). This trust in favor of the firm results from the mere fact that the. land was bought and paid for with partnership funds for partnership purposes, and is a part of the partnership property. The doctrine is quite familiar and perfectly well settled.

The effect of this trust upon the rights of the parties is thus dealt with by Professor Pomeroy (2 Eq. Jur. § 685):

“ The equitable interest created by a trust or by a contract in rem, made upon a valuable consideration, is superior to the equity arising from a mere voluntary transfer, amere gift, or from a mere judgment lien. In contemplation of equity, the interest created by a trust, or' by a valid executory contract of sale, or by a valid contract giving rise to a lien, or by an act in connection with such a contract constituting a lien — as, for example, a deposit of title deeds — is a real, beneficial interest in the specific thing itself — an interest which is property or analogous to property; and, although such interest is not recognized by the law, it is treated by courts of equity as actually subsisting, and as binding upon the conscience of the original party who held the thing and who created the interest. On the other hand, while the interest acquired by a transfer without consideration, by a voluntary gift, may be protected if it does not interfere with third persons, yet the voluntary transferee or donee can only receive whatever interest the donor was actually entitled in conscience and good faith to bestow ; he never obtains, even as against the donor, and much less as against third persons dealing with the donor in respect to the same thing, any paramount right of his own. The consideration on the one side and the absence of it on the other lie at the very bottom of the equitable theory concerning actual rights. -The lien of a judgment is analogous to the claim of a donee; it is general, not specific. The beneficiary under a trust, the vendee under an agreement, the holder of a lien created by a contract in rem, deals concerning a specific thing; he parts with the consideration upon the security of that specific thing; he obtains an equitable interest in that specific thing. The judgment creditor has not dealt with that specific thing; he has not parted with value in contemplation of it; his lien is general and not confined to it. It is just, therefore, that, so far as their intrinsic natures are concerned, his claim should be considered as inferior to the interest arising from a trust or from a contract in rem. His lien only extends to what his debtor really has — that is, to the thing subject to all the equities in it existing at the date of the judgment.”

And again (§ 721):

“Judgment creditors are not1 purchasers ’ within the meaning of the recording acts, and unless expressly put upon the same footing, they do not obtain the benefit which a subsequent purchaser does by a prior record. The equitable doctrine is that a judgment and the legal lien of its docket bind only the actual .interest of. the judgment debtor, and is subject to all .existing equities which are valid as' against such debtor.” - ' ■ '

Chancellor Walworth, in Buchan v. Sumner (decided in 1847), 2 Barb. Ch. 165 (at p. 207), says: “The general lien of a judgment creditor upon the lands of his debtor is subject to all equities which existed against such lands in favor of third persons at the time of the recovery of the judgment. And the court of-chancery will so control the legal lien of the judgment creditor as to restrict it to the actual interest of the judgment debtor in the property, so as fully to protect the rights of those who have a prior equitable interest in such property or in the proceeds thereof.”

And the supreme court of Ohio, in Page v. Thomas, 43 Ohio St. 38 (1885) (at p. 44), speaking of a judgment, says: “ The statutory, lien of Page does not give rise to any question as to the rights of a bona fide purchaser. By such lien, or by levy, the judgment creditor acquires only the interest of his debtor in the premises. While, therefore, a mortgagee without notice, finding the legal title in the names of the individual partners, lends money and takes a mortgage on the premises, will be protected as a bona fide purchaser, a judgment creditor can make no such claim.” And see 2 Freem. Judg. § 357; In the Matter of Howe, 1 Paige 125.

The case of Buchan v. Sumner, supra, is. an instructive one. There two partners owned real estate which formed part of the partnership assets, but which stood in their names as tenants in common. They dissolved partnership, and the unsettled accounts between them, resulted in a judgment by one partner against the other for a large sum of money. Execution was issued upon this judgment and a levy made upon the interest of the defendant in execution in the partnership land, but owing to an error in the docketing of the judgment the lien was not perfected and was declared void, so that a subsequent judgment recovered against the individual partner (the defendant in execution in the earlier judgment) became a lien at law upon his share in the property subject only to a' prior mortgage. The contest then arose in equity upon the disposition of the surplus proceeds of the sale of the land upon the foreclosure of this mortgage, and was between the equity of the partner based upon a debt due him on partnership account from his copartner and a judgment creditor of such partner. Chancellor Walworth, after a thorough examination of the subject and all the adjudged cases in this country up to that date, came to the conclusion that the equity of the partner was superior to that of the judgment creditor.

To the same effect was the decision in Page v. Thomas, supra.

The well-settled and only ground upon which a person dealing with the holder of the title of real estate, subject to a secret trust of which he has no notice, is permitted to obtain from him a title clear of the trust, is that he parts with something of value on the strength of the apparent ownership of the land. This is the very essence of the doctrine of bona fide purchaser. The rule is universal in equity, that in order to constitute a person a bona fide purchaser for value, he must have parted with something either in the way of money or valuable thing, or of a right of action, or have given up some lien which he already had, or assumed some new obligation. He must have altered his posh tion irretrievably in “ actual reliance ” upon the apparent title of the other party to a particular piece of property. 2 Pom. Eq. Jur. §§ 745, 747; Bassett v. Nosworthy, 2 White & T. Lead. Cas. (4th Am. ed.) pp. 82, 83.

Now, a mere judgment creditor is not clothed with this armor. He has parted with nothing on the strength of the apparent title of his debtor in any particular parcel of property. Such apparent ownership has not misled him to his injury. He maybe disappointed, but mere disappointment does not amount, in legal contemplation, to injury.

In the case in hand it appears affirmatively that neither of the creditors knew that the debtor had the title to this land until after they had obtained judgment. But if they had acquired such knowledge previous to the credit, or to bringing suit on their debts, the situation and rights of the parties would not be changed, for the mere giving general credit on the strength of the apparent ownership of the property does not constitute one a bona fide purchaser. Nor does the incurring the expense of a suit at law create an estoppel. Phillipsburg Bank v. Fulmer, 2 Vr. 52 (at p. 55).

This lack in a mere judgment creditor of the essential elements of a bona fide purchaser was pointed out by Chief-Justice Beasley, speaking for the court of errors and appeals, in Herbert v. Mechanics’ Building and Loan Association, 2 C. E. Gr. 497 (at pp. 499, 500). He says: “As introductory to all reasoning on this subject, it is proper to premise that judgment creditors do not occupy the vantage ground of bona fide purchasers for a valuable consideration, without notice. * * * He who pays

the price on a sale, justly and with honest intentions, acquires, in natural morality, the highest possible title to the thing purchased; and it has, at least in modern times, been considered highly promotive of the public welfare, that the circulation of property should be free from secret liens and latent trusts. Hence the doctrine, so much favored in a court of equity, of the inviolable nature of the defence of a bona fide purchaser, without notice, for a valuable consideration. But a creditor who has done nothing more than to convert his debt, subsisting in the form of a contract, into a judgment, has no claim but that of diligence, to the favor of equity. Neither natural justice nor public policy enacts a preference for him over adverse claimants.. He has consequently never been treated as a purchaser for value. He can, under his judgment, levy execution on all that belonged to his debtor, but he can take nothing more. He simply represents the debtor, and he takes the property as the debtor held it.. This is the language of the authorities,” citing them.

I should have thought these principles so fundamental and familiar, and their application here so simple, as to require no elucidation or defence but for the fact that the court of our neighboring State of Pennsylvania has adopted a different rule, as shown in a long line of adjudged cases much relied upon in argument by the counsel of the defendants. This line of cases starts with McDermott v. Lawrence, 7 Serg. & R. 438 [1821), where the contest was between the creditors of a firm of partners and a creditor of one of the partners whose debt was secured by a mortgage upon the share of that partner in real estate held by the partners as tenants in common, the mortgagee having no .notice that the mortgaged premises were partnership property. The mortgage was giyen preference, though the learned judge seemed to overlook the circumstance that it was given to. secure a pre-existing debt.

. This case was followed by Hale v. Henrie, 2 Watts 143 (1834). That was an action of ejectment in which the plaintiff claimed title to an undivided share in the property by virtue of a sheriff’s deed' to himself, founded upon a judgment in his favor, against a person who held the title to the premises as tenant in common with another, and the defence was that the title of the defendant in execution was subject to a trust in favor of the members of a partnership, of which he was one, and who held the title as partners. This defence, which, though equitable, was available' .at law in that court, was disposed of as follows (at p. 145):.

The title set up by the defendant professes to be paramount do" that of Henrie in his separate capacity, and to defeat the ■plaintiff’s execution, by showing that, although the deed to ■ Capp and Henrie was to them as tenants in common, and therefore, on its face, each held an undivided moiety; yet, in fact, ■ they held the property as partners, pledged to partnership creditors, in exclusion of the plaintiff, who was a separate creditor •of one partner. Such a trust or ownership of the property is ■■inconsistent with the .title on record, which is vested in them as ■tenants in common. To permit a. person, apparently owning ■ property as an individual, to aver a different right in himself as ¡partner, by which his relations to creditors and others are to be •affected, would defeat the statute of frauds and perjuries, by which no interest in real estates (except a lease for a short period) ■can vest or be transferred without deed or' writing. It would •even be worse than to pass real estate without writing, since a •deed would thus express one thing and mean another; and our .recording acts, instead of being guides to truth, would be no •better than snares. The policy of the recording acts, which "began with the settlement of the state, and which long experi- • ence has proved to be beneficial, is to render the manner in which an interest or right in real estate is held,, in every respect ■ open and notorious. ; They require all deeds or writings which ■may affect lands to be. placed on record, and,-as the statute of frauds forbids such interest to be held or transferred without' deed or writing, the system is thus complete. No averment of .any right by parol, or by, what is still less, the nature of the fund which pays, or the uses or purposes the property is applied to, can be allowed to stamp a character on the title inconsistent with that appearing on the deed and record, to the prejudice •of third persons. * * * The money with which Capp and Henrie purchased the property was their own. They could ¿appropriate it as they pleased, and they chose to appropriate it to a purchase for themselves individually and not as partners. Having done so, it cannot be defeated by proving, otherwise than by deed or writing, that they held as partners. If a person should employ his own money in purchasing land and take the deed to himself, it could not be pretended, under our statutes, that another would acquire a title to it by proving that such person had intended the land for him, however strong the evidence of parol declarations or acts in pais might be, short of part performance by delivery of possession. * * * In conformity, therefore, with the suggestion of Chief-Justice Tilghman, in M’Dermott v. Lawrence, supra, after a review of the American and English cases on the subject (and, I think, in accordance with the course of legislation in Pennsylvania on the modes of acquiring title to real estate), where partners intend to bring real •estate into the partnership stock, wre think that intention must be manifested by deed or writing, placed on record, that purchasers and creditors may not be deceived.”

It seems to me quite sufficient to say of this statement, that if is palpably not the law in New Jersey, either as to the effect of •our registry laws upon the doctrine of resulting trusts, or as to the allegation that the proof of a trust must be registered as a conveyance, or in so far as it ignores the distinction between the rights of a bona fide purchaser for value and a mere judgment creditor.

Our recording statutes do indeed declare that unrecorded deeds of conveyance absolute of land (Rev. p. 155 § 14), andunreeorded deeds of mortgage or conveyances in the nature of mortgages of lands (Rev. p. 706 § 22), shall be void as against subsequent judgment creditors and bona fide purchasers and mortgagees for value.

But these provisions do not, by their terms, include resulting trusts or other purely equitable rights or liens, and they have never, so far as I am informed, been construed by our courts to have such effect.

The subject-matter of the legislation of which they form a part is the providing for the acknowledgment, proof of execution and recording of deeds &c.; and it would be a great stretch of the power of construction to hold them to extend to rights-which, from their very nature, are incapable of record. See, on this subject, Martin v. Bowen, 6 Dick. Ch. Rep. 452.

The reasoning, however, which excludes mere judgment creditors from the position of bona fide mortgagees, except when expressly given that position by the statute, does not apply to-purchasers for value without notice (other than the plaintiff) upon executions upon judgments. Such purchasers have all the-qualifications of bona fide purchasers for value, and are protected as such. 2 Pom. Eq. Jur. § 724. Just here is the error in the-doctrine of the case just cited. It fails to distinguish between the plaintiff in a judgment purchasing at his own sale under it and paying nothing, and a stranger making such purchase and paying his money for the conveyance.

This case (Hale v. Henrie) was followed and its doctrine adopted without question in Ridgway, Budd & Co.’s Appeal, 3 Harris 177 (1850), and by several more recent cases; so that it is now settled law in Pennsylvania that a judgment creditor, without notice, stands upon the same high basis as a bona fide purchaser, and is not affected by any parol trust.

For the reasons already stated, I am unable to follow these cases.

III. The next question is whether the complainants are in a position to enforce their equity.

It is insisted that, to give them standing in this court, they must either have established their claim by a judgment at law, or the subject-matter of the suit must have been brought within the jurisdiction of the court by a decree of dissolution and judicial seizure of the assets prior to the judgment.

Neither of these positions is tenable. While it is well settled that a mere creditor at large of the firm has no standing in this court to prevent an improper application of the firm’s assets— Young v. Frier, 1 Stock. 465 — it is equally well settled, as I think, upon the plainest principles, that a partner, as such, may maintain such a suit in this court by virtue of his equitable right or lien in the property in question. Deveney v. Mahoney, 8 C. E. Gr. 247 (at pp. 249 (bottom), 250), and cases cited; to which I add 1 Mad. Oh. Pr. 135; 1 Story Eg. Jur. § 678 and cases cited; Beaven v. Lewis, 1 Sim. 376; Kerr Inj. 169; Lind. Part. 359; Greenwood v. Brodhead, 8 Barb. S. C. 593.

It was further contended that this court should not stop the sale under the judgment, since the judgment creditors are, upon complainants’ theory, entitled at least to hold their lien subject to the complainants’ superior lien, and to have what is left after satisfying their equity.

This is undoubtedly true, and if the conveyance to the partners in this case showed on its face that it was thereby devoted to partnership purposes, there would be force in the contention, at least as against complainants, since the purchasers at sheriff’s sale would take with notice, and all purchasers from them would hold subject to the same notice, because it was found in their chain of title. And this is the situation in cases of levy upon personal property, which is usually in the possession of the other partners, and their possession is standing notice to judgment creditors of one of the partners that the property levied upon is partnership property. But in this case the record of the title does not disclose the trust in favor of the partnership. The result is that, although the plaintiffs in execution would, if they became buyers at the sheriff’s sale, acquire no rights as bona fide purchasers, yet, as before observed, other parties purchasing at the sheriff’s sale and paying their money would be under no such disability. 2 Pom. Eg. Jur. § 724.

If it be suggested that complainants may protect themselves by giving notice of their equity at the sale, the answer is that to compel them to resort to and rely upon such a remedy would-be to compel them to rely upon matters in pais to preserve their rights. Besides, if either the defendants or a stranger acquire title to the share of William A. Harney, with notice of complainants’ rights, what will prevent them from conveying to a bona fide purchaser without notice? Justice Story (Story Part. § 264) considers this a controlling consideration; and see §§ 260, 263.

No harm is done to the judgment creditors by stopping the sale. ' Their lien will not be divested, but they will receive the-share, if any, remaining to their debtor after the due administration of the assets of the partnership.

I think the complainants are entitled to the relief prayed for, and that the sale should be stayed until the partnership debts are paid and the accounts adjusted, and will advise a decree accordingly.


text:
    Tillie Kyle v. William Kyle.
    Petitioner, within two years after she had been deserted by her husband^ sued him in New York, where both resided, for divorce a mensa el thoro, on the ground of cruelty, and obtained a decree accordingly. She subsequently acquired a residence in New Jersey and sued him here for divorce a vinevlo• malrimordi, on the ground of desertion. — Held, she was not entitled to relief.
    On final hearing on pleadings and proofs.

      Mr. Augustus H. Drury, for the petitioner.

      Mr. William Kyle, defendant, pro se.

   Pitney, V. C.

This is a petition for divorce, on the ground of desertion, Which is alleged to have occurred on the 2d of July, 1880.

The defendant answered, denying the desertion, and setting up as a further defence that in May, 1881, when both parties were residents of the State of New York, the petitioner herein brought an action against him wherein judgment was prayed for a separation from bed and board and for support and maintenance ; and that a decree of separation from bed and board,- in favor of the plaintiff and against the defendant, was accordingly made; and that in July, 1881, the petitioner, for a consideration, executed, acknowledged and delivered to the defendant a release by which she forever released and discharged him “ of and from all claim or claims which she now has against him for support, alimony, costs, counsel fees and disbursements” in that suit or in any other based upon the same grounds.

Afterwards, the defendant attempted to withdraw his answer,, but the chancellor deemed the withdrawal insufficient and ordered the cause to stand for hearing.

At the hearing the desertion was .sufficiently proven at the-time charged, and also the residence of petitioner in this state-for the necessary period. But it also appeared that on the 16th day of May, 1881, less than a year after the desertion, the petitioner brought her suit in the court of common pleas, in the city and county of New York, against the defendant, charging him with cruel and inhuman treatment of her, specifying the acts. The defendant answered that suit, denying the allegations of cruelty. The cause was referred to a referee, testimony was-taken and the referee reported thereon, that the defendant had been guilty of such conduct toward the plaintiff as to render it' unsafe and improper for her to cohabit with him, and, as a conclusion of law, that the plaintiff was entitled to a judgment of separation from bed and board from the defendant forever. On that report the court made a decree in these words: “It is hereby adjudged and decreed that Tillie Kyle, the above-named plaintiff herein, have a judgment of separation from the bed and board of William Kyle, the above-named, defendant herein, for the-cruel and inhuman treatment of her, the said plaintiff, by said defendant.” And it also appeared that she signed and executed the release set out in the answer, but she swore that it was imposed upon her by her counsel, and that she was not aware that she had signed any such paper.

It thus appears that the defendant has been living separate from the petitioner all these years in pursuance of the decree of a court of competent jurisdiction.

There was no evidence given before me in this case of such cruelty on the part of the defendant as would bring the case within the rule adopted and acted upon in McVickar v. McVickar, 1 Dick. Ch. Rep. 490, and cases there cited.

The petitioner, at the time of the injury complained of, being a resident of the State of New York, availed herself there of such remedies as the laws of that state afforded her. Before the two years of statutory desertion had elapsed she procured a decree of a court of that state which made it absolutely unlawful for the defendant to mend his ways and return, or offer to return to live with her. And this is fatal to her case. For, granting that the defendant’s conduct at and prior to 1880 (the time of the desertion) was such as to render it improper for her to live with him and to make him guilty of constructive desertion, still that constructive desertion did not ripen into a right to a divorce on her part until the statutory period of time had elapsed. Before that period had elapsed, she adopted a remedy which prevented it from ever elapsing.

For these reasons, I am of the opinion that the petitioner is not entitled to relief and that the petition must be dismissed.