text:
    Orlando L. S. Roberts, complainant-respondent, v. John P. Tompkins, defendant-appellant. John S. Roberts, complainant-respondent, v. John P. Tompkins, defendant-appellant. Emily R. Schoff, complainant-respondent, v. John P. Tompkins, defendant-appellant.
    (No. 88.)
    (No. 89.)
    (No. 90.)
    [Submitted March 19th, 1909.
    Decided June 14th, 1909.]
    1. Defendant obtained from complainants without payment or consideration, deeds of their interests in real estate worth about $11,000 over the mortgages thereon, by leading complainants to believe that he was morally the owner under a will not published or witnessed, that their interests were of nominal value, and in one case, that the “equity was small.”—Held, that even if there were no statement of anything false as being true, defendant knowingly took advantage of a false impression created by what he had said, and was thereby guilty of false representation for which the deeds could be set aside.

      2. Lomerson y. Johnston, Jft N. J. Mg. (2 Diolc.) 812, followed.
    3. If a party is enforcing a legal right in a legal manner the reasons for his so doing are immaterial.
    On appeal from the court of chancery.

      Messrs. Thompson & Cole, for the appellant.

      Mr. Ulysses G. Styron, for the respondents.
   The opinion of the court was delivered by

Parker, J.

These three suits are on the same lines as the case of Ricketts v. Tompkins, 73 N. J. Eq. (3 Buch.) 552. The bills were filed to set aside as obtained by fraud of defendant, deeds made to him by various parties claiming by descent undivided interests in real estate at Atlantic City, the title to which, subject to two mortgages aggregating $2,500, stood at the time of her death in one Annie N. Roberts. She died unmarried and intestate, leaving as her heirs-at-law three surviving sisters, of whom one afterwards died unmarried and intestate and another is the mother of the defendant; and also a number of nephews and nieces, including the complainant in Ricketts v. Tompkins, supra, and the three complainants in the cases at bar.

As will appear by the reported opinion in the Ricketts Case, Miss Annie Roberts left a penciled writing purporting to be a testamentary disposition of hex property, giving it all to the defendant. This paper was signed but not witnessed or published, and was therefore worthless as a will. Annie N. Roberts died on January 3d, 1896. On the 16th Caroline Roberts, one of the surviving sisters, quitclaimed all her interest in the property to Mrs. Tompkins, defendant’s mother; and by deed dated January 27th, 1896, acknowledged on the 29th, the latter made her deed purporting to convey the whole premises to the defendant.

It would appear that defendant believed himself to have taken by this'deed a complete title, on the theory that the nephews and nieces did not inherit any interest therein, for he occupied it for about ten years and in March, 1906, apparently in entire good faith, he contracted to convey a clear title for $13,500. The purchaser applied to a title company for a guarantee of title, and being advised in due course of the outstanding interests, notified defendant, who then consulted his own counsel and was advised that he owned only two-fifths undivided interest in the property, and that a complete title could be acquired only by deeds from the other heirs or by obtaining control of the outstanding mortgages and foreclosing them. He seems to have taken both courses. The mortgages were assigned to one Faunce and promptly foreclosed by him as trustee for defendant. The bill to foreclose was filed on June 11th, 1906, and the sheriff’s sale took place on October 27th of the same year. To this foreclosure the three complainants-respondents were not made parties, because before the bill was filed the defendant had visited them all and obtained the deeds which they respectively seek to set aside as procured by fraud and misrepresentation of the facts.

No consideration whatever was paid to any of the complainants, nor was any one of them under obligations to the defendant. The value of the property is sufficiently indicated by the price named in the agreement, $13,500, deducting from which the mortgage encumbrance leaves an equity of about $11,000. The share of Orlando L. S. Roberts in this equity was one undivided fifteenth, and of John S. Roberts and Mrs. Schoff each one-twentieth. It is therefore apparent that each one parted with a valuable interest for nothing. Each complainant swore positively that he (or she) was not aware at the time of signing the deed that he (or she) had any interest in the property, that represented definite value. Without quoting the testimony, or going into particular detail, the representations made by defendant were such as to lead the complainants to believe defendant to be the rightful owner of the whole, that their signatures were a matter of form to enable him to get over some technical objection of counsel advising the purchaser, and that by signing they parted with nothing of material value. As Orlando Roberts put it, he inferred that the interest was so small that it was not worth while making an enemy of Tompkins by refusing his signature. Inasmuch as Orlando was a pensioner at a sailors’ home, to whom such a sum as $500 was a matter of great moment, it is readily inferable that he would not have signed if matters had been correctly represented to him.

To Mrs. Schoff and John S. Roberts the defendant made further representations about the testamentary paper, which he called a will, and said it was unavailable because of a “technicality,” meaning, but not stating, that it was not published nor witnessed. He had the “will” in his pocket, but did not show it to any of the parties. In this aspect the case somewhat resembles Broderick v. Broderick, 1 P. Wms. 239.

To John S. Roberts he also spoke of the equity being small. If he said nothing about a “will” to Orlando, he substituted the inducement that all the other heirs had signed away their interests, as indeed they had, but certainly so far as John S. Roberts and Mrs. Schoff were concerned, and also Helen R. Ricketts, under the influence of these very representations from Tompkins.

It is urged for the appellant that no statement made by him was materially false, and that the complainants are driven to charges of suppressio veri which are not contained in their bills. We do not agree with this view, but if it were true that no absolutely ^false statement was made, the case would still fall within the rule in Lomerson v. Johnston, 47 N. J. Eq. (2 Dick.) 312, where it was said: “In order to establish a case of false representation it is not necessary that something which is false should have been stated as if it were true. If the presentation of that which is true creates an impression which is false, it is, as to him who, seeing the impression, seeks to profit by it, a case of false representation.” See also 20 Cyc. 23, 24. There can be no doubt that the several complainants derived a false impression of their rights from what defendant told them; and that he intended that they should, or at least saw that' false impression and undertook to profit by it.

Two minor points are made. Defendant produces an agreement of sale of this property between a former owner and defendant’s mother, Hannah Tompkins, and asserts that the original conveyance to Annie N. Eoberts was in execution of that agreement; that the purchase-money was supplied by Hannah Tompkins, who was therefore equitable owner by virtue of a resulting trust, and claims that because of these circumstances his representation that he was morally the owner of the property was justified. This claim was not opened to the court until the day of final hearing, at which time the court and counsel came to an understanding that it was properly the subject of a cross-bill. Some evidence was taken to show that Annie N. Eoberts had no means and was dependent for her support on defendant and his mother; and the old agreement was introduced in evidence. The court allowed defendant twenty days to file a cross-bill, but none was filed. Hence the direct attack on complainants’ title may be considered as abandoned and it is a legitimate inference that defendant does not seriously rely on this feature of his defence. In any event complainants had a legal title and presumptively the equitable interest was joined thereto; and it cannot be said that a claim of this kind justified defendant in telling them that their interest was in effect nominal.

Criticism is also made of the conduct of complainants’ solicitor in stirring up the litigation by alleged misrepresentation of some testimony given by defendant to the effect that Annie N. Eoberts left no will and that thereby complainants became unfairly prejudiced against defendant. Without passing on the merits of this issue, it is sufficient to say that as complainants had an equitable right which they have enforced in a manner authorized by law, their motives and the underlying causes for their action are quite immaterial. Davis v. Flagg, 35 N. J. Eq. (8 Stew.) 491.

The decrees appealed from will be affirmed, with costs.

No. 88—

For affirmance—The Chiee-Justice, Garrison, Swayze, Eeed, Trenchard, Parker, Bergen, Yoorhebs, Minturn, Bógert, Yredenburgh, Yroom, Gray, Dill, Congdon—15.

For reversal—None.

No. 89—

For affirmance—The Chief-Justice, Garrison, Swayze, Eeed, Trenchard, Parker, Bergen, Yoorhees, Minturn, Bogert, Yredenburgi-i, Yroom, Gray, Dill, Congdon—15.

For reversal—None.

No. 90—

For affirmance—The Chief-Justice, Garrison, Swayze, Eeed, Trenchard, Parker, Bergen, Yoorhees, Minturn, Bogert, Yredenburgi-i, Yroom, Gray, Dill, Congdon—15.

For reversal—None.


source: Caselaw Access Project

author: Bergen, J.

license: Public Domain

text:
    The Ordinary, for and on behalf of Mabel L. Simpson, complainant-respondent, v. Abijah A. Anderson, defendant-appellant.
    [Argued March 16th, 1909.
    Decided June 14th, 1909.]
    1. The affidavit of consideration attached to a chattel mortgage stated that it -was given to secure the payment of a bond and mortgage executed and delivered by the maker of the chattel mortgage to H. which H., in consideration of $1,500 paid to him by the deponent, had assigned to deponent, and that the amount due thereon was $1,500.—Held, to be a sufficient statement of the consideration, to comply with the statute, and that it is not necessary to set out the consideration which passed between the original parties to the bond and mortgage, the consideration of the chattel mortgage being the amount paid by the assignee.
    2. The affidavit to a chattel mortgage, after stating “that the consideration of said mortgage is, whereas,” proceeded to recite the facts which disclosed the consideration.—Held, that the word “whereas” did not make the affidavit uncertain, or destroy the positive statement that the consideration was as thereafter set out.

      On appeal from an order of the conrt of chancery advised by Vice-Chancellor Walker.

      Mr. John Sykes, for the appellant.

      Mr. John S. Van Dike, for the respondent.
   The opinion of the court was delivered by

Bergen, J.

The complainant, a judgment creditor of Josiah B. Flock, filed his bill of complaint praying that a chattel mortgage given by Flock to the defendant be decreed void as to the judgment of the complainant.

The learned vice-chancellor adjudged that the mortgage was void as to complainant’s judgment for want of a sufficient affidavit, and advised an order for injunction restraining the defendant from selling the mortgaged chattels, from which defendant appeals. The mortgage bears date August 28th, 1897, conditioned for the payment of $1,925, being the aggregate amount of certain items particularly set out in the mortgage as follows, viz.: A bond, dated March 23d, 1892, executed and delivered by Flock to one Richard H. Hendrickson, for the sum of $1,500, and interest, the payment of which was secured by a mortgage given by Flock and wife to Hendrickson, and assigned by Hendrickson to the defendant, the mortgage and assignment being duly recorded; also the sum of $344, loaned by the defendant to Flock in cash, and the amount due on three certain promissory notes “upon which the said Abijah A. Anderson has become an accommodation endorser and surety for the said Josiah B. Flock,” then follows the dates and the amounts of the respective notes, two of them being payable three months after date, and the other two months after date. The record shows that the liability as endorser, had been discharged, the cash loaned repaid, and the mortgage foreclosed and mortgaged premises sold, and the proceeds of such sale applied towards the payment of the mortgage, leaving a deficiency of $976.67, which sum was all that remained unpaid of the debts secured by tbe chattel mortgage, when the bill was filed in this cause.

The affidavit which the learned vice-chancellor held to be insufficient, sets out, so far as it is necessary to be here recited,

“that the consideration of said mortgage is: Whereas, the said Josiah B. Mock became indebted to one Richard H. Hendrickson in the sum of fifteen hundred dollars; * * * and whereas, the said Richard X-I. Hendrickson, for the consideration of fifteen hundred dollars, assigned, transferred and set over the said mortgage to Abijah A. Anderson; * * * and whereas, the said Josiah B. Mock is indebted to this deponent for the full amount of the said fifteen hundred dollars ; * * * and whereas, on the thirtieth day of March, eighteen hundred and ninety-four, this deponent loaned and advanced in cash the sum of three hundred and forty-four dollars to the said Josiah B. Mock, at his special instance and request, and that the whole amount of the said three hundred and forty-four dollars, with interest thereon from the first day of April, eighteen hundred and ninety-seven, is still due and owing; * * * and whereas, this deponent has, at the special instance and request of the- said Josiah B. Mock, become an accommodation endorser and surety upon three certain promissory notes, one of which bears date the twenty-second day of June, eighteen hundred and ninety-seven; s= =:= * And now the consideration for this chattel mortgage is the. said fifteen dollars due from the said Josiah B. Flock to this deponent upon the said bond and mortgage, and the further sum of three hundred and forty-four dollars loaned and advanced by this deponent to the said Josiah B. Flock * * * and the -further sum of money as this de-. ponent may be called upon to pay by reason of having become an accommodation endorser upon the said three certain promissory notes herein-before mentioned.”

The vice-chancellor held the affidavit imperfect for several reasons, the first being that it does not state the consideration passing from Hendrickson to Flock when the bond and mortgage for $1,500, afterward assigned to deponent, was executed and delivered. We think that reading the mortgage and the affidavit together, this objection cannot be sustained, and that they should be read together in order to ascertain whether there has been a compliance with the statute, was determined in this court in Black v. Pidgeon, 70 N. J. Law (41 Vr.) 802. When so read it appears that the defendant had paid $1,500 for the bond and mortgage, the payment of which the obligor was willing to further secure, and did undertake to further secure, by the chattel mortgage. The chattel mortgage was given to secure the payment of $1,500, advanced and paid for an obligation of the mortgagor, the validity of which he did not dispute, and the real consideration of the chattel mortgage was what the defendant had paid out in relieving the debtor of his obligation to Hendrickson, and its transfer to the deponent, and not that passing between the original parties to that obligation of which the deponent would not be presumed to have had any knowledge. If it did not appear that the deponent had paid something for the assignment, a different question would arise. The learned vice-chancellor relies upon Graham Button Co. v. Spielmann 50 N. J. Eq. (5 Dick.) 120, in support of his conclusions, but in that case the affidavit stated the consideration to be “a present indebtedness of $1,500,” without disclosing how the indebtedness came into existence, and presents an entirely different situation from the one under consideration, where it appears that the defendant had parted with $1,500, and taken for it an obligation which the debtor issued for that sum, the bona fides of which was undisputed.

The learned vice-chancellor also determined that the affidavit was insufficient, in that the language used to show the indebtedness of Flock to Hendrickson is not positive and direct, but a mere recital of facts; the truth of which was not verified, because of the use of the word “whereas,” as above set out. We do not agree with this interpretation, for the word “whereas” and all that follows it is preceded by the direct and positive statement “that the consideration is” as disclosed by the recital following. In addition to this the affidavit declares, after a full statement of all the circumstances concerning the creation of the several debts, “and now the full consideration of this chattel mortgage is” the several items particularly described in the mortgage and preceding part of the affidavit. The affidavit is also condemned because it is said the promissory notes mentioned in it were not sufficiently described, and Dunham v. Cramer, 63 N. J. Eq. (18 Dick.) 151, is cited in justification of this conclusion. There is a wide difference between that and the present case, for there the consideration stated was “for the payment of a certain promissory note dated July 8th, 1898, for the sum of $800,” from which it would appear that there was nothing to distinguish the note from any number of notes dated on that day by any number of persons for a like amount. In the case under review it clearly appears from the affidavit and mortgage that at the special instance and request of Flock, the defendant became “an accommodation endorser and surety for the said Josiah B. Flock,” upon three certain promissory notes of which the dates, time to run before maturity, and amounts are given, with special reference to each note. The reasonable presumption arising from this state of facts is that the defendant endorsed the notes as surety and for the accommodation of Flock as maker, at his request, and this, we think, is sufficiently precise and explicit to afford the creditors of the mortgagor, “in case fraud was suspected, a fair opportunity to ascertain, by judicial investigation or otherwise, whether the mortgage was an honest security or a mere fraudulent cover.” Graham Button Co. v. Spielman, supra, 120, 122, which is the primary object of the statute. There is no proof to sustain the charge of fraud contained in the bill of complaint, and in the absence of fraud, where there is an honest and substantial compliance with the statute, the mortgage will not be opened to attack of other creditors merely because the affidavit is inartificially drawn. American Soda Fountain Co. v. Stolzenbach, 75 N. J. Law (46 Vr.) 721.

The affidavit being a sufficient compliance with the statute, the order appealed from is reversed, with costs.

For affirmance—-None.

For reversal—The Chiee-Justice, Garrison, Swayze, Eeed, Trenci-iard, Parker, Bergen, Yooehees, Minturn, Bogert. Yredenburgi-i, Yroom, Gray, Dill—rl4.


author: Vroom, J.

text:
    Amelia R. Sparks and Emma Ross, complainants-appellants, v. Thomas H. Fortescue and Clarence Ross, defendants-respondents.
    [Argued March 12th, 1909.
    Decided June 14th, 1909.]
    A petition to open a decree in the court of chancery cannot be filed after the expiration of the statutory period within which an appeal can be taken from such decree.
    The appeal in this cause was from a decree of- the court of chancery advised by Vice-Chancellor Learning.

      Mr. Thomas É. French, for the appellants.

      Mr. Timothy J. Middleton and Mr. John J. Crandall, for the respondents.
   The opinion of the court was delivered by

Vroom, J.

On November 2d, 1903, the complainants, under the statute, filed a bill to quiet title; the defendants filed separate answers and the case came on regularly for a hearing at the May term, 1904, of the court of chancery. On the 18th of May, 1904, a final decree was advised by Vice-Chancellor Pitney, which was filed May 27th, 1904.

On May 17th, 1907, nearly three years later, the defendant Clarence Ross filed a petition in the court of chancery setting forth that he was a debtor of the defendant Forteseue, and that said Fortescue had begun a suit at law, by attachment, in this state against petitioner and seized the identical lands and tenements described in the said bill of complaint. That Fortescue had employed counsel to represent himself and petitioner and that, they had filed answers to the bill. That after the testimony of the complainant had been taken before the master said counsel advised petitioner and his mother, and other witnesses who were present at the hearing, ready to be sworn and give their testimony, that no evidence on their part was necessary. That upon this advice they did not proffer themselves as witnesses, and a decree went against them practically by default. The petitioner also set up in his petition that a similar suit is now pending against his brothers and sisters and which has not been decided, and is willing to enter into a stipulation to submit, to the same decree against himself as shall be made against them. Upon this petition an order to show cause was allowed by Vice-Chancellor Learning, directed to the complainants. They did not appear on the return of the rule and the vice-chancellor advised an order granting the prayer of the petition and opening and setting aside the decree of May 18th, 1904.

This order cannot be sustained. At the time of the making of the decree in this cause the one hundred and eleventh section of the Chancery act (Rev. 1908) was in force, and it provided that all appeals from final decrees on bills to quiet title should be made within three months after filing the decree appealed from. The decree was dated May 27th, 1904, and the time for taking the appeal expired August 27th, 1904. Manifestly no appeal would lie, and defendants sought by petition to open the decree upon the theory contended for on the argument, that such petition or application to open a decree would not be an appeal in any sense. Any question, however, as to this method of procedure has been settled in this court. In Cook v. Weigley, 69 N. J. Eq. (3 Robb.) 836, a petition was filed in the court of chancery to open a decree which had been appealed from and affirmed by this court, and it was held that such a petition should not be entertained and that the only proceeding by which such a decree could be challenged was by a bill of review. The situation in the present case is clearly the same; if a petition to open a decree cannot be filed after an appeal has been taken and decided, it ought not to be permitted to be filed after the time within which an appeal can be taken has passed. Had the defendants, however, instead of filing a petition, proceeded by bill of review, as suggested in Cook v. Weigley, supra, they would have been met with the decision of this court in Watkinson v. Watkinson, 68 N. J. Eq. (2 Robb.) 632, where it was held that although there is no express statutory limitation as to the filing of bills of review, the analogous limitation of the right of appeal should govern, and a bill of review cannot be filed after the lapse of three years from the final decree (the limitation of three years was changed by the revision of the Chancery act of 1908, supra) except in case of new or newly-discovered matter. And even if not barred by the limitation as above stated, it is difficult to see upon what ground permission to file a bill of review could be based; there is no allegation or pretence of any new or newly-discovered evidence, or of any special equity which could give the court the discretionary power to make the order. Watkinson v. Watkinson, supra.

But it was contended on the part of the defendants that the complainants had no standing in this court to review the order appealed from, because they had failed to appear on the return of the rule to show cause. In support of this contention the case of Townsend v. Smith, 12 N. J. Eq. (1 Beas.) 350, is relied on. That case held that where a defendant does not appear at the hearing before the chancellor, the case having been regularly noticed for argument, he cannot appeal from the decree thus rendered in his absence. This case follows the decision in Gelston v. Hoyt, 13 Johns. 576, but an examination of both cases and the authorities'cited shows clearly that what was decided applied only to the absence of a party at the hearing of the case, and that this view has, since Townsend v. Smith, supra, been again taken in this court is manifest from’ the opinion in Decker v. Ruckman, 28 N. J. Eq. (1 Stew.) 614, where Justice Knapp said: “If the cause had been regularly set down for hearing and noticed for argument, a failure to appear would have placed the appellants in the position of the parties in Townsend v. Smith, 12 N. J. Eq. (1 Beas.) 350, upon the ground that if the defendant voluntarily absents himself from the hearing it may fairly be presumed that no defence is insisted on.” When, however, upon a petition to open a decree, which in no sense can be construed as a hearing of the cause within Townsend v. Smith, supra, it is apparent upon the very face of the petition that it is unmeritorious, in my opinion the complainants were entirely justified in ignoring the order to show cause. They had a right to rely that what ought to be done would be done.

This question, however, need not be determined, it appearing that the respondents elected to answer the petition of appeal, instead of moving to dismiss it as they might have done. In thus answering they have submitted the case to this court on its merits and have waived any right (if such they had) to dismiss the appeal. This is the rule laid down by this court at the November term last of this court in State Council of Jr. O. U. A. M. v. Enterprise Council, No. 6, ante p. 245.

The decree below should be reversed, with costs.

For affirmance—None.

For reversal—The Ci-iiee-Justice, Garrison, Swayze, Reed, Parker, Bergen, Yoori-iees, Minturn, Bogert, Yredenburgh, Yroom, Gray, Dill—13.


author: Dill, J.

text:
    Valina R. Crocheron et al., complainants-appellants, v. Edward S. Savage et al., defendants-respondents.
    [Argued March 8th, 1909.
    Decided June 14th, 1909.]
    1. An attorney in hae re cannot maintain a purchase from a client of the subject-matter of the retainer unless he demonstrates that he made a full communication to his client not only of all that he knew, but as well of all that he believed, respecting the property.

      2. If, in the course of his employment, the attorney forms an opinion that the property is more valuable than had theretofore been assumed, and if he fails to disclose that opinion and thus give his client all that reasonable advice against himself that he would give against a third person, the transaction, if questioned, cannot be sustained.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 74 N. J. Eq. (4 Buck.) 629.

      Messrs. McDermott & Enright, for the eomplainants-appellants.

      Mr. Robert JFI. McCarter and Mr. William, H. Osborne, for the defendants-respondents.
   The opinion of the court was delivered by

Dill, J.

The complainant, Mrs. Crocheron, seeks to set aside a deed of certain real property made by her to her attorney, Mr. Savage, the defendant herein, in the course of his professional employment in hac re.

The conveyance is attacked on the ground that it was obtained by the defendant from his client in violation of the rule which requires that an attorney who bargains with his client in a matter of advantage to himself must conduct the transaction in all respects fairly and equitably; that he must fully and faithfully discharge all his duties to his client, not only by refraining from any misrepresentation or concealment of any material fact, but by active diligence to see that his client is fully informed of the nature and effect of the transaction proposed and of Ms own rights and interests in the subject-matter involved, and by seeing to it that his client either has independent advice in the matter or else receives from the attorney such advice as the latter would have been expected to give had the transaction been one between Ms client and a stranger.

The learned vice-chancellor, who heard the case below, sustained the transaction and held the deed valid.

We are obliged to differ with, the conclusion of the court below, applying the amplification of Lord Eldon’s rule (Gibson v. Jeyes, 6 Ves. 266) as laid down by Mr. Justice Kay in Luddy’s Trustee v. Peard (1886), 55 L. J. (N. S.) Ch. Div. 884, to the effect that an attorney cannot maintain a purchase from a client unless he can demonstrate that he made a full communication to his. client, not only of all that he knew, but also, what is pertinent to this case, of all that he believed, respecting the property, its character and value; that where the attorney, in the course of his employment, forms an opinion that the property is more valuable than had theretofore been assumed, if he fails to disclose that opinion and thus give his client all that reasonable advice against himself that he would give against a third person, the transaction cannot be sustained.

Inasmuch as the relation of attorney and client is involved, we discuss the facts somewhat in detail.

The complainant was the owner of an undivided half interest in a certain tract of three acres of salt meadow land on Staten Island sound and Thorp’s creek in Middlesex county, New Jersey.

The property in question had, prior to this controversy, been treated, so far as the record of title shows, as a mere adjunct to property on Staten Island, and the history of the title was therefore found in deeds to Staten Island property recorded in Richmond county, in New York state.

About 1890, the Port Reading Railroad Company acquired title to the other undivided half of the property by a deed from one Louis N. Meyer. In the deed to the railroad company, the scrivener attempted to convey this undivided one-half interest in three acres by a description conveying one and one-half acres, although the property had never been partitioned or divided. The railroad, however, took possession of the whole three acres.

The plot in question was so substantially enclosed by other lands belonging to the railroad that the only access to it was by boat, either from Staten Island sound or inland by Thorp’s creek. The railroad erected on the immediately adjacent property coal docks, bulkheads, and, particularly, a wharf, which practically closed Thorp’s creek to navigation, and thus tended to cut off the only available access to the locus in quo from the land side.

The use made of the land by the complainant and her predecessors in title was to cut salt grass upon the meadow.

Because of the situation and character of the property it had little market value, and as little available value except from its contiguity to the railroad property and from its considerable water front, nearly three hundred feet on Staten Island sound, and approximately seven hundred and fifty feet on Thorp’s creek. It therefore occupied a strategic situation and was of primary importance to the railroad.

In 1903, the complainant, who was a widow some seventy-five years of age, without apparent influence or means, employed the defendant, a lawyer of special experience in dealing with properties in this neighborhood, a real estate expert in local values and the owner of similar adjacent property, to represent her as attorney and counsel, and either to sell the property to or force some settlement with the railroad.

The defendant, under his professional retainer, entered into negotiations, but the railroad, sustained as it was by a record title which its attorney had advised was sufficient, seemed to rely upon possession as nine points of the law.

From 1903, to November 1st, 1905, the defendant had various communications with the railroad, asserting his client’s ownership of the property, threatening suit and demanding $7,500 for her interest, but he evidently desired to avoid a lawsuit, hoping to convince the railroad that the claimant had title and thus settle the matter.

In October, 1905, he again threatened suit, stating (October 18th, 1905) that he had promised his client that he would file the papers within a week unless the matter was arranged, but would hold the papers until the 23d of October, 1905; that if not settled by that time he would go to Philadelphia and make a demand on the railroad preliminary to commencing the action. But the railroad constantly refused to recognize the complainant’s title, although it offered the nominal sum of $100 as peace money for her interest, which she declined.

Finally, in November, 1905, Mr. Savage had an interview with Mr. Cutter, the local counsel for the railroad, in which the latter told Mr. Savage that he had spent two or three days in the Richmond county clerk’s office, Staten Island, examining the title; that he had personally inspected the property, and, although the descriptions were somewhat indefinite and differed in the Oakley deed and in the Meyer deed, he thought the property mentioned in both deeds was the same. He then said that the Oakley deed, under which the complainant claimed, called only^ for an undivided half of the land, and that if partition proceedings were brought, the company would have set apart to it the land upon which the docks were constructed.

In reference to this interview the railroad counsel testified that he had never admitted before that he thought the property described in the two deeds was the same property.

Mr. Savage testified that Mr. Cutter told him that he had made his report, and that the impression made upon his (Mr. Savage’s) mind at that interview was that Mr. Cutter had reported that the complainant had some title.

The facts thus communicated to the defendant that the railroad had through its counsel examined the records in Staten Island and that the counsel had personally inspected the property and was satisfied that the complainant had title to an undivided one-half interest in the property, are important, because, as appears from the evidence on both sides, Mr. Savage became convinced at this time that the railroad now had before it such facts that it must recognize the complainant’s claim,- and from this he must have formed the professional opinion that the result of negotiations or of a legal contest must eventually be an award to his client, and hence that the value of the client’s interest was greater than either he or she had theretofore believed.

After this interview nothing more seems to have been done and no communications passed between any of the parties until the 3d of January, 1906, when the defendant, without previous notice to the complainant, went to her residence at Rossville, on Staten Island, with the admittedly preconceived intention of buying her interest in the property. He took with him a deed, containing a description of the property and ready for execution, except as to the names of the parties, and, what is quite as significant, he provided himself with $200 in currency with which to pay for the property.

Taking the defendant’s version of the interview with the plaintiff and her son, he first mentioned the subject of the proposed purchase to the son and told him that he had spent all the time and -all the money he was going to spend on the matter unless he commenced litigation; that he had been referred from one official to another and was no better off than he was three years before; the only offer they had ever made was an offer of $100, and that if his mother wanted to go on with the suit an action in partition would have to be brought that might result in a division of the property and the recovery oí her half interest. To this the son replied, “The other half is not worth anything,” and then defendant, without advising him, said, “That is something for you to determine.”

The defendant told the complainant that the best offer that he could get for her was $100; that he would rather give her $200 for her interest and fight the railroad himself, than give up the fight. He told her plainly that he could not do anything more for her without a lawsuit and that he offered her $200 with the understanding that he was going to fight the railroad through and find out whether they had a half interest in the property or not.

Again, in the presence of the mother, he repeated to the son that $100 was the only offer that he had ever been able to get' them to make and the question was whether the complainant should give up the right or bring an action to maintain her title and in his opinion the railroad would not pay anything until they were beaten. The son thereupon said to his mother that she could do as she pleased. Complainant said that she would rather have the money, and the defendant again reiterated his statement that he would give her $200 just for the privilege of fighting the railroad, as he thought they had tried to make a fool of him.

She asked for delay to consider the matter, but he urged immediate action on her part. He then filled out the deed, she executed it, and he paid her the $200. He also agreed to pay the fees of a former lawyer ($50) and agreed to send a letter explaining the deed which might be sent to the Virginia heirs.

It is admitted that, whether intentionally or otherwise, the defendant failed to make any mention to the complainant of his interview with the counsel for the railroad, or that he had since that time formed any further or other opinion as to the value of the complainant’s interest or her chances of succeeding in bringing the railroad to terms. On the contrary, he at once wrote a letter to the complainant to be sent to the Virginia heirs, saying in part:

“The best price that I could offer to you for your undivided interest in the three acre tract is $200. This is $100 more than the railroad company offered and in my opinion is its full value at the present time.
“It has really no value outside of the fact that it may be of some value to me eventually and therefore I have offered $200.”

The defendant’s negotiations with his client were based upon the position of affairs prior to his interview with the railroad’s counsel, and not upon the situation as changed by that interview. He made to her no statement of fact and expressed no opinion as to the changed attitude of the railroad; he failed to disclose the impression made upon his mind by the admissions of Mr. Cutter, the railroad’s attorney, but refrained from advising her as to the probabilities of success of the suit, without which he declared nothing could be obtained.

On the other hand, immediately after he became the purchaser, in his further dealings and negotiations with the railroad, he boldly stood upon his interview with Mr. Cutter as establishing the recognition of his client’s title.

A side light is thrown upon the conduct of the attorney in not affording the complainant time for reflection and independent advice, but that when she requested delay he urged an immediate execution of the deed.

Four days after acquiring the title the defendant wrote to the railroad, not disclosing his purchase, but assuming to still represent the complainant, and stated that Mr. Cutter had finally concluded that the meadow property purchased by the railroad from Meyer was only a half interest, and not the whole property, and that the undivided one-half belonged to his client; he suggested an actual partition and stated that he had had the property surveyed and expressed the hope that they could agree upon a fair and equitable division.

After the ownership of the defendant became known negotiations continued between him and the railroad on various lines, for a division of land by conveyances each to the other, by adopting a line of division or.drawing by lot, for an exchange of contiguous properties owned by the parties, in which the three acre tract was included, for the purchase or sale at a figure to be fixed by the railroad. In fact, the evidence abundantly shows that the defendant made every effort in his power to realize upon the property without resorting to a lawsuit, to. obtain an actual partition by agreement, to effect an exchange > of properties, to realize cash upon his half interest by an actual sale at a figure or to purchase the interest of the railroad at the same figure.

Throughout the entire negotiations the value placed upon the property by the defendant was $7,500, or in that immediate neighborhood.

The negotiations having failed, the defendant brought a suit in equity against the railroad, claiming title to the land in question, asking for an accounting and a mandatory injunction against the railroad, enjoining and directing the removal of all the piers, docks, stores, buildings and obstructions, and directing the restoration of Thorp’s creek to its natural and navigable condition.

The present suit was commenced nearly two years after the execution of the deed in question and shortly after the suit was brought by the defendant against the railroad.

As to the law applicable to this case, it is well settled. Mr. Justice (subsequently Chancellor) Magie, in this court, stated the rule as follows: “When two parties stand toward each other in any relation which necessarily induces one to put confidence in the other, and gives to the latter the influence which naturally grows out of such confidence, and a sale is made by the former to the latter, equity raises a presumption against the validity of the transaction. To sustain it the buyer must show affirmatively that the transaction was conducted in perfectly good faith, without pressure of influence on his part, with complete knowledge of • the situation and circumstances, and of entire freedom of action on the part of the seller. When the confidential relation is that of attorney and client, the attorney who buys must also show that he gave to his client, who sells, full information and disinterested advice.” Dunn v. Dunn, 42 N. J. Eq. (15 Stew.) 431 (at p. 443).

The same principle is found in the English reports, following the leading case of Gibson v. Jeyes (1801), 6 Ves. 266. See Holman v. Loynes (1854), 4 De G. M. & G. 270; Savery v. King (1856), 5 H. L. Cas. 627; McPherson v. Watt (1877), L. R. 3 App. Cas. 254.

Luddy’s Trustee v. Peard (1886), 55 L. J. (N. S.) Ch. Div. 884, is closely analogous to the present case.

There a solicitor who had acted for a bankrupt purchased the interest of the latter in a trust estate. The solicitor had apparently in good faith and without intention to mislead, represented to the trustee in bankruptcy and to his solicitor and to the bankrupt himself that the interest was a life interest only, having no salable value.

But before the purchase the solicitor’s professional skill had led him to believe that this construction of the will was doubtful and that it was possible that the bankrupt’s interest was, after all, an absolute one, and he also formed the opinion that the estate was much more valuable than appeared from the rental, which he admitted was nothing like its true value.

The solicitor purchased from the trustee in bankruptcy fox seventy-seven pounds an estate which was worth two thousand pounds.

The opinion contains the following:

“From a time anterior to the death of the testatrix until after his purchase from Sperring” (the bankrupt’s trustee), “J. D. Peard acted as solicitor for Luddy in respect of this property.

“In the course of that employment he was called upon to consider carefully the extent of Buddy’s interest under the will. He evidently formed an opinion that it was probably an absolute interest, and not merely * * * a life interest, as described in his letter of the eleventh of December, 1876, * * * and his subsequent communications with Luddy and his trustee.

“In the course of the same employment he also formed an opinion that the property was more valuable than the actual rental showed. He did not disclose his opinion on these points either to Luddy or to his trustee or the trustee’s solicitor. :f= * *

“Putting aside the circumstance of secrecy, and supposing Luddy not to be bankrupt, the case would be one in which Peard could not have maintained such a purchase from Luddy himself unless he could show that he had made a full communication to his client of all he knew or believed respecting the property, arid, as Lord Eldon said in Gibson v. Jeyes, 6 Ves. 266, had given his client all that reasonable advice against himself that he would have given against a third person.”

As to the distinction made in the English cases between an attorney in hac re and one otherwise situated, see Montesquieu v. Sandys, 18 Ves. 302 (at p. 313); Holman v. Loynes, supra; McPherson v. Watt, supra.

There is no force in the contention here that Mr. Savage was not the attorney in hac re.

It is not necessary to find that the attorney was guilty of intentional wrong-doing. The reason why he did not disclose the material facts upon which we have commented is not important.

The fact that he did not disclose them is sufficient.

The law looks on transactions of this kind between an attorney and his client with suspicion and will not permit a conveyance to the attorney to stand unless the attorney demonstrates the entire good faith of the transaction. It requires him to be absolutely frank and open with his client, to disclose every fact of which he has knowledge, and as well any professional opinion he may have formed, which could in any way affect the client in determining whether or not to make the convejrance. The conduct of Mr. Savage does not measure up to this standard of frankness.

The contention of the defendant’s counsel that the Port Beading EailroacL Company instigated the present action, and that it is intended to be and is a counter move on the part of the railroad to defeat the injunction suit brought by Mr. Savage against the railroad—or, as counsel graphically puts it, that “the hand of the railroad sticks up like a sore thumb throughout the entire suit from its commencement down to date”—is interesting, but is no defence.

The defendant is answered by the language of Vice-Chancellor (now Mr. Justice) Reed in Ocean City Railroad Co. v. Bray, 57 N. J. Eq. (12 Dick.) 164 (at p. 167), where he says:

“In respect to those actions at law wherein malice is not an essential element in the plaintiff’s case, or in those suits in equity where intent does not lie at the bottom of the right to relief, the courts will take no notice of the purpose in the mind of the parties in asserting or defending such legal or equitable rights. The right of a party to redress in such instances is ex debito justicien, and a court has no discretionary power to determine whether it will or will not award to a party his legal or equitable remedy, according to whether the party may or may not be actuated by a malicious or impolitic motive.”

In another case Vice-Chancellor Eeed aptly said:

“In such case as this, bad motive in the complainant will not defeat the relief. At best it will arouse a suspicious scrutiny of the proofs as to the existence of the conditions upon which the remedy is given.” Fort Wayne Electric Corporation v. Franklin Electric Light Co., 57 N. J. Eq. (12 Dick.) 16 (at p. 21).

The United States supreme court has also held:

“If the-law concerned itself with the motives of parties new complications would be introduced into suits which might seriously obscure their real merits. If the debt secured by a mortgage be justly due, it is no defence to a foreclosure that the mortgagee was animated by hostility or other bad motive.” Dickerman v. Northern Trust Co., 176 U. S. 181 (at p. 191). See also McFadden v. Mays Landing and Egg Harbor City Railroad Co., 49 N. J. Eq. (4 Dick.) 176 (at p. 183); Davis v. Flagg (Chief-Justice Beasley, Court of Errors and Appeals, 1882), 35 N. J. Eq. (8 Stew.) 491; Roberts v. Tompkins, decided at this term of this court, opinion by Justice Parker; McDonald v. Smalley, 1 Pet. (U. S.) 620; Morris v. Tuthill, 72 N. Y. 575 (at p. 577); Raughley v. West Jersey and Seashore Railroad Co., 202 Pa. 43.

The decree below is therefore reversed.

For affirmance—None.

For reversal—Ti-ie Chiee-Justice, Garrison, Swayze, Beed, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgh, Vroom, Gray, Dill—13.


author: Per Ctjriam.

text:
    Camden Safe Deposit and Trust Company, trustee, complainant-respondent, v. John H. Dialogue, defendant-appellant.
    [Argued March 16th, 1909.
    Decided March 16th, 1909.]
    The general rule that a trustee who files a bill to foreclose a mortgage held by him must make his eestuis que trust parties does not apply where they are unknown or are so numerous as to make it impossible, or highly inconvenient, to do so.
    On appeal from an order of the court of chancery advised by Vice-Chancellor Garrison.

      Messrs. French & Richards, for the appellant.

      Mr. George J. Bergen, for the respondent.
   Per Ctjriam.

The bill in this case was filed to foreclose a mortgage given by John II. Dialogue to the Camden Safe Deposit and Trust Company as trustee, to secure the payment of one hundred and eighty-eight bonds of $500 each. The complainant has made the holders of about forty per cent, of these bonds parties to the litigation, and alleges in its bill that the holders of the balance of said bonds are unknown to it, and cannot be ascertained by it, and that it is highly inconvenient or impossible to bring them before the court and make them parties to the proceedings. The defendant demurred to the bill upon two’ grounds—first, “because the holders and owners of all of the bonds are not made parties,” and second, “because complainant is not entitled to the relief prayed for— a sale of the mortgaged premises.”

The learned vice-chancellor before whom the matter was heard advised an order overruling the demurrer. From the order so advised this appeal is taken.

The order will be affirmed. The demurrer admits the truth of the facts stated in the bill. Although, as a general rule, a trustee who files a bill to foreclose a mortgage held by him1 should malre his cestuis que trust parties, that rule has its limitations. It is only applicable when the cestuis que trust are known, and are not so numerous as to make it impossible, or highly inconvenient, to include them as parties. Butler v. Farry, 68 N. J. Eq. (2 Robb.) 760.

The contention that the complainant is not entitled to a decree ordering a sale of the mortgaged premises is, of course, without substance. The holder of a mortgage is, after default, entitled to foreclose the equity of redemption. The order for sale following a decree of foreclosure is in the interest of the owner of the mortgaged premises. It relieves him from the hardship of a strict foreclosure. The second contention of the> demurrant could only have substance upon the theory that there was no equity of redemption in him to be foreclosed.

For affirmance—The Ciiiee-Justice, Garrison, Swayzb, Reed, Trenohard, Parker, Bergen, Yoorhees, Minturn, Bogert, Yredenburgh, Gray, Dill—13.

For reversal—None.


author: Per Curiam.

text:
    Jane E. Gillen, complainant-appellant, v. Mary E. Hadley et al., defendants-respondents.
    [Argued March 17th, 1909.
    Decided April 10th, 1909.]
    1. Where a will created a trust to pay two annuities, and for other purposes, and it appeared that both of the annuities would expire within the limitation of the rule against perpetuities, a bill to construe the will, in order that the court should declare that the vesting of the residuary estate was delayed beyond the time prescribed by the rule against perpetuities brought during the life of the annuitants, was premature.
    2. Where a bill to construe a will and declare a trust invalid as infringing the rule against perpetuities also demanded an accounting, it was sustainable for the purpose of obtaining an accounting, though it was premature in so far as it sought to avoid the trust. ■
    3. Where a bill was filed for an accounting by trustees in the chancery court several days before proceedings for an accounting were instituted on behalf of the trustees in the prerogative court, where the will was probated, the chancery court, having first obtained jurisdiction, would retain it for purposes of an accounting.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is as follows:
    Henry P. Simmons, late of the city of Passaic, died on June 16th, 1896, leaving a will, which is the subject-matter of this controversy. Pie left four children, Mrs. Gillen, the complainant, Mrs. Howe (who has since died) and the defendants, Mrs. Hadley and Miss Henrietta P. Simmons. ' The will makes provision for all the children and disposes of all the testator’s property. The bill is filed primarily for the purpose of having this court declare that the vesting of the residuary estate under the will is delayed for so long a period as to be void for remoteness; or in other words, that the provisions of the will in relation to the disposition of the residuary estate are void, because they violate the rule against perpetuities.

      This question was argued fully and with distinguished ability by the counsel who appeared in the case, but notwithstanding their earnest efforts to obtain a decision on this main question, I find that a preliminary question presents itself, which, it appears to me, has already been disposed of by the court of errors and appeals in such a way as to preclude me from considering at present the validity of the devise.
    Several years ago Miss Henrietta Simmons, one of the defendants in this suit, brought an action of ejectment against Mrs. Hadley and her husband, who are the trustees under the will, and as such hold the legal title to and are in possession of the residuary estate.; Miss Simmons claiming, as the complainant here now claims, that the disposition of the residuary estate was void for the reason that it violated the rule against perpetuities.
    The case is reported under the name of Simmons v. Hadley, 63 N. J. Law (34 Hr.) 887. In the judgment delivered by Chancellor Magie, there is a discussion and a settlement of the preliminary question which I have referred to.
    The tenth paragraph of the will makes the following direction in regard to Mrs. Gillen:
    “The share of the net income from my said estate so set apart from time to time as aforesaid for the benefit of my daughter, Jane Elizabeth Gillen, shall be by my said trustees paid, out from time to time, at their discretion, for the comfortable support and maintenance of my said daughter, and of her daughter, Margaretta Westervelt Gillen, during the widowhood of my said daughter, Jane Elizabeth Gillen; upon the remarriage or decease of my said daughter, Jane Elizabeth Gillen, said share of the net income of my estate shall be my said trustees paid out from time to time, at their discretion, for the comfortable support and maintenance of my said granddaughter Margaretta, until she shall have arrived at the age of twenty-five years, or so soon thereafter as her mother shall have remarried or deceased, my said trustees shall pay over and convey” &c.
    The eleventh paragraph makes the following provision for the daughter Henrietta:
    “The share of my estate so set apart as aforesaid for the benefit of my daughter Henrietta, shall be paid out by my said trustees for the comfortable support and maintenance of my said daughter for and during her natural life.”

      ■ These provisions are referred to in Chancellor Magie’s judgment as follows:
    “The trustees are to dispose of the income set apart for Mrs. Gillen from time to time for her support and maintenance and for the support and maintenance of the plaintiff (Henrietta P. Simmons, one of the defendants in this suit) for her life.”
    It was held there that it was the design of the testator to withhold from the plaintiff in that action the legal title to and possession of the general residuary estate through the instrumentality of an active trust which contemplated a payment of the two annuities above mentioned, both of which, by the terms of the will, are to expire within the limitation of the rule against perpetuities, and that the trustees took the entire residuary estate as long as they were required to pay the two annuities.
    The two annuitants are still living; one is the complainant in this suit, the other, a defendant, and in view of the interpretation given to the will by the court of errors and appeals, I feel bound to say that the suit has been prematurely brought. I do not see how the question presented by the bill can be raised and decided during the lifetime of Mrs. Gillen or Miss Simmons.
    Ordinarily, a decree on conclusions of this nature would be a decree dismissing the bill, but it has already been held by Yice-Chaneellor Pitney in this case (Gillen v. Radley, '72 N. J. Rq. (2 Buck.) 505) that the bill has a purpose altogether independent of that touching the construction of the will and the ascertainment of the legality of the trust, and that is, for the purpose of obtaining an accounting. It does appear from his opinion that proceedings are pending in the prerogative court on behalf of the trustees to have their accounts stated and passed, and while the prerogative court, which was the court in which the will was probated, is a proper jurisdiction for entertaining the accounting, yet seven days before the accounting proceedings were begun in that court the bill in this case was filed; so that this court obtained jurisdiction of that portion of the subject-matter of the bill prior to the filing of the account in the prerogative court.

      This court will therefore retain its jurisdiction over the accounting and deny all other relief.

      Mr. Sherrerd Depue and Mr. Joseph Hill Brinton (of the Pennsylvania bar), for the appellant.

      Mr. Frederick T. Johnson, Mr. Ashton Parker (of the New York bar), and Mr. William J. Morrison, Jr., for the respondents.
   Per Curiam.

The argument in this case was limited by the court to the question discussed by the vice-chancellor, whether the bill was prematurely filed. The vice-chancellor thought that the question presented by the bill could not be raised and decided during the lifetime of Mrs. Gillen or Miss Simmons, and relied upon our decision in Simmons v. Hadley, 63 N. J. Law (34 Vr.) 227. We think he attributed too far reaching an effect to that decision. What we held was that the trustees took the entire residuary estate as long as they were required to pay the specific annuity of $400 to Miss Simmons and $300 to Mrs. Gillen. The annuity to the latter has ceased because of her majority. The annuity to the former was to continue until the net income from the general trust estate should amount to $1,600 per year. It is said that time has arrived, but the pleadings and proofs fail to establish the fact. The answer of Mr. and Mrs. Hadley admits the fact, as does the answer of the guardians ad litem of the infant defendants, while the answer of Miss Simmons denies all knowledge on the subject. The proof is that it depends upon the method of stating the account with reference to taxes and assessments whether the net income of the trust estate amounts to the prescribed sum. The fact that for a time the trustees treated the income as amounting to $1,600 a year is not sufficient to establish that the net income of the general trust estate, after the payment of debts, encumbrances, taxes and other expenses, actually amounted to that sum, for the trustees may have erred in their method of treating the income. In this state of the pleadings and proofs, we cannot now decide the main question that was argued in the briefs. If the income is less than $1,600, the case is governed by our former decision. If more, we should have to determine whether the other trusts are of such a character that we ought not now to pass upon their validity or the validity of the estates in remainder.

The vice-chancellor was therefore quite right in advising a decree that the bill was prematurely filed. It is possible that the defect in the proofs can be supplied so as to present the question left undecided in Simmons v. Hadley. The decree must be affirmed and the' record remitted to the court of chancery for such further proceedings as may be agreeable to equity and in accordance with the practice of the court.

For affirmance—The Chiee-Justioe, Garrison, Swayze, Reed, Trenohard, Parker, Bergen, Voorhees, Minturn, Bogebt, Ybedenbubgh, Yroom—12.

For reversal~None.


text:
    Virginia Heinisch v. William Pennington et al., executors, &c.
    [Argued March 3d, 1909.
    Decided June 14th, 1909.]
    On appeal from a decree of the court of chancery advised by Yice-Chancellor Emery, whose opinion is reported in 73 N. J. Eq. (8 Buck.) 1/56.

      Mr. Aaron E. Johnson, for the appellant.

      Mr. George Holmes and Mr. Bichard V. Lindabury, for the respondents.
   Per Curiam.

Out examination of this case leads us to the conclusion that the decree appealed from should be affirmed, and for the reasons given in the opinion of Arice-Chancellor Emery delivered in the court below, except that we have not found it necessary to consider the following question discussed in the opinion, viz., whether a promise made by a legatee to a testator that he will “provide well” for another legatee, and which promise induces the testator to refrain from altering his will for the purpose of further providing for that other legatee, is enforceable after the death of the testator by the legatee for whose benefit it was made. We find it unnecessary for the reason that the proofs will not, in our opinion, justify the conclusion that any such promise was made by the defendant’s testator to his father.

The decree under review will be affirmed.

For affirmance—Ti-ie Chancellor, Chiee-Justice, Garrison, Swayze, Reed, Trenohard, Parker, Bergen, Voor-HEES, MiNTLRN, BoGERT, ArREDENBURGH, VROOM, GRAY, DlLL —15.

For reversal—None.


text:
    George W. Marsh, respondent, v. John K. Vanness et al., appellants.
    [Argued March 5th, 1909.
    Decided June 14th, 1909.]
    1. Evidence in foreclosure held insufficient to sustain the defence of usury. °

    2. Evidence in foreclosure held sufficiently corroborative of that of a defendant to establish that a certain payment had been made, and wholly on account of the mortgage.

      3. A payment by a mortgagor on account thereof cannot be withheld by the creditor for other bills owing by mortgagor, but credit must be allowed on the mortgage.
    4. Evidence in foreclosure held sufficient to make out an alleged payment.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is as follows:
    To this bill of foreclosure, filed by the assignee of the administrators of the mortgagee, two defences are set up at the hearing by four of the answering defendants—first, usury, and second, payment, either full or partial. As to the defence of usury, the answer of the mortgagor contains an allegation denying that complainant is entitled to interest on the mortgage
    “for the reason that the said loan was tainted with usury by the said mortgagee demanding and receiving from this defendant a sum of money as a bonus for the making of the said loan, and also by receiving a sum of money in excess of the legal rate of interest allowed by the statute of the State of New Jersey on the actual sum of money as loaned.”
    The answers of the other three defendants (the wife of the mortgagee, a subsequent judgment creditor, and a subsequent grantee, whose absolute deed is claimed to be a mortgage) set out the charge of usury in substantially the same general words, and without any particulars of the alleged agreement. In order to be available as a defence at final hearing in equity, the terms of the usurious contract must be precisely and correctly set out, the quantum of the usurious interest must be specified, and the proof must correspond with the allegations. Taylor v. Morris (Justice Depue, Cowl of Errors and Appeals, '1872), 22 N. J. Eq. (7 C. E. Gr.) 606, fill, 612; Grane v. Insurance Company (Court of Errors and Appeals, 1875), 27 N. J. Eq. (12 C. E. Gr.) 1781; Ease v. Bennett (Vice-Chancellor Emery, 1895), 51 N. J. Eq. (9 Diclc.) 97; 83 Ail. Rep. 218. This is a case where complainant is entitled to a strict enforcement of the rules of pleading this defence. Nor am I satisfied that on the proofs usury has been satisfactorily made out. The mortgagee is dead, and evidence only on one side, as to the actual agreement of loan, has been heard. The evidence of a witness named Allen is relied on to prove an oral agreement for a bonus of $200 on a loan of $3,000. Allen had sold the property in question to defendant Yanness, and conveyed to him, without receiving payment in full. He says that he negotiated with Marsh, the mortgagee, who demanded $200 as a bonus, and further says that he paid Marsh $.125, which he received from Yanness for that purpose. This witness’s credibility has been seriously shaken by the testimony of his neighbors at the time as to his reputation for veracity, and this circumstance, taken in connection with the statement of complainant, who assisted his father, the mortgagee, in his business, that the $125 procured from Yanness was paid by Allen for bills owing his father, who had previously received orders on Yanness which were unpaid, and that the payment of these bills was made a condition of the loan by Marsh to Yanness, makes Allen’s evidence as to this agreement or payment insufficient to sustain the defence, even if this agreement had been sufficiently pleaded. This defence therefore must be overruled.
    The defence of payment on account of the mortgage comprises several items, but the evidence is mainly directed to two payments, one of $500 and a subsequent payment of $1,000. The mortgage was for $3,000, dated April 24th, 1891, payable in. one year, with interest at six per cent., payable semi-annually. Two payments of interest are endorsed on the bond, both in the handwriting of Yanness, who is a lawyer; one for $90, six months’ interest, on October 24th, 1891; another for $180, one year’s interest, on October 24th, 1892. No subsequent endorsements of interest were made previous to the death of Mr. Marsh (January 27th, 1902). It is admitted that on or about July 16th, 1894, a payment of $500 was made by Yanness to Marsh, and the dispute is whether the payment was to be applied wholly to the mortgage, or to be first applied to bills for meat, then owing by Yanness to Marsh, and the balance applied toward interest on the mortgage. The payment was made at the beef house of Marsh, and in the presence of a witness named Lewis, a butcher who was there on business at the time. Lewis says that Vanness drove up in his wagon; Marsh went to the wagon, about two feet distant from the platform where they (Marsh and Lewis) were standing, and that Vanness handed Marsh a $500 bill and told him to put it on the bond and mortgage. The witness says he thinks Vanness said for interest. Vanness asked if Marsh had the bond and mortgage, to which Marsh replied that he did not. Lewis’s recollection is that Marsh wrote a paper—a receipt or bill—and handed it to Vanness, but Vanness says that he is mistaken about this, and that Marsh commenced to write a receipt; but, as Vanness was hurrying for a train, he did not wait, and told him to endorse it on the bond. Reliance on Vanness’s statements on matters vital to the case is very much shaken, not only by the general attack on his credibility, but by his own written certificates in relation to this mortgage. But inasmuch as it is clear that some payment was to be made on the mortgage, because the bills at that time did not amount to $500, and inasmuch as the mortgagor failed to endorse any payment at all on the bond at the time, the burden is on him, or those claiming under him, to satisfy the court that Lewis’s evidence as to the object of the payment should not be received, notwithstanding the non-production of the receipt, if it was given. The witness appeared to me to be honest and credible, and I think his evidence sufficiently corroborative of that of Vanness to establish the fact that this payment was made, and that it was made only on account of the mortgage. If this appropriation was made, then the creditor had no right to withhold the payment for other bills, and the credit must be allowed.
    Another payment claimed to have been made on the mortgage is one of $1,000, on June 23d, 1899, in connection with the release of a portion of the mortgaged premises by Mr. Marsh to the Plainfield Street Railway Company, which had constructed, or was about to construct, a railway through the premises, on a strip about eighty feet wide by one thousand four hundred feet long. The release was made to the railway company, and for the express consideration of one dollar. The company had agreed to pay.' Vanness for the right of way, released from all liens, and Vanness undertook to procure the releases; the railway company not itself paying for them. The question disputed on. the facts is whether Mr. Marsh, before the execution of this release, received the sum of $1,000 from Yanness, on his account, as the consideration, or part of the consideration, for the release. Two witnesses, a lawyer named Haire and a witness named Strauch, both of New York, besides Yanness, swear to this payment as having been made to Mr. Marsh in their presence, and also in the presence of a Mr. Rosso, since deceased, in whose office Strauch was then employed. According to the account of these three witnesses, the money, $1,000 in bills, was produced by Colonel Haire, and by him handed over to Marsh directly, or to Yanness who then gave it at once to Marsh. This payment of the money was, according to the testimony of all the witnesses, made before Marsh’s execution of the release, and on his demand for the payment before he would execute it. Haire says that he agreed to return it, or produce the release, and that to secure himself (or the clients lie represented) he received two notes or orders for $500 each on the street railway company, with an assignment of Yanness’s contract with the company for payment. The release was executed and acknowledged before Mr. George Bell, who delivered it to Mr. Marsh. Mr. Marsh, then, according to this witness, asked Yanness for the paper he promised to give him, and Yanness then drew a paper, which was read over to Mr. Marsh, who said it was all right. A paper has been produced by complainant, which is a certificate signed by Yanness, dated June 23d, 1899, the same date as the release, as follows:
    “This is to certify that I have never paid anything on account of the principle sum of a mortgage of $3,000 made by John K. Vanness to John R. Marsh, bearing date April 24th, 1891, covering a tract of land of about 36 acres lying on the southeast side of east front street in the city of Plainfield.”
    Yanness says that this paper was drawn and delivered to Mr. Marsh in the morning before the payment of the money, and that the paper drawn in Mr. Bell’s office related to the payment of back taxes and assessments on the property. No such paper has been produced, and so far as Yanness is concerned, his testimony as to this payment is so discredited by his subsequent admissions and actions that it may, for present purposes, be considered as altogether unreliable to prove payments on the mortgage. This transaction of the exchange of papers took place in the presence only of Mr. Bell, neither Mr. Haire, Rosso nor Strauch being present, and the real question as to the payment is whether their positive account of the actual payment, taken by itself, or in connection with Vanness’s own actions and conduct, indicating or implying that no payments had been made, justifies the conclusion that their evidence must be rejected as willfully false. Evidence attacking Colonel Haire’s credibility was given, but in my judgment it was too slight to be effective for that purpose, and the weight to be given to his evidence must be determined without regard to this aspect of it. The extreme improbability of his story, and that of Strauch confirming it, is the main reason urged for rejecting it.
    Further consideration of the case has confirmed the impression received at the hearing that there is no such improbability in the account as to justify me in rejecting it. And on this further consideration, and on reading over again the evidence and briefs of counsel, an aspect of this payment, and especially of Tanness’s conduct relating to the paper signed on that day, and now produced, presents itself, which may explain how this certificate came to be made by Vanness and delivered to Marsh and accepted' by him, notwithstanding that he had received the $1,000. Colonel Haire swears that this advance of the $1,000 was, on his part, part of a transaction which contemplated the procuring from Mr, Marsh of an assignment of the mortgage, and the payment of the whole amount of the principal, $3,000, and that before handing over the money Mr. Marsh had agreed to assign the mortgage. Vanness now swears that he did not understand that there was any such arrangement, and that he first learned of it when Colonel Haire, after the delivery of thé release, asked Mr. Marsh to make the agreement to assign the mortgage, against which he (Vanness) then protested. I should be inclined to believe Haire’s statement rather than Vanness’s, and it may be that, fox-some purposes not now clearly disclosed by the evidence, it was intended that ultimately the mortgage itself should be transferred by Mr. Marsh, and that Mr. Marsh, in connection with such assignment to Haire, required a certificate that the full amount was due, treating the $1,000 received from Haire as so much paid by him on account of the assignment, if the assignment was afterwards carried out. Nothing further was in fact done about the assignment, and Yanness’s statement is that at his request and objection made at once, Mr. Marsh said he would not assign it. Yanness having met the pressing emergency by getting this release so as to procure the money from the trolley company, and having secured the money from Haire, may have preferred to stop any further proceedings on a line which would give any person other than Mr. Marsh control of the mortgage. The $1,000 advanced by Haire seems to have been afterwards paid back out of the money received from the trolley company. This suggestion as to a possible explanation of the certificate may not remove all the difficulties which arise on the evidence, but the real question is whether the positive evidence of Haire and Strauch corroborating Yanness as to payment of the sum of $1,000 to Marsh, in connection with the execution of the release, is so incredible and improbable that it must be rejected as willfully false on the part of these witnesses. In this aspect of the case a probability or possibility that Yanness was dealing double with Haire and his clients^ as well as with Marsh, is not, on the whole evidence in this case, so remote, that it should not be considered, in its bearing on the effect of his own writings, declarations and actions, in reference to the amount due on the mortgage. And on tlje question of the improbability of the story of these witnesses that the payment was made to Marsh in consideration of the release there must also be weighed in the balance the improbability that Mr. Marsh would, in the situation of the mortgage and in consideration of Yanness’s previous conduct toward him, execute a release, without getting some consideration.
    Weighing the whole evidence, the conclusion I come to on this branch of the case is that the payment of $1,000 has been made out and must be credited. For the other payments, no evidence other than that of Yanness himself is produced without corroboration, and this evidence is so contradicted and overcome by the effect of his own declarations and admissions, both written and oral, and by the attack on his credibility, that it cannot be considered sufficient.
    I will advise a decree for complainant for the amount due on the bond after deducting these two payments. The hearing before me was brought on, on the decree pro confesso, and the answers of four of the defendants, setting up the defences above considered. Other answers appear to have been filed by subsequent encumbrancers consenting to sale to pay amount due on complainant’s mortgage and other encumbrances.
    On settling decree T will hear counsel as to whether an order of reference should be made as to these subsequent encumbrances.

      Mr. Winfield S. Angleman, for the appellants.

      Mr. Patrióle E. Gilhooly, for the respondent.
   Per Curiam.

We concur in the findings of fact of the learned vice-chancellor, and upon that ground affirm this decree without considering the question of pleading involved. Costs were properly allowed the complainant, this being a foreclosure suit. P. L. 1902 p. 528 § 53.

For affirmance—The Ci-iiee-Justice, .Garrison, Swayze, Reed, Trenchard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgi-i, Vroom, Gray, Died—14.

For reversal—None.


text:
    Christiana Schultze v. John Henry Schultze.
    [Submitted March 23d, 1909.
    Decided June 14th, 1909.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 78 N. J. Eq. (8 Buch.) 897.

      Mr. John J. Fallon, for the appellant.

      Mr. William S. Btuhr, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion of Vice-Chancellor Howell, delivered in the court below.

For affirmance—The Chiee-Justice, Garrison, Swayze, Beed, Trenchard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgh, Vroom, Gray, Dill, Congdon—15.

For reversal—None.


text:
    Elizabeth K. Kunz et al. v. James H. Mason et al.
    [Submitted May 5th, 1909.
    Decided June 14th, 1909.]
    1. In a suit to reform a contract for the sale of real estate by reducing the consideration from $00,000 to $55,000 for alleged mistake, complainant's self-serving declaration to others, after the contract was made, and before any controversy arose, that she paid only $55,000 for the property, was inadmissible.
    2. An agent of an owner of real estate, authorized to sell the same for a specified price, may not lawfully, after obtaining a purchaser at a higher price, take title in his own name, or in the name of another, using the purchaser’s money to complete the purchase, and appropriate the difference to his own use.
    3. Evidence held to show that defendant had purchased the property in controversy from a trust company for $55,000 before he knew that complainant desired to purchase the same, and that in selling the property to complainant for $65,000 he acted for his own benefit, and not fraudulently or as agent of the trust company.
    4. Evidence held to show laches on the part of complainant.
    On appeal from a decree of the court of chancery advised by Yice-Chancellor Learning, whose oral opinion is as follows:
    1 am not inclined to take this case under advisement. It is chiefly a question of fact. The testimony will never be more fully impressed on my memory than it is now at the close of the trial.
    The agreement which complainants seek to reform is a remarkable one. In it the defendant Mr. Mason agreed to convey to the complainants a property which, according to one side, was to be conveyed for $65,000, and, according to the other side, was agreed to be conveyed for $55,000, and the purchaser admittedly had but $1,000 to pay in cash on account of the purchase price, and the agreement itself contemplated only a payment of $500 as the second installment four months from the date of the agreement, and the property was a large hotel, already furnished, of which the purchaser was to take immediate possession and begin business. The agreement, under the conditions which are shown, clearly contemplated that the purchaser should make out of .the business the money which was to enable her to pay the purchase price and the fixed charges in connection with the hotel, consisting of interest on the mortgages, taxes, water rents, insurance, &c. To that end the payments named in the agreement are arranged to fall due during the summer seasons and at no other time. I say this is a remarkable agreement, because I think it is probably the first instance I have observed where a property of so much value has been conveyed for so little cash down. The agreement is peculiar in another aspect, and that is the manner in which its terms are stated. At first I was very uncertain as to the meaning of the agreement; but a more careful 3’eading satisfies me that there can be no doubt as to that. To my mind it clearly contemplates that the purchaser shall pay all of the fixed charges, such as taxes, water rents, interest on the mortgages, insurance, and whatever other items there are of that nature, and that during the first year she shall pay an aggregate amount of at least $8,000, and that whatever portion of the $8,000 so paid is above the expenditures necessary for the fixed charges shall be credited on the purchase price. During the second year she shall pay at least $10,500, and in making that expenditure she shall apply it first to the fixed charges already referred to, and the balance of that amount shall be credited, at the times named, on the purchase price; and during the years succeeding the second year the same course shall be pursued. Assuming that the fixed charges were believed by the parties at the time to be about that indicated by the pencil memorandum, it is apparent that they contemplated that it would take about four years to discharge the agreement, assuming $20,000 or $21,000 to have been the amount of cash to have been paid in the aggregate.
    It is contended on the part of the complainants that they are entitled to the reformation of the agreement because of the fact that the real bargain that was made was that the amount of cash to be paid should be $10,000, instead of the amount named in the agreement. In other words, that the purchase price of the property was $55,000, instead of $65,000; $28,000 of that amount being represented by a hirst mortgage already existing on the property, $16,000 being represented by the amount due on the second or $17,000 mortgage already existing on the property, and the balance up to $55,000 making the amount of cash to be paid.
    So far as complainant Mrs. Kunz is concerned, I am entirely satisfied that her testimony upon the witness stand to the effect that, when she signed this agreement, she believed the purchase price of the property was $55,000, is true. I am not able, after listening to her testimony, to believe that she was willfully falsifying any statement which she has made. She impressed me as a truthful woman and a woman who was testifying to what she believed to be the truth, and under the evidence that exists I can readily conceive that she probably did believe when that agreement was executed that she was getting that property for $55,-000. Whether she believed it at that time or not, she certainly is sincere in her statement to that effect at this time, and I am prepared to treat it as a fact that she now believes that, and that she in all human probability then believed that she was obligating herself for the payment only of the amount of $55,000. There are so many circumstances which lead me to think that that was her belief at that time that I am practically compelled to accept it. The fact that she is a woman who cannot read and write, and was dependent on her impressions as she gathered them1 from what she heard, rather than what she read, alone goes far toward leading me to believe that the facts probably are that she thought she was buying a property at $55,000. The pencil memoranda also go far to corroborate her statements. I can reach that conclusion very readily without having to resort to the testimony which I think is not competent evidence, namely, the testimony which was offered to the effect that she has stated to others at a time prior to the time that any controversy arose that she had paid $55,000 only for the property. -
    It is undoubtedly true, however, that no mistake upon the part of Mrs. Kunz touching the contents of the written agreement which she executed can entitle her t’o a reformation unless the mistake was a mutual mistake; that is to say, if the reformation is to be had upon the ground of mistake only, it must have been a mistake that was mutual between her and Mr. Mason, and counsel for complainant has stated that he does not now contend that the evidence supports a finding that there was a mutual mistake between the complainants and the defendants as to the consideration of the agreement in question. In other words, Mr. Mason knew that the agreement provided for $66,000, and he did not execute an agreement which he believed called for $55,000 only. That fact alone denies the relief of reformation upon the ground of mistake.
    It is contended, however, and with a great deal of force, that the facts of the case, as they must be ascertained by the evidence before the court, disclose fraudulent conduct upon the part of Mr. Mason, or, if not fraudulent conduct, then they disclose conduct upon his part in which he abused the confidence which the complainants were entitled to-bestow in him, and abused that confidence in such a manner that complainants are entitled to the equitable relief now sought.
    I entertain the view of the law, suggested by counsel, that if the fact is found to be that Mr. Mason was an agent of the trust company for the sale of this property, which at that time belonged to the trust company, and that agency authorized him to sell the property for $55,000, and he, under the circumstances which existed, with the property in his hands for sale at that amount, ascertained that complainants were willing to pay $65,000, and took their money and went down to the trust company and made the purchase in his own name, or in the name of his son-in-law in his own behalf, using the money of complainants to complete that purchase, that his conduct would be of such a nature that complainants would be entitled to be relieved to the extent of the added amount; they would be entitled to be relieved from the excess $10,000, which is now in dispute. I think that would be an equitable disposition of the case if the evidence justifies the finding of the facts stated.
    I cannot believe, however, that any person could listen to the testimony of Mr. Mason upon the witness stand and believe that the transaction was of that nature. I do not think that anyone could listen to the testimony of Mr. Mason and believe that he willfully misrepresented any fact, nor do I believe that anyone could listen to his testimony and help but believe that he was telling not only what he believed to be true, but also telling the literal truth, when he said he bought the property before he knew or had any dealing with the complainants in this case, and before he knew that the complainants in this case were prospective purchasers of the property. I believe Mr. Mason’s testimony when he says that he bought this properly for speculation, without a prospective purchaser in sight or in contemplation, and bought it with the idea that, should he fail to find a purchaser, some members of his" family to whom he referred could operate the hotel to advantage, and that eventually he would make a good thing out of it. I am satisfied that he states the truth when he says that a considerable time prior to his knowledge of the existence of complainants he had made the proposition to the bank and had agreed to pay them $55,000 for the property and considered the transaction closed. These statements on the part of Mr. Mason, I say, I am forced to believe. In corroboration of Mr. Mason’s statements, the former agent of the property, an associate of Mr. Mason, was very positive in his statements. His testimony, as far as it goes, fully corroborates Mr. Mason’s statements. He says that Mr. Mason did not know, and had no means of knowing, that he was handling this property for the trust company, and did not know through him, at least, that complainants were contemplating the purchase of this property at any time until he introduced the subject, and at that time Mr. Mason had made the purchase. The testimony of the clerk of Mr. Mason is corroborative, so far as it goes, but does not carry, as I view it, very much weight. His testimony is along the line which we would anticipate from a clerk in the office engaged in routine work; but at the same time it is corroborative of the other testimony.
    I am obliged therefore to find the fact to be that Mr. Mason, at the time he first came in contact with or knew of the complainants, was not and had not been an agent of the trust company for the sale of this property, and that he was not guilty of any fraudulent or inequitable imposition upon the complainants in making a sale of this property to them, and that at the time he first met them he regarded himself as the owner of this property. While he was not in law the owner of the property, and, perhaps, had no papers which would have entitled him to enforce specific performance of the agreement of sale upon the part of the trust company, yet he regarded himself as the owner at that time, and in treating with the complainants, in my judgment, treated with them honestly and fairly, and owing to the very peculiar conditions which arose, and which had theretofore existed, Mrs. Kunz very naturally may have made a mistake touching the amount she was agreeing to pay for the property. If the fact be that Mr. Gampher telephoned exclusively to Mr. Kunz, then Mrs. Kunz may not have become acquainted with the fact that the price was to be raised, although she was acquainted with the fact that the terms had been made extremely easy.
    The second branch of the case is, I think, equally conclusive in its character. This agreement was made in 1902, and was an agreement in writing containing upon its face the amount of the purchase price of the property, and we are asked six years later, for the first time, to reform the agreement. It is undoubtedly true that such delay may be excused; but I cannot think it can be said to be excused in this case. During the period between 1902 and 1904 the complainant Mrs. Kunz did not know, as she claims, that the agreement called for $65,000 instead of $55,000; but that discovery was made in 1904, and it was then her duty to act. What she did was to acquaint her husband with the fact and to ask him to see Mr. Mason, and thereafter she never ascertained whether he had seen Mr. Mason or not, notwithstanding the fact that she says she was worried about it until she was made sick over it. In failing to take some step, or to see that some steps were effectively taken, to procure a correction of the mistake or fraud which she at that time ascertained to exist from her standpoint, I think she has denied to herself the right to equitable relief two years later, at a time when the agreement is being enforced against her.' Since the time she discovered the mistake in the agreement she has been enjoying the occupancy of the property. Mr. Mason has been continuing to advance money to meet the payments called for by the terms of the agreement, and yet during that period of two years she has not been sufficiently vigilant to even ascertain whether or not the alleged mistake has been brought to the attention of Mr. Mason. I think such conditions must be held to operate as a bar to equitable relief sought at so late a date. My conclusion will be that complainant is not entitled to relief from any portion of the expressed consideration as it appears on the face of the agreement.
    Under the stipulation which counsel have made, if it is still sought to have an account taken of the amount due, a reference will be made to a person to be agreed upon to have the account stated. Have counsel made any effort to agree upon a person ?
    Mr. Cole and Mr. Garrison: We will agree upon Mr. Bourgeois.
    The Vice-Chancellor: Let the reference be made to Mr. George A. Bourgeois, as special master. I deny the relief prayed for in the bill so far as it is based upon the averment that the consideration was $55,000 instead of $65,000. I adjudicate nothing touching the amount due. That is to be ascertained.
    Mr. Clevenger: A decree will be for the specific performance of the $65,000 contract and the order of reference to Mr. Bourgeois to state the account.
    Mr. Garrison: I won’t agree to an accounting unless we can get this back this term. If they cannot do that, I do not want to ágree to it. I think Mr. Bourgeois, if you will explain the situation to him, will probably do this by next Monday.
    The Vice-Chancellor: You may prepare your order in which it is ascertained that the agreement will not be reformed, and that the matter will be referred to Mr. Bourgeois, as a special master, to report at the earliest possible date as to the amount due under the agreement.

      Messrs. Wilson, Carr & Stackhouse, for the appellants.
    d/essrs. Garrison & Voorhees, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion of Vice-Chancellor Learning, delivered in the court below.

For affirmance—The Chiee-Justice, Garrison, Swayze, Eeed, Trenoi-iard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgh, Vroom, Gray, Dill, Congdon—15.

For reversal—None.


text:
    Harry C. Haskins, appellant, v. Thomas F. Ryan, respondent.
    [Argued March 9th, 1909.
    Decided June 14th, 1909.]
    On appeal from an‘order of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 71 N. J. Fq. (1 Bueh.) 575.

      Mr. Robert Jff. McCarter, for the appellant.

      Mr. Richard V. Lindabnry, for the respondent.
   Per Curiam.

The order appealed from will be affirmed, for the reasons stated in the opinion of Vice-Chancellor Stevens, delivered in the court below.

For affirmance—The Chief-Justice, Garrison, Reed, Parker, Bergen, Yoorhees, Bogert, Yroom, Gray, Dill—10.

For reversal—Swayze, Minturn, Yredenburgh—3.


text:
    Worthen & Aldrich Company, respondent, v. White Spring Paper Company, appellant.
    [Argued March 9th, 1909.
    Decided June 14th, 1909.]
    On appeal from a decree of the court of chancery advised by Yice-Chaneeilor Howell, whose opinion is reported in 74 N. J. Eq. (4 Buck.) 647-

      Mr. Albert G. Wall, for the appellant.

      Mr. William I. Lewis, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion of AUce-Chancellor Howell, delivered in the court below.

For affirmance—-The Chief-Justice, Garrison, Swayze, Reed, Parker, Bergen, A^oorhees, Minturn, Bogert, A^reDENBURGH, YROOM, GRAY, DlLL—13.

For reversal—None.


text:
    Harry G. Coder, respondent, v. Margaret E. Coder, appellant.
    [Argued March 10th, 1909.
    Decided June 14th, 1909.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson.

      Mr. J. Merritt Lane, for the appellant.

      Mr. Joseph N. Noonan, for the respondent.
   Affirmed June 14th, 1909.

For affirmance—The Chiee-Justice, Garrison, Swayze, Eeed, Parker, Bergen. Voorhees, Minturn, Bogert, Vre-DENBURGH, VROOM, GRAY, Dili—13.

For reversal—None.