author: Pitney, V...C.

text:
    The Travelers’ Insurance Company of Hartford, Connecticut, v. James J. Grant, administrator of Frank E. McNichols, and Martha E. McNichols, administratrix of the same person, deceased.
    1. A policy of life insurance payable to “ the legal representatives of the assured” may be made the subject of a gift in the same manner as a bond or other moneyed obligation, with the same results.
    2. Such gift may be effected by the mere delivery, without assignment, of the instrument, accompanied by such verbal or written words as indicate a clear intention to give, and its subsequent retention by the donee.
    3. In such case the donee, if he or she have an interest in the continuance of the life of the assured, will be entitled, in equity, to the money due upon the policy at its maturity, notwithstanding it contains a clause forbidding any assignment except with the consent of the insurer. Such prohibitory clause cannot prevent the vesting of an equitable interest in the proceeds of the policy.
    4. A person whose domicile was originally in New Jersey and who had a wife and family residing there, acquired a domicile in Ohio and died there insolvent. Letters of administration were taken out, first 'in Ohio by a resident there, and later by his widow in New Jersey. He had given his wife a policy of insurance upon his life, payable to his legal representative, the annual premium upon which was less than the amount allowed by the laws of Ohio to be set apart annually in life insurance by a husband for the benefit of his family. Both administrators brought separate suits at law against the insurance company upon the policy so given to the wife and in her possession — one in Ohio, the other in New Jersey. The insurance company filed a bill of interpleader in the chancery court of New Jersey, paid the money into court; the Ohio administrator appeared and claimed the fund for the purpose of paying the Ohio creditors; the New Jersey administratrix claimed it as her own money, after paying the New Jersey creditors to the extent of premiums paid after the accrual of their debts. — Held, that the Ohio administrator was not entitled to the fund, but that it should be paid to the New Jersey claimant, subject to the rights of the creditors.
    Bill of interpleader. Heard on pleadings and proofs upon issue joined between the defendants.

      This is a bill of interpleader. The contesting defendants are, on the one part, James J. Grant, administrator cum testamento annexo of Frank E. McNichols, deceased, appointed by the probate court of Stark county, Ohio, January 17th, 1894; and, on the other part, Martha E. McNichols, individually and as administratrix of said deceased, who was her husband, by letters issued to her at a date subsequent to January 17th, 1894, by the orphans court of Camden county, in this state.
    'The subject of the contest is the sum of $3,181.50, paid into court by complainant as the amount due upon two policies of insurance issued by it upon the life of the decedent, and to recover which a suit was brought in an Ohio court by the defendant Grant, as administrator, and later, another in the supreme court of New Jersey by the defendant Martha McNichols, as administratrix.
    The decedent died on the 10th of January, 1894, testate of a will which dealt solely with the proceeds of a third policy of insurance, issued upon his life by another company, and wholly intestate as to all other property, including, of course, the policies which produced the fund here in controversy. The latter were, from shortly after the time of their issuance, in the possession of Mrs. McNichols, the defendant, who had her residence in this state. She sued the complainant as administratrix, but claims here both as administratrix and in her individual right as donee of her husband, the deceased.
    The domicile of birth and residence for many years, of the deceased, was in New Jersey. He married and kept house here for many years, with his wife and their children, four daughters, still living. His business was that of a contractor for public works, and he followed it at a distance from his home, and finally located at Canton, Ohio, and acquired a residence and voted there for two or three years before his death, which occurred there. All the time, however, he maintained his wife and daughters in this state, in a house which he provided for them, and visited them frequently.
    The first policy in the complainant company was issued July 18th, 1885, for $1,000, subject to an annual payment of $32.40, and declared to be payable “ to tlie legal representatives of the assured,” and containing a provision
    ■“that no assignment of this policy shall he valid unless made in writing indorsed hereon, and unless a copy of such assignment shall he given to this company within 'thirty days after its execution; and any claim against this company, arising under this policy, shall be .subject to proof of interest. It is also agreed that the company shall not be held responsible for the validity of any assignment.’’
    The second' policy was issued june 29th, 1891, for $2,000, subject to an annual premium of $79.30, and is declared lo be payable to “ his ” (McNichol’s) legal representatives or assigns, and contains a proviso that
    “No assignment hereof will be noticed by this company unless made in writing, the original or a copy attached hereto, and a copy furnished this company immediately on its execution; but this company will not be held responsible for its validity.”
    These policies were, shortly after issuance, sent through the mail by McNichols to his wife, with a letter stating in substance that he gave them to her for her own benefit. The letter which accompanied the first policy has been lost, but its contents are satisfactorily proven by both Mrs. McNichols and one of her daughters. That accompanying the second policy has been preserved and reads as follows;
    “ Cahton, Aug. 21st, ’91.
    “Deab, Old Domain — Enclosed you will find Policy of Travelers Ins. Co. on my Life for $2000.00 (two thousand Dollars) & Receipt for first year’s Premium. Also Copy of letter acknowledging Receipt of Payment of Premium on the Policy you now have, the Receipt was Lost in Transit by Mail. So they Send me copy of letter in Duplicate and will Send me Duplicate Receipt Soon as they can get it from Home Offices.
    “Preserve this letter, & in the Event of anything Happening to me you would have no Trouble in Proving your Claim. This Policy is Entended for you alone.
    “Love to all.
    “ H. & P.” (meaning Husband and Papa.)
    Creditors’ claims to a small amount for debts incurred in this state have been presented to the administratrix here, and claims for debts incurred in Ohio, amounting to about $18,000, have been presented to the Ohio administrator and allowed by him. The assets of the estate in Ohio, including the policy of life insurance disposed of by the will, amount to from $12,000 to $15,000, showing a deficiency sufficient to absorb the whole of the fund in court if awarded to the defendant Grant. There are no assets in this state other than the fund here in question. No proof was given as to when any of the Ohio debts originated, A part of them are secured by a mortgage upon lands owned by deceased and which form a part of the assets above mentioned.
    A statute of Ohio was put in evidence authorizing a debtor to invest a sum not exceeding $150 per year in insurance on his life for the.benefit of his family.

      Mr. Benjamin F. H. S'hreve, for Grant.

      Mr. John F. Harned and Mr. Schuyler C. Woodhull, for Mrs. McNichols. . • ■
   Pitney, V...C.

A consideration of the facts shows that the controlling question in the case is whether there was an effectual gift by the husband to the wife of the policies in question which entitles her, as against the next of kin and creditors, to the fund in court. For conceding, as I think I must upon the evidence, that the domicile of the decedent was in Ohio, yet it was not contended that the letters of administration granted in this state to. the widow were void, for want of power, but their validity was conceded. The argument was that - the Ohio administration must be taken as the principal, and the letters granted here as ancillary merely.

But granting this subordinate position to Mrs. McNichols, it does not follow that the fund must be awarded without question to the principal administrator. The policies were found in this state at the decedent’s demise, and the foreign administrator did not bring suit here to recover their possession. The fund is in this state. The foreign administrator has submitted to the jurisdiction of this court. The next of kin (assuming that.the laws of Ohio designating who shall be considered the next of kin of a decedent correspond with our own) are all residents of this state, and the fund is claimed as against the next of kin and creditors by a resident of this state, who is a party to the suit and has submitted her claim for adjudication in this court. Under these circumstances, I think this court ought not to send this claimant and the next of kin to a foreign tribunal to litigate over the fund.

The facts of the case are similar, in the main, to those under consideration in Morrill v. New England Insurance Co., 103 Mass. 245, except that the questions arose there upon the trial of the suit at law brought by the ancillary administrator against the insurance company pending the suit first brought by the principal administrator in the court of his domicile, and the transfer of the policy was in pledge to secure, a debt of the assured of less amount, with written directions by the assured to the pledgee to pay the surplus to the heirs of the insured, who lived in Massachusetts. It was held, after full consideration of the rights of the principal administrator, that the ancillary administrator was entitled to recover. And see Story Confl. L. § 514 et seq.

This brings us to the consideration of the question of the validity of the gift.

It seems to be well settled that bonds and other non-negotiable obligations for payment of money may be the subject of a valid gift, and that a delivery of the obligation to the donee, without written assignment, but with a clearly-manifested intention to make a gift, is sufficient to satisfy the rule requiring delivery of the thing given. The sensible rule is that the delivery must be such a tradition as the nature of the subject admits of. And surely the delivery of the formal writing which evidences the debt and forms the foundation of the right of action is the best and only delivery of which the subject is eapable. Snellgrove v. Baily, 3 Atk. 214; Duffield v. Hicks, 1 Dow & C. 1; S. C., 1 Bligh (N. S.) 497; on appeal from Duffield v. Elwes, 1 Sim. & S. 239; Veal v. Veal, 27 Beav. 305; 6 Jur. (N. S.) 527; 29 L. J. Ch. 321; Grover v. Grover, 24 Pick. 261. m The same has been decided as to savings bank pass-books. Tillinghast v. Wheaton, 8 Rev. L. 536; 5 Am. Rep. 621; Camp’s Appeal, 36 Conn. 88; Sheedy v. Roach, 124 Mass. 472; Bond v. Bunting, 78 Pa. 210.

The law is settled in this state, as to promissory notes, in Corle v. Monkhouse, 5 Dick. Ch. Rep. 537 (at pp. 543, 544), by the late Vice-Chancellor Van Fleet. The cases cited refer to bonds and notes not payable to. bearer, and not assigned or endorsed by the donor.

In such cases it is held that where the strict rules of the common law prevent the donee from suing in his own name upon the unassigned instrument, he is entitled to sue in the name of the donor or his personal representative to the donee’s use. See Thornt. Gifts § 267 et seq.

I am unable to perceive any distinction- between a bond or promissory note and a policy of life insurance. Each is a contractual obligation to pay money at a certain time. If the mere delivery of a common money bond, or of a promissory note not payable to bearer, without assignment of the one or the endorsement of the other, but accompanied with words of gift, is sufficient to entitle the donee, as against the donor and his representatives, to demand and receive the money from the obligor or promissor, then I am unable to see any reason why, under like circumstances, the donee of a life insurance policy should not be vested with like rights. The authorities so hold. Witt v. Amis, 1 Best & S. 109, 7 Jur. (N. S.) 499, was an action of trover by the personal representative of a decedent whose life had been insured to recover possession of the policy from the defendant to whom she had given it by simple tradition, without written assignment, but accompanied by words of gift. The court of queen’s bench, after consideration by Chief-Justice Cock-burn, held that there was no distinction between a bond and a policy of insurance in this respect and gave judgment for defendant. About the same time (but whether before or afterwards does not clearly appear) a bill was filed in equity to perfect the gift and to get actual possession of the fund, and Lord Romillyheld that the donee of the policy was entitled to the money due upon it. Amis v. Witt, 33 Beav. 619. And this is the settled Jaw, although Lord Cairns afterwards, in Rummens v. Hare, L. R. 1 Ex. Div. 169 (1876), in delivering-judgment of-the court of appeals in a case like Witt v. Amis, said that the right to the possession of the policy did not fully determine the right to the moneys due upon it. Such remark was thrown out merely to guard against prejudicing any equitable rights in the fund which might exist in other persons;, the only question submitted to the jury in that case being as to the right to the possession of the. document.

The distinction between the ownership of a policy of life insurance and- the ownership of the money to be paid thereon upon its maturity arose out of-the administration of the English bankrupt laws applied to a policy upon the 'life of a bankrupt yet living, the question being as to what-chattels-were “within the disposition of the bankrupt.” . Gibson v. Overbury, 7 Mees. & W. 555; Green v. Ingham, L. R. 2 Com. Pl. 525 (1866). In Phipard v. Phipard, 55 Hun 473, an executrix collected the moneyidue.on a policy of-life-insurance found'among-the- testator’s papers, to -which was attached a. paper in his handwriting declaring that it was for the benefit-of his children, and it was held-that the children were entitled to recover-the amount from- the executrix. In the “Appeal of Madeira,” in the supreme court of Pennsylvania, 4 Wtl. Rep. 908, the question was elaborately argued and fully considered, and it was held that a husband could effectually give to his wife by parol, without assignment, but with the delivery of the. writing, a policy on his own life payable to -his legal representatives.

In Janes v. Falk, 5 Dick. Ch. Rep. 468, our own court of errors and appeals .held: that a person holding a policy of life insurancé on his own life could pledge it as security for a debt which he owed to an estate of which he was- an executor, by simply placing it among the papers of the estate in his own possession with a note or memorandum that it was held for the benefit of- the estate. The contest was between a judgment creditor of the deceased, who had procured a vesting order under supplemental proceedings during his lifetime, and the representatives of the estate to which the deceased was a debtor. There was in that case a formal assignment of the policy executed by the decedent after the vesting order took effect, and dated back to precede it, but the court relied only upon the original deposit and memorandum, and not upon the assignment. The point of the case, for present purposes, is that the policy of insurance was treated as any other obligation.

Finally, in the recent unreported case of Logan v. Logan, in the prerogative court of this state, upon appeal from the Camden orphans court, the present chancellor has substantially decided the very question. There the widow, who was administratrix, had already collected the money, and the question was whether she should be charged with it. There being satisfactory proof that testator had given and delivered the policy to his wife in his lifetime, the learned chancellor held that she should not be charged with it as administratrix.

The counsel for Mr. Grant, however, rested his elaborate and able argument mainly upon the ground that, by the terms of these policies, no interest could vest in the donee unless a formal assignment, endorsed thereon, was executed and notice given to the insurer. The clauses regulating assignments are not' the same in both policies; that in the first policy is much more rigorous than that in the other, but I think neither can have any effect upon the present issue. The contest, so far as the complainant is concerned, was not between assignor and assignee, but between the two several personal representatives deriving authority from separate jurisdictions, and each claiming the money, not as ¿ssignee, but as personal representative. The only defence complainant could have to either was that judgment had been recovered by one and the money paid. The complainant being thus subject to two suits, came voluntarily into this court and asked to be discharged from all liability, upon terms of paying the money, here. This has been done. The foreign administrator has submitted to our jurisdiction, and the question to be determined is, which of these personal representatives shall have the money? The one'appointed by the court of this state claims it because she will hold it, when received, in trust for herself after paying certain creditors domiciled here. The question was raised in Morrill v. New England Insurance Co., supra, and it was held that such a clause could not be set up in that case, which we have seen is similar to this. To the same effect is Marcus v. Insurance Company, 68 N. Y. 625, reversing the same case as reported in 7 Hun 5. There the action was brought by the donee without assignment, against the insurance company, and recovery was had, notwithstanding a restrictive clause against assignments.

Counsel, however, relies upon the case of Stevens v. Warren, 101 Mass. 564. That was an interpleader in equity, brought by the administrator, who had collected the money, to compel the next of kin and an assignee of the policy to litigate as to the right to the fund. The policy contained a clause like that in the first policy herein, and the assignee had no interest in the life of the assured. The court based its decision against the assignee mainly on the ground of public policy, it being the rule iu Massachusetts “ that no one can have an insurance upon the life of another unless he has an interest in the continuance of that life.” The court said that the purpose of the clause found in the policy there under consideration was to guard against the “increased risk of speculating life insurance.” The case has no application here, because, first, the wife had an undoubted interest in the continuance and prolongation of her husband’s life; and second, the complainant voluntarily paid the money into the court of a state whose courts have not adopted the policy in question, viz., that against life insurance in favor of parties who have no interest in the prolongation of the life of

the assured. The authorities are Trenton Mutual Life Insurance Co. v. Johnson, 4 Zab. 576; Martin v. Insurance Company, 9 Vr. 140, 141 ; De Ronge v. Elliott, 8 C. E. Gr. 491 ; Vivar v. Supreme Lodge of Knights of Pythias, 23 Vr. 455 (at p. 469); and see upon the general subject, Am. Law Rep. & Rev., Feb. No., 1896, and cases cited.

The counsel further relied upon the case of American Legion of Honor v. Smith, 18 Stew. Eq. 466, also an interpleader. That case has no application here. The wife was origiually named as the beneficiary in the policy or certificate which was issued by a company whose charter required that the benefits of membership should go to a certain class of relatives. The donor had attempted to change the beneficiary without the consent of the person originally named, and without surrendering the original certificate, or otherwise conforming to the rules of the society governing such change. Clearly, the- donor having once named the beneficiary and delivered the certificate to her could not revoke it and give it to another without the consent of the first beneficiary, unless- he did it in strict accordance with the terms of the right of revocation and change prescribed by the charter, constitution and by-laws of the association, which in that class of cases form a part of the contract between the parties. To hold otherwise would be to sanction an unlawful interference with vested rights.

Several other cases were cited by counsel for Mr. Grant, which upon examination turn upon substantially the same questions as did the case last referred to. ■ None of them go so far as Stevens v. Warren, supra; and I find no well-considered authority for the position that the beneficiary named -in an ordinary policy of life insurance may not create an equitable interest therein in his wife or other person interested in the prolongation of his life which shall bind his legal’- representatives, without the sanction of the company which writes the policy, notwithstanding it contains a clause like that here in question.

I conclude, therefore, that the clauses in question do not stand in the way of the vesting in equity of this gift.

Nor do I find any ground for holding it void as a testamentary disposition. It was a gift in prcesenti of the policy and all the donor’s interest in it. The donor could not recall the gift, and the donee might have herself paid the premiums and kept the policy alive if the donor had failed therein. Every payment of premium made by the husband was an additional present irrevocable gift to his wife. Every such payment made was, under the circumstauces, a ratification of the original gift of the policy.

I am satisfied that the case in hand makes a valid gift to the wife, and that she is entitled to the fund, except as against such creditors in this state whose debts arose prior to any of the payments. As to those the gift is void, on the ground that it is a fraud upon creditors. Merchants’ and Miners’ Transportation Co. v. Borland, 8 Stew. Eq. 282

A statute in Ohio authorizes a husband to set aside a sum, not exceeding $150 a year, to create a life insurance in favor of his wife or family. The result is that, so far as the creditors in Ohio are concerned, they can have no claim. They are properly represented by the foreign administrator.

With regard to the next of kin, who are the only parties besides creditors.who are interested adversely to Mrs. McNichols, they must be ascertained also by the statutes' of Ohio, and for thé purpose of proving those statutes the case may be opened. As one of the children is an infant, Mrs. McNichols’ cross-bill may be amended by making the children parties, and if it shall ■turn out that Mrs.- McNichols and her daughters are the only next!of kin, then a decree can- be made which shall bind them, and the fund may be awarded finally'to Mrs.'McNichols in her individual capacity, but such decree cannot bind the creditors in New Jérsey, .who are- not here1 properly represented by Mrs. McNichols, because their interests are adverse. Hence, no decree can hete be conveniently-made which will bind them, 'but Mrs. McNichols, as- ádministratrix-, will- be liable to be called to account by them in the orphans court of Camden county.


source: Caselaw Access Project

author: Pitney, V.- C.

license: Public Domain

text:
    Richard L. Powell v. John H. Cash.
    1. It is the duty of the owner of a going business, whose value consists in part of good will, who proposes to sell an interest therein to an incoming partner, to make a full, fair and complete disclosure to the purchaser of all matters tending to affect the value of the good will.

      2. In such case if the success of the business depends upon the personal knowledge and business capacity of the vendor, and his health is such as to render it doubtful if he will be able to give personal attention to the business, it is his duty to disclose his disability to the incoming partner before entering into a partnership agreement by which he covenants to give such personal attention.
    3. If, after entering into such partnership articles and before the partnership actually commences, the vendor finds there is danger that his health will not permit him to continue in the business and give it his personal attention, he should, on the request of the incoming partner and in the absence of any change of circumstances working an equitable estoppel, consent to a rescission.
    On final hearing- on bill, answer and proofs.

      Mr. John Griffin, for the complainant.

      Mr. Craig A. Marsh, for the defendant.
   Pitney, V.- C.

Complainant by his bill asks to be relieved from a partnership agreement- in writing entered into by him with the defendant, and-to.be repaid a certain sum in cash and-a promissory note paid and delivered to defendant thereunder, as payment for a share of-the partnership plant and business. '

The grounds of the relief are, first, that the defendant misrepresented the value of his business to complainant, or, at least, did not give complainant such a full and fair statement of its value as under the circumstances complainant was entitled to; and second,' that he did not intend, in good faith, to form a continuing partnership, but adopted the device of a partnership agreement as a means to sell out his business and entirely withdraw therefrom, and was unfit physically to perform the duties involved.

The partnership agreement is dated on the 24th of November, 1894, and provides for the formation of a partnership under the firm name of “ Cash & Powell,” for the purpose of carrying on and continuing the established business theretofore owned and conducted by Cash, consisting of a printing establishment for general job printing, and also for printing, editing and publishing a newspaper at Westfield, Uuion county, New Jersey, called “ The Westfield Leader.” The plant and good will were valued at $3,000, and complainant was to, pay the defendant $1,000 for a one-third interest therein, and was to contribute in addition thereto $100 as working capital, and defendant was also to contribute a like sum of $100 as working capital. There was the usual clause that neither party would engage in any other business during the continuance of the partnership, but use their best efforts for their mutual advantage and the increase of the stock, business and profits. No time was fixed for the continuance of the partnership, but the provisions' of the agreement contemplate a long continuance. The actual practical commencement of the partnership was to be on the 1st day of July, 1895.

At the time of entering into the contract, the complainant was about thirty-five years of age, and his occupation was that of school teaching, in which he was engaged in Bergen county, and he had no knowledge or experience whatever of job printing or conducting a newspaper. The defendant had established and conducted the newspaper for several years, but was himself not fitted to look after the editorial department, and had been obliged'' to hire that part of the work done. '

On the 21st of October, 1894, there appeared in the New York “Tribune” a notice as follows: “Wanted, partner; newspaper and printing,- 18 miles from city, in flourishing town. Small capital required, if right man. Address C. E., Tribune office.” The complainant wrote the defendant by the address so given, on the 22d of October, and received a reply from defendant dated the 24th of October, in which defendant intimated that he wished a partner who could act as editor of the paper, and invited him to come and see him and the newspaper. On the next Saturday, October 27th, complainant visited the defendant, with whom he had no previous acquaintance, at his office in Westfield, and introduced himself, and swears positively that on that day he asked the defendant as to the net income of the paper, and that the defendant said it -was over $100 a month. The defendant:denies this, and states that he never, at any time, stated what the income of the paper was, and that he professed ignorance of it. But the complainant’s story is supported by pencil memoranda made by himself, and written down, as he swears, at the moment, in the presence of the defendant, in the office of the newspaper, on the back of the letter which defendant had written him and the envelope in which it was posted. These memoranda are a list of the principal items of the material plant, and then the following figures, which complainant swears he took from the lips of the defendant, viz., that the job work amounted to $75 a month, the advertising to $100 a month, and the subscription and sales of newspapers to $20 a month, making a total of $195, and that the expenses were $80 a mouth, leaving a net income of $115 a month. Complainant further asked for the weekly details, and they were given to him as $25 a week for advertising and $5 a week for subscriptions and sales; and other items were given him as being the actual receipts for previous months. Valuations were also put upon the different articles of plant. All these appear on the back of the letter and envelope written by defendant to complainant on October 24th, 1894.

The defence of the defendant to this part of the case is that all the information that the complainant got as to the income of the newspaper was derived from his own inspection of the books and files of the newspaper themselves; but there was no pretence on the part of the defendant that there was any such inspection made by the complainant on this first visit, October 27th.

Rot satisfied with that interview, complainant went again on Saturday, the 3d of November, and had in his pocket a passbook in which he had written in ink beforehand certain matters upon which he wished to have definite information, to wit, the items of the income of the paper and the items of expenses. ■On that occasion, as he swears, he sat down in the publication office with the defendant, who handed him some blank writing paper, and upon it he took down from defendant’s dictation the items of receipts and disbursements for twelve months past, which the defendant gave him himself, partly from the cashbook and charge-book for job printing, and partly from the files of the newspaper and contracts for yearly advertisements. Those memoranda have-been produced, and their appearance strongly attests their genuineness. They show as follows : That there were various yearly advertisements in the newspaper which amounted in the aggregate to" $484, and various weekly advertisements which amounted in a year to $905.84, making a total of $1,389.84, to which were to be added certain special-advertisements or extras, as they were called, which amounted to -$146, making a total of $1,535 for advertisements. These, -it will be observed, could, only be taken - accurately from a copy of the newspaper by a person-who was familiar with the-charges for advertisements and knew which were inserted by the year and which by the week, and, after all, their accuracy depended upon whether the particular number of the newspaper from which they were taken represented a true average-of the weekly advertisements. - It would be quite impossible for the complainant, who was entirely inexpert in the business, to get those figures without the assistance of the defendant. The defendant gave him the amount of job work for twelve months past, which footed up $539.65. Then he gave him the subscriptions and sales at $159, making a total of $2,233, or $186 a month, which, deducting $80 a month for expenses, left- a net monthly income of $106, or $9 less than what the defendant had represented to him just a week previously. These memoranda are produced and supported by the oath of the complainant, and I consider them reliable. In addition to that, defendant gave the items of the expenses in making up the $80 a month — for rent, $12; for typesetting and work in the office, $28 a month; editorial service, $24 a month; supplies, paper &c., $-11.30 a month; job paper and coal &c., $5 a month, making a total of $80. Then, according to the complainant’s story, the defendant took off from the cash-book the actual receipts in cash for twelve months previous to that date in monthly items, and complainant wrote them down in his pass-book, and they amounted to $1,805.91. When asked how he accounted for the difference between $-1,805.91 and $2,233, taken from the files of the newspaper, he said the balance was receipts for advertisements paid in trade.

The defendant and his witnesses swear, that this examination of the books, contracts aud newspaper files was made .by the complainant personally, aud that he had abundant opportunity to ascertain the whole income of the paper. But I am satisfied that the complainant’s account is substantially true, and that he was. quite incapable of himself estimating from an examination of a single copy of the newspaper, or of the files, or of the books, all of which were produced in evidence, what the actual net income of the newspaper was; that, in fact, he had not time to do so, and that he must have relied upon the defendant’s statement.

On that day — the 3d of November — a preliminary agreement was executed between the parties, which was finally merged in • the agreement of November 24th.

At the execution of the agreement the complainant paid the, defendant $600 in cash, and gave him a non-negotiable note for $400, strictly in accordance with the terms of the agreement, and set about fulfilling his part of the contract.

Subsequently and shortly after the 13th of January, 1895, complainant’s attention was called to an advertisement in a New York papery in these words :

“For sale — -Two-thirds interest in a country weekly newspaper, eighteen miles from city; prosperous town; good opening for job printing trade. Address J. J. W., Tribune offibe.”

He thereupon wrote a decoy letter, dated Auburn, Salem couuty, New Jersey, signed in a fictitious name — S. S. Waters— to “J. J. W., Tribune office,” asking particulars, and in reply got the following letter:

“ Westfield, New Jersey, January 22d, 1895.
“S. S. Waters, Esq.:
“Dear Sib — Tours to hand. I have máde no deal yet. If you would like to buy an interest in a paper and a printing business, and want to locate in a growing town, I think it would be to your interest to come out to see me. ‘The Leader’ is established and is doing good business. Tou will know more about what I.have to sell if you will come out to see me, say Saturday, or any time you choose. I have steam in the office and all necessary appliances.
“ Very respectfully,
“J. H. Cash.”

This advertisement and letter excited the suspicions of complainant .that he was merely being made use of by the defendant as a means of getting the latter out of business, and he immediately wrote the defendant, asking to be relieved from his contract and have his money and note returned to him, based not upon the advertisement or any fraud or misbehavior on the part of the defendant, but solely on his (complainant’s) inability to make the necessary payments. In reply to that letter, defendant declined to relieve complainant, and then complainant complained to defendant of his conduct in seeking to sell out, and charged him with not having entered into the partnership in good faith, and stated his suspicions that the business was not worth the money he was paying for it. Further letters passed and interviews took place between the parties, and a close examination was made of the files of the newspaper and the cash and other books of the defendant, in order to ascertain just what the net profits of the business were. There was no pretence that the material — engine, press, type and so forth — on hand would amount, at any salable valuation, to the sum of $3,000, although an inventory was made up which attempted to bring them up to that price. The value of the business consisted not only in the machinery and material on hand, but in the amount of patronage of the office — that is, the good will of the business. As to the result of this investigation, the parties again are not agreed. Complainant makes up a statement of receipts and disbursements taken from the books, which shows that the net income was not more than $600 or $800 a year. Defendant, on the other hand, makes up a statement by which he shows that the net income was between $1,200 and $1,300 a year. I have given these statements the best examination I could, and I conclude that neither of them is entirely reliable. The complainant has naturally belittled the profits, and the defendant has, on the other hand, .naturally inflated them. In order to make them as much as possible, he has taken into account what are called “trade advertisements” — that is, advertisements the pay for which he takes in specific articles. Among them are axle grease, machine oil, encyclopaedia, type for use in printing, which was not charged to expenses, lamps for family use, photographs, revolvers, condition powders for horses, electrotype cuts for use in business, not charged as disbursements, wood for use in business and at his house, millinery and dry goods for his family, crayon pictures, trees for planting, household utensils, clothing, railroad passes, office furniture, Dobbins’ soap, screen doors for his house, silverware, photographic kodak, sewing machine, dinner set, fur cloth, carpets and other things of that sort which could only be disposed of with difficulty and in limited quantities. Some of these articles were, indeed, worked off for cash, aud, as I recollect the evidence, were included in the cash receipts entered on the cash-book. Then, as I understand the defendant’s statement, he makes little or no allowance for bad debts or the natural wear and tear and depreciation in the plant from year to year; and many items which should have been charged to expense account were treated as additions to the. plant, while, in fact, they were no more than sufficient to keep it up to its proper condition. The running, expenses were underestimated.

The complainant charges the defendant with fraud in this respect. It appears that at the early interviews, when asked about the value of his business, defendant stated, as we have seen, that it was worth $100 a month, and when asked about his books said he did not keep any that could be called regular books of account; and in that he was correct. His books consisted simply of blotter entries in three or four different books, one for job printing, another for advertisments, another a list of subscribers to the paper, and another a sort of cash-book. Complainant certainly did have access to these books, but as before stated, I am not satisfied that he made so thorough an examination of them as defendant by his evidence and witnesses tries to prove.

I do not find it necessary to determine the precise issue of 'actual fraud raised by the parties on this part of the ease. I acquit the complainant of any lack of proper vigilance or of any negligence in his preliminary investigation. He was entirely unacquainted with the details and ins and outs of the business, while the defendant was fully acquainted therewith, and, under the circumstances, complainant was entitled to. rely upon the general.statements and representations of the defendant. Moreover, it was the defendant’s duty, when selling an interest in a business with which the complainant was not familiar, in connection with a partnership between the two to carry it on, to disclose in the fullest and completest manner the actual situation, profits and value of the enterprise. This duty arises from the nature of the contract of partnership. It contemplates the utmost confidence in each party and the utmost fairness, frankness and honesty in all their dealings. So that the question here is not whether if Mr. Powell had made a complete purchase of the whole plant at the price agreed on, disassociated with any partnership, the conduct of the defendant would be such as to entitle the complainant to rescind the contract. The rules applicable to.such a transaction are quite different from those applicable to the transaction actually under consideration.

Mr. Justice Lindley, in speaking on this subject (1 Lind. Part. 303), says:

“ The utmost good faith is due from every member of a partnership towards every other member, and if any dispute arise between partners touching any transaction by which one seeks to benefit himself at the expense of the firm, he will be required to show, not only that he has law on his side, but that his conduct will bear to be tried by the highest standard of honor. Thus, if one partner knows more about the state of the partnership accounts than another, and concealing what h'e knows, enters into an agreement with that other, relative to some matter as to which a knowledge of the state of the account is material, such agreement will not be allowed to st'and. This obligation to perfect fairness and good faith is, moreover, not confined to persons who actually are partners. It extends to persons negotiating for a partner, but between whom no partnership as yet exists, and also to persons who have dissolved partnership, but who have not completely wound up and settled the partnership affairs; and most especially is good faith required to be observed when one partner is endeavoring to get rid of another or to buy him out.”

And Mr. Clement Bates (2 Bates Part. § 897) says:

“ There may be a right to rescission or dissolution, with indemnity and return of premium, even where the misrepresentations are not sufficient to sustain an action for deceit.”

And such are the authorities: Redgrave v. Hurd, 20 Ch. Div. 1 (1881-82), where the subject is exhaustively treated by the master of the rolls and his associates in the English court of appeals; Newbigging v. Adam, 34 Ch. Div. 582 (1886), where the subjeet is again exhaustively treated and the previous authorities considered. The head-note of the case is this: “A person who has been induced to enter into a contract of partnership by misrepresentations, not such as would entitle him to bring an action of deceit for damagesj has a right, on the contract being rescinded by the court, to be indemnified against the debts and liabilities of the partnership. This is not giving damages, but is the proper consequence of rescinding. the contract.”

Redgrave v. Hurd, supra, was a case where a solicitor agreed to sell an interest in an established practice to an incoming partner, and representations were made, as here, as to the amount of the net income of the business, and the incoming partner examined for himself the books of the party. Reliance in support of the contract was placed upon the fact that the party attempting to evade it had made an examination of the books himself; but the court held the doctrine, afterwards adopted in this court, with a full citation of the authorities, in Turner v. Houpt, 33 Atl. Rep. 29 (at p. 33), viz., that where untrue representations are made by a vendor to a vendee, the vendee has a right to rely upon them, and the fact that he has had an opportunity to examine, and did examine, for himself will not avail the vendor unless it appears affirmatively that the vendee did rely upon his own examination and not upon the statement of the vendor.

In the same direction is Richards v. Todd, 127 Mass. 167, and Oteri v. Sealzo, 145 U. S. 578.

The case of Uhler v. Semple, 5 C. E. Gr. 288, is not in conflict with the doctriné sustained by the line of cases just cited. There the dispute arose over the actual value of a manufacturing plant disconnected with any good will, which was turned in by a partnership in which the complainant bought an interest, and he was competent to judge, and did make an actual judgment, on the value of that plant. Here the complaint is not of the value of the printing plant itself, but of the good will of the newspaper and business therewith established and in which the complainant purchased an interest.

My conclusion on this part of the case is that the agreement of partnership was entered into under a misapprehension by the complainant as to the actual value of the good will of the business, and that the defendant is so far responsible for that misapprehension as that he ought not to insist upon the continuance of the agreement, especially as he had not in anywise altered his position at the time when the complainant demanded a.rescission. This demand was made promptly and persisted in, and the defendant was, in my judgment, bound in equity to accede to his request and to return him his money and his promissory note.

I am also of the opinion that the complainant has made out his case as to the second ground of recovery, viz., that the defendant was not in a condition of health to warrant him in entering into this partnership. Here it is to be again observed that the complainant was entirely inexpert in the business, knew nothing about conducting a newspaper, and must have relied, and was entitled to rely, upon the defendant’s knowledge of that business and his ability to attend to it. The personal capacity and disposition of the defendant to perform his part of the duties of the partnership was, of course, one of the considerations which induced the complainant to enter into it, and if the defendant was laboring under a personal disability by reason of his health to perform the duties he undertook, he should not have entered into the partnership without disclosing that disability; and when, later on, before the partnership was actually launched, he became aware that he would probably hot be able to continue to perform his duties, he should have promptly informed the complainant and offered him the option of rescission.

The complainant charges, by an amendment to his bill, founded on evidence that came out unexpectedly upon the hearing; that the original object of the defendant in seeking a partner was to use that as a means of getting out of the business advantageously ; and' the evidence certainly does so indicate. The hired editor employed by the defendant wás a Dr. Morse,, a physician, who had retired from practice and was living at Westfield. He was called as a witness by the defendant. He had been the editor for four ■ years. He was asked by the defendant’s counsel if he knew Mr. Powell, and said that he did.

“Q. When and where did you first see him to know him?
“A. Would you like me to relate the circumstances ?
“Q. Yes, sir.
“A. Mr. Cash is a man in delicate health; it was recommended to Mr, Cash that he should get out of the business he was in. * * * ,
“Q. (By the court) — When was it recommended to Mr. Cash that he should get out of the business ?
“A. Previous to that.
“Q. Previous to the time he first advertised?
“A. A year previous to that; I was about to relate to you the circumstances,
“Q. The question was whether you knew that he put the first advertisement in the paper for a partner ?
“A. I knew he did.”

Then on the 13th of January, 1895, after the execution of the agreement, he inserted the second advertisement in the paper which has been already alluded to, and his excuse given on the stand for doing that was that he was advised by a physician that he must get out of the business.

How, this shows that the defendant intended, if practicable, to entirely retire from the business. This he had no right to do, and at the same time to hold the complainant to his contract. He says that he would not have sold out without the consent of the complainant. I should be more ready to place confidence in that statement if he had first consulted the complainant before inserting the advertisement, and had not inserted it in such a blind way. Be that as it may, I think the complainant was not obliged to continue the partnership with a man in such a precarious state of health that he might be obliged at any time to discontinue his personal attention to the conduct of the business, and that it was the duty of the defendant, under those circumstances, to have acceded to complainant’s demand to return him his money and promissory note.

It is urged against complainant that the real reason why he desired to recede from the contract was that he was unable to make the moneyed payments provided for by it. It is probable that such disability actually existed,-but I am unable to see how it is a bar to his relief if he has good grounds for it. It was certainly his duty to state his disability frankly at the.earliest moment to the defendant, and to ask to be relieved, and he did so. If his pecuniary resources had been greater he might have felt that he could afford to undertake the business without the assistance of the defendant, and carry it on for a year or two at a less gain than he had anticipated, in the hope of finally building it up and making a success. But his pecuniary straits forbade such a venture. The evidence shows that he expected, by his exertions in canvassing for advertisements'and-other ener,getic work, to immediately increase the business. ' This he could not do with a sick partner whose health forbade him to be confined to the printing office, attending to that part of the business for which he was peculiarly fitted. Complainant’s inability to meet his pecuniary obligations may lead us to- look with distrust upon his statement of the result of his examination of the books of account and files of the newspaper made in March, 1895, but beyond that I cannot see that it has force.

So with his attempt to sell out to Dr. Morse, the editor, made by letter on March 25th, 1895. The letter was written while his examination of- the books and so forth was being made, and in it he offered to sell out at a loss-of $100. This was in no sense a waiver of his right to a rescission, nor a ratification of the contract. It was evidently based upon the idea that the transfer of interest, if made, would be with defendant’s consent and would end all controversy between them.

Upon the whole case it is- manifest that, after the clandestine manner in which the defendant sought a purchaser for his remaining share of the business and the results of the examination of the real value of the business which followed it, these parties cannot have that respect and confidence in each other which is necessary for successful partnership, and that the complainant is entitled to a dissolution. The only question is upon what terms it shall be had. Shall it be a rescission with the return of the capital contributed, or an ordinaiy dissolution with an accounting ? For the reasons above stated, I think it should be a rescission, and that defendant should deliver to complainant his promissory note and repay him the cash payment, with interest from April 1st, 1895. Complainant is entitled to costs.

I will advise as above.


author: Pitney, V. C.

text:
    Arthur J. Rooney v. Helen F. Rooney, otherwise Barry.
    1. A marriage between parties, one of whom has a lawful husband or wife living, is absolutely void at the common law for all purposes.
    2. There can be, strictly speaking, no deoreé of divorce dissolving such a marriage; the proper decree in such case is one declaring the marriage null and void ab initio.

    '3. Such a decree does not alter the relations of the parties, and its value consists in its effect by way of estoppel, and in bastardizing the issue of the parties to it. :
    4. A court of equity has original.jurisdiction of an action to declare such marriage void, without the aid of any statute.
    5. A statute of this state giving jurisdiction to the court of chancery over-actions of divorce, does not, so far as regards actions for nullity, alter the intrinsic character of the action, or compel this court, in dealing with it, to act upon' principles other than those governing it in ordinary suits.
    6. A man who, being consciously under disability to marry by reason of having a lawful wife living, falsely represents himself to be competent to marry, and thereby induces an innocent woman to go through the ceremony of marriage with him, cannot maintain against her an action of nullity in a court of equity.
    7. The contrary rule which prevails in the English ecclesiastical court does not govern this court.
    8. In a suit for nullity by reason of precontract with a living person, strict proof is required of such prior contract.
    9. An exemplified copy of a paper purporting to be a certificate of a marriage ceremony, signed by a person without any designation of character, and without proof of its genuineness, on file in the office of a clerk of a court of another state of the-Union, without proof of the laws of that state, is not sufficient proof of such'marriage ceremony to sustain a decree of nullity by reason of it.

      Einal healing on pleadings and proofs in open court.

      Mr. Marshall W. Van Winkle, for the complainant.

      Mr. Joseph A. MoCreery, for the defendant.
   Pitney, V. C.

The object of this suit is to procure a judicial declaration by this court that a contract and ceremony of marriage entered into between the parties was a nullity by reason of the prior hymeneal contract of the complainant with another woman, who was his living and lawful wife at the time of the later contract.

The bill alleges complainant’s marriage with one Mary Tole, in Richmond, Virginia, May 18th, 1862, and again with the defendant, Helen E. Barry, on July 14th, 1894, at which time Mary Tole was living. The bill was filed December 4th, 1894.

The answer puts complainant upon proof both of the prior marriage and the continued life of the alleged prior wife. In fact, the allegation of continued life is not found in the bill, and must be considered as added by way of amendment.

At the hearing, complainant attempted to sustain the burden thus cast upon him — -first, as to the marriage, by his own evidence and an exemplified copy of a writing on file in the hustings court of Richmond, Virginia; and second, as to the continued life of the first wife, by a witness who saw her shortly before the hearing.

Counsel for defendant attacked each of these pieces of evidence: as to the writing, that it is incompetent and insufficient for that purpose; as to the evidence of the complainant, that it is wholly unworthy of belief; and as to that of the witness to the continued life of the first wife, that the witness is not only unworthy of belief, but did not manifest sufficient acquaintance with the first wife to give reliable evidence.

Counsel for defendant took the further ground that, admitting the first marriage and the continued life of the first wife, yet the complainant procured the defendant to marry him by practicing upon her a fraud so gross as to close against him the door of a court of equity.

It is hardly necessary to cite authority for the position that a complainant who comes into court under the circumstances above stated and asks a decree of nullity, the result of which is to declare one whom he has sworn to love and cherish as a wife to be no more than a concubine, and her offspring, the fruit of the unlawful communion (born pending the suit), a bastard, must prove his case with the utmost strictness. The same rule applies in such a case as on an indictment for bigamy. The court in such cases is bound to act as the guardian of the helpless infant) and watch its rights and interests with jealous care.

I will consider, first, the sufficiency of the documentary proof of the first marriage.

The document offered for that purpose is a duly-exemplified copy of — to use the language of the clerk of the hustings court of the city of Richmond — “ a marriage license now on file in the clerk’s office of said court for the marriage of Arthur J. Rooney and Mary Tole, together with the minister’s return thereon.” The certificate of the clerk is dated June 19th, 1895. How long such document had been so on file in his court does not in any wise appear. The license appears to have been issued under the hand of “Ro. Howard, clerk” of the hustings court of Richmond, "Virginia, May 2d, 1862. On the same, paper is a statement of the names, ages and so forth of the husband and wife, also signed by the clerk. Annexed, and on the same paper, is the minister’s return of marriage, as follows:

“I certify, that on the 5th day of May, 1864, at Richmond City, I united in marriage the above-named and described parties, under authority of the annexed license.
“John Teeling.”

The person so signing does not state that he is a minister of the gospel or otherwise ■ authorized to perform the marriage ceremony.

No evidence was offered of the laws of Virginia regulating the issue of marriage licenses or the filing of the certificates thereof, nor as to the value or effect as evidence of such certificates when filedi I am not informed as. to what, if any, safeguards are thrown around such certificates by the laws of Virginia in order to secure their genuineness and prevent fraud and imposition. Nor does it áppear that a copy of such certificate would be evidence in any court in Virginia; and if a copy would not be evidénce there, then, of course, it would not be evidence here. Eor all that appears, the local laws may simply provide for a safe depository of such documents for the benefit of the parties, and that the originals only can be used as evidence, upon due proof of their genuineness and of the character of the person certifying to the ceremony. At best, under present circumstances, all that the exemplification can be held to prove is that there is on file in the office .of the clerk of the court in question a document in the words and figures certified to. The requisitions of the federal constitution do not' require us to go further than that. Our own act (P. L. of 1881 p. 210; Rev. Sup. p. 288 § 8), declares that

“ any public records of any foreign state * * * or any copy thereof which is admissible in such state to prove the facts therein contained shall be admitted in evidence in the-courts of this state” &c.

This language shows the necessity of the proof of the laws of the foreign state, and it seems to me there should also be some proof of the character and authority of the person performing the ceremony.

It must be remembered that a mere certificate of marriage, signed by a clergyman or magistrate, unattested by any oath, and not signed by the contracting parties, cannot, upon any recognized principle, and in the absence of any enabling statute, be held to be evidence of the marriage. Hubb. Suc. 247, 248, 257, 259, where the cases to that date are collected; 1 Bish. Mar., D. & S. §§ 993, 998, 1003, 1011 (1891); 1 Whart. Ev. §§ 120, 657. A different rule prevails as to entries on an official register kept in pursuance of law. 1 Whart. Ev. § 647 et seq.; 1 Bish. Mar., D. & S. § 993.

For these reasons I conclude that the paper in question has of itself, for present purposes, no probative force or value.

This brings us to the other questions, which may be conveniently' considered together, viz., Is the complainant worthy of sufficient credit as a witness to warrant finding the fact of the first marriage upon his unsupported testimony ? And second, Has he, by his own conduct, debarred himself from the right to relief in this court ?

The proofs present a most painful case. Complainant, sworn on his own behalf, says he was born April 1st, 1844; that he was married in 1862 (not 1864 as the certificate states) to Mary Tole, in Richmond, "Virginia that they lived together, off and on, until 1882 ;■ had one child, a son that they separated in 1882, and have lived separate since 1883, under articles of separation, what purports to be a copy of which was produced; that he is an undertaker and embalmer by profession and gives lessons therein; that he met defendant in Albany, New York, as a pupil in the art of embalming; that he showed her a copy of the articles of separation from his wife, and told her that his wife was living. He says that he was firmly of the belief that the effect of the deed of separation was to give him the right to marry again; that he took ño legal advice upon the subject, but simply talked the matter over with the defendant, and that both of them concluded that he was free to marry again during his first wife’s life.

From his evidence, taken as a whole, it is plain that he induced the defendant to believe that he occupied the position of a divorced man freed from the obligations of his first marriage and he has the audacity to come on the stand and swear that he actually so believed.

Now the evidence shows complainant to be a man of considerable education and intelligence and of wide experience. He pretends to have caused to be incorporated a national embalming college of which he, as Professor Arthur Rooney,” is demonstrator and treasurer. He is familiarly known as Professor Rooney, and as such lectures and gives lessons in the art of embalming. He made the defendant’s acquaintance in the month of April, 1894, as a pupil, and lured her from her home in Troy, New York, to New York city by a letter in which he proposed to start a monthly magazine called “ The Embalmer,” and employ her as an assistant editor of it.

The separation agreement itself gives no countenance whatever to the idea that it did or could free the parties from the bonds of matrimony. It was prepared, and its execution supervised, by counsel, and I infer from the evidence and the statements of counsel at the hearing that, one of those .counsel was acting under the retainer .of the complainant. Now it is quite impossible to believe that'either at the time the agreement.was prepared, executed and signed, or at some subsequent period, the complainant did not ask the advice of counsel, or learn incidentally from counsel that he was still under the bonds of matrimony with his first wife. And if it were possible to believe that he did, not ask the question of counsel, it is impossible to believe that, a man of his .experience and intelligence did not know, from reading the document, that it did not relieve him from the matrimonial bonds.

Upon these circumstances I look upon his evidence delivered in court on this subject as a cool, deliberate falsehood.

He. says that shortly after he was married to the defendant he began to suspect that he was not at liberty to marry, coming to such belief, not by seeking the advice of counsel, but by casual talk with his friends; and, after satisfying his lust in the enjoyment of the person of the defendant for two months, with the result of pregnancy on her part, he entertained tardy but sincerely conscientious scruples as to the connection &c., sent her home to her friends in Troy, and brought this suit.

Further: The complainant is directly and seriously contradicted by a most reliable witness in the cause, to wit, the very respectable clergyman, Mr. Throop, of Jersey City, who performed the marriage ceremony. It appears that complainant called at Mr. Throop’s house during the daytime on July 14th to make arrangements for the marriage in the evening, .and saw his housekeeper; that it came out in the course of conversation that he was a divorced man, and undoubtedly it was,so stated by him in order to ascertain in advance whether Mr. Throop would marry him as such, and that he was informed by the housekeeper that Mr. Throop would not marry a divorced man; and that he then let the housekeeper get the idea that he was a widower, that his first wife was dead ; but he denies in the most positive manner that he stated to Mr. Throop at the time of the ceremony that his first wife was dead.

Now, Mr. Throop swears that he began with the parties by asking the complainant the usual question, if it was his first marriage:

“ I asked him if he were a widower, and he said he was, and there was a little something about the way that he replied that I didn’t like, and so I made the qu'estion more definite; 1 said to him, ‘You mean by that that your wife is dead,’ and he replied, ‘Yes, my wife is dead.’
“Q. Did he say to you that his wife was dead?
“A. He said to me that his wife was dead.
“Q. Are you positive of that?
“A. I am positive of it.”

And the manner and bearing of the witness satisfy me that he could not be mistaken.

The result is that without taking into consideration the matters in which he is contradicted by the defendant, whose manner and bearing on the stand were such as to convince me that she was telling the truth, and without considering the manner of the complainant on the stand, which was not such as to inspire confidence in his reliability as a witness, I conclude that his evidence, standing alone, is insufficient to warrant this court in making a decree of the character here asked.

I might rest this part of the cause upon this result; but the other question, namely, whether complainant by his conduct has debarred himself of relief in this court, has been fully argued, and I think the parties are entitled to my views upon it, especially as the court of errors and appeals may differ with me upon the result of the proofs as to the former marriage.

This brings us to the evidence of the defendant.

At the time of the marriage she was twenty-eight years old, in humble circumstances, without parents, earning her living as an operative in a factory in the city of Troy, New York. In the month of April, 1894, she became one of a class to take lessons from Professor Rooney, at Albany, in the art of embalming, and thus made his acquaintance. He shortly afterwards called on her at her boarding-house in Troy two or three times, and sought her hand in marriage. He stated to her that he had been previously married, but was divorced from his wife and free to marry again; that he desired that the marriage should not be made public because it might affect his business. She declined him. Subsequently, in the month of June, 1894, she desired to make use of the knowledge of embalming she had acquired, as she supposed, from Professor Rooney, by engaging in the business in Troy, and for that purpose wrote to him at his New York address with the view to procuring the necessary outfit of implements and materials, with the result that the professor wrote her a letter dated July 6th,-1894, as follows

“ Public telephone and telegraph calls from the trade for embalming answered promptly at our expense.
“National Embalming College.
“ (Incorporated.)
“ P. W. Leveeing,
Pboe. Arthur Rooney, ■
Chemist and Secretary.
Demonstrator and Treas.
“Manufacturers of Standard Embalming Fluids and Specialties, Guaranteed for Arterial and Cavity Preservation.
“10 Bond street.
New York, July 6th, 1894.
Miss Helen F. Barry — Please allow me a few words by this means to clear up any misunderstanding which may be between us. In consideration of the disagreement we had when I left Troy last. I sent a letter to Mr. Balmer stating my views concerning what I would do if you desired to take the management of ‘ The Embalmer.’ I addressed my communication to him as my promise was out to him concerning the management of ‘The Embalmer.’ I gave him my idea why it would not be clear for him to manage it as he was to be our ag’t at Troy, and said I thought you could manage it. I have had no reply from him yet. ‘ The Embalmer ’ must come out this month or first part of next. It takes some time to get a correct Monthly Magazine ready for the public, particularly the first number of its revival. It is necessary for me to know what foundation to build on. I cannot commence the enterprise before some good plan is settled. Will you be kind enough to give me your views. I believe you can make it pay you handsomely in the near future. If you take advice from your Best Friend, which I believe I am and intend to continue till the end of time.
“ Truly Yours,
“Arthur Rooney.
“ P. S. — I have gotten out the tenants at No. 10 Bond St. I intend to concentrate all business and manufacturing at Jersey City, N. J., except an office in New York City which will do for ‘The Embalmer’ office also if desirable or I will establish ‘ The Embalmer ’ office at Albany or Troy if it will be better.
“'Tell me what you think about it.
“ Besp.,
“A. E.
“ Our charter requires principal office Jersey City. Business office in any other state or states.”

She came to Yew York on the day boat, on the 11th or 12th of July, for the purpose, as she says, of procuring the outfit, notifying the professor the boat she would take. He met her by boarding the boat at Yonkers, and took her to a room which he had provided for her in Yew York. He then solicited her to marry him, and she finally consented to do so. Throughout, he stated to her that he was divorced from his former wife and entirely free to marry. He swears that he showed her a copy of the agreement of separation between him and his wife, and explained that he derived his right to marry from it, and denies that he said he was divorced. This she denies in the most positive manner, and says that she never saw the separation agreement until it was shown to her on the witness-stand. In this I fully believe her. But I stop to say that it makes little difference whether she saw it or not, since it abundantly appears from complainant’s own evidence that he stated to her and assured her that he was free to marry — she says by divorce; he says, as the result of these articles of separation • and if his version of the affair in that respect is the true one, he still remains a fraud-doer, for he is, as I have already observed, a man of intelligence and experience, and could not for a moment have believed that such was the effect of the agreement, while she was an ignorant, inexperienced, simple person who might well believe his assertion in that regard. When pressed, he hardly ventured to swear that he actually handed her the document in question, but says that he placed his trunk, which was unlocked, in the room to which he took her in Yew York, and that it contained all his papers, and that she looked them all through. Her version of the affair is that there was no such trunk in her room, and that she did not see the separation agreement, but that he showed her a mass of papers, among others a certificate of incorporation of the embalming college, and certificates of stock issued thereunder, and a lot of printed matter in connection therewith and with the embalming college and the proposed magazine; and that those are the papers which he had talked to her about previously in Troy, and which were in keeping with the proposition contained in his letter of July 6th. And these account for an expression in a letter written by her on July 17th, three days after her marriage, to a female friend in Albany, which the complainant succeeded in procuring and putting in evidence, in which she uses this language: “ I have examined all papers and find everything as the professor represented.” That letter announced their marriage, aud authorized her friend to say that she was married, and she would rather that she would tell it; that the professor had no objections; and states that she had written to two other friends by the same mail.

The parties lived together for a little less than a fortnight after the marriage, when the defendant made a short visit to her friends in Troy, and then they resumed cohabitation some time early in August, and lived together till about the middle of September, when they separated. The complainant says the cause of separation was that the defendant made an unfounded criminal charge against him. Her account of it is that when he discovered that, she was with child he attempted to produce an abortion upon her, of which act she complained to a police magistrate, and that soon afterward, the cohabitation still continuing, he left her in the night while asleep, opened the gas burners in her bedroom, closed the door on her and was about leaving the premises when she awoke in time to save her life.

An attempt is made to impeach the evidence of the defendant by a Mrs. M., who claimed to be in the employ of the complainant in his business of an embalmer. It is not necessary to detail this evidence, but it is sufficient to say that the attempt to impeach the defendant failed and reacted upon the witness. .

The question is whether the fraudulent conduct of the complainant debars him from suit in this court.

If this were an ordinary suit in equity to set aside or annul an ordinary contract, there could, of course, be but one answer to the question. The maxim, he who comes into equity must come with clean hands, would apply, since the fraud here practiced by complainant was connected with the procurement of the very contract that he now seeks to have declared null. 1 Pom. Eq. Jr. §§ 397, 401.

ISTow, it is to be observed at the start that this court is not asked here to decree a divorce by dissolving an existing valid contract, thereby altering the relations of the parties, but simply to judicially declare, and no more, just what their relations are and have at all times been. For it is well settled that a ceremony of marriage between parties, one of whom has a lawful husband or wife living from whom he or she has not been lawfully divorced, is absolutely void ab initio, and has no binding effect for any purpose whatever, and may be so treated at all times, in all places, and for all purposes, and that a decree of a court declaring it null is not necessary for any purpose. This is the law of the land, quite independent of the statutory declarations upon that subject. The value of the decree of nullity is that it works an estoppel, and prevents the question of fact out of which the nullity arises from being again brought in question. Such a decree cannot be properly called a decree of “ divorce,” since that word implies a dissolution of, and does by its terms dissolve, a prior valid existing contract.

The use in our act of the word “divorce,” as applied to a decree of nullity in such a case, is plainly a misnomer.

Again, it is clear that the present suit is one of an equitable nature of which this court has jurisdiction quite independent of the statute. McClurg v. Terry, 6 C. E. Gr. 225, and cases cited ; Anonymous, 9 C. E. Gr. 19 ; Carris v. Carris, 9 C. E. Gr. 516, and cases cited; 2 Bish. Mar., D. & S. §§ 801, 808.

In the well-considered case of Tefft v. Tefft, 35 Ind. 45, a suit was brought by a husband for a divorce from his wife on the ground that she had a husband living at the date of the marriage, and it was held — there being at that time no statute on the subject in Indiana — that he was entitled to a decree of nullity under the general power of the court, provided, and not otherwise, that it affirmatively appeared that he did not know of the defendant’s incapacity when he married her. Accordingly, a count in the bill which omitted to allege that the plaintiff did not know that the defendant had a husband living at the marriage in question was held bad; and one alleging such ignorance was held good on demurrer.

In Fuller v. Fuller, 33 Kan. 582, it was held that where a man innocently marries a woman who has a husband living, he may afterwards maintain an action against her in equity to have a supposed and colorable marriage declared a nullity. The opinion states that while the court has power to declare that the marriage was a nullity ab initio, by virtue of its equity powers, yet the legislature had, from prudential reasons (a remark that applies to our legislature) given a remedy to an innocent, party to such a marriage by an ordinary suit for divorce. This indicates that the Kansas legislation is similar to ours, except that it expressly limits the remedy in cases of prior marriage to innocent parties. And such is the provision of the Pennsylvania statute, on the same subject. Act of March 13th, 1815, 1 Bright. Purd.

There is authority for the proposition that suits for divorce in this court, based upon purely statutory grounds, are of an equitable nature and subject to the rules and maxims of courts of equity rather than those of the English ecclesiastical.courts. It is evident that Chancellor Zabriskie was of that opinion from what he said in Derby v. Derby, 6 C. E. Gr. 39, and the language of Vice-Chancellor Van Fleet, in Woodward v. Woodward, 14 Stew. Eq. 224, is in the same direction. The very fact that the legislature gave the power in such cases to this court rather than to the courts of law, encourages that view.

The equitable nature of the suit being established, and it being brought in a court of equity, it seems to me that it should be dealt with upon the same equitable principles as other suits founded upon ordinary equities. Mr. Bishop states the general rule to be that a party who by fraud has induced another to enter into the contract of marriage cannot be permitted to maintain a suit to avoid it; and this rule applies to all merely voidable marriages. But he makes a distinction between suits to annul voidable marriages and suits to procure a declaration of nullity ab initio by reason of precontract, and as to the latter assei’ts the rule to be that fraud on the part of the plaintiff is no defence. 1 Bish. Mar., D. & S. § 722; 1 Bish. Mar. & D. (4th ed.) § 300. I have examined most of the cases cited by him in favor of this proposition. The American authorities do not support it. Tefft v. Tefft and Fuller v. Fuller, supra, are against it. In Summerlin v. Livingston, 15 La. Ann. 519, the action was by the representatives of the deceased wife against her husband to obtain her share of the joint property under the community laws of Louisiana. The husband defended on the ground that the marriage was a nullity by reason of the prior marriage of the wife. In delivering judgment, the court said :

If it is true that the defendant was aware at the time of his marriage of the incapacity of his wife to marry, his course in marrying her was highly immoral and reprehensible. The record does not give information on this subject. But, at all events, although the party could not avail himself of his own turpitude as a basis of demand, yet he is not estopped when he sets it up as a defence.”

I think the weight and tendency of American authority are against affording affirmative relief to a person situate as the complainant is here.

The English authorities are the other way. The leader is Miles v. Chilton, 1 Rob. Ecc. 684. That was a suit for nullity by husband against his wife, based upon her prior marriage to a husband still living. The question arose upon a motion before Doctor Lushington, on behalf of the wife, to amend her pleading by adding an allegation that the libellant had induced her to marry him by false and fraudulent representations, viz., that a suit for diyorce instituted against her by her first real and lawful husband had been prosecuted to a decree divorcing the parties from the bonds of matrimony, by which she was freed therefrom and at liberty to marry again. This was impossible, as I suppose, at that time (1847), as only an act of parliament could then produce thát result. Doctor Lushington, however, refused to permit the amendment, upon the broad ground that the husband’s fraud did not debar him from relief.

This decision' was treated as authority by Mr. Justice Butt, in 1888, sitting in the probate divorce division of the English court, in Andrews v. Ross, 14 Pro. Piv. 15. That was a suit by a wife against a husband for a declaration of nullity by reason of her being the sister of his first wife, who had died prior to the second marriage. The petitioner knew of the first marriage with her sister. The learned judge said: “In that state pf things, and in acoordanoe with all the principles of law administered in other courts, she would not be allowed to sue for a declaration of nullity of marriage.” But he held that the settled law of the ecclesiastical courts of England was as it had been laid down in Miles v. Chilton, and that the statute of 1857, erecting the new court of probate and divorce, bound him to follow the law of its predecessor. It is worthy of observation here that in that case there was no fraud practiced by the wife upon the husband, but it was merely a case of mutual knowledge that the act that they were committing was unlawful. It is also proper here to remark that the English chancellors declined to exercise jurisdiction in such causes, not because chancery had no jurisdiction of them, but because the ecclesiastical courts had, and exercised, full jurisdiction. Carris v. Carris, supra.

The question now presented is, Should this court, in a case like the present, follow the general rules governing courts of equity, or those peculiar rules which obtain in 'the English ecclesiastical courts as displayed in Miles v. Chilton? It seems to me that the answer would be clearly in favor of the application of general equity rules were it not for the language of our statute. The second section declares that “ divorce from the bonds of matrimony shall be decreed where either of the parties had another wife or husband living ” &c. I have already remarked upon the improper use of the word “ divorce ” in this section, and the question is, is the word “shall” in that sentence peremptory and mandatory, or merely directory, leaving the court while administering justice in such causes still a court of equity, requiring its suitors to come into it with clean hands. Upon the best consideration I can give the question, I conclude that the legislature did not intend, fro hao vice, to essentially change the intrinsic character of this court, nor to compel it to violate its fundamental principles in order to reach a result which shocks the conscience of all persons of right feeling.

Admitting, then, that I am mistaken in my conclusion that there is in this case no reliable evidence of the former marriage upon which a decree can be founded, I still feel bound to advise against complainant’s prayer for relief.

This brings me to the defendant’s cross-bill and prayer for affirmative .relief under the twentieth section of the Divorce act.

There can be no doubt under the evidence that the complainant did abandon the defendant and refuse to provide for her in such manner and to such extent as to bring the case within the provisions of that section. The commencement and prosecution of this suit, accompanied by a stoppage of all provision for her support, until compelled thereto by the court pending suit, was, of itself, such abandonment.

The only question is whether the reversal of the position of the parties, by which the defendant becomes actor and the complainant defendant, will, under the peculiar circumstances of this case, bar defendant’s claim.

The only evidence, other ’than that already noticed, which bears upon this issue, is that of Walter Rowley, the complainant’s nephew, who swears that when he was a boy, from • six to eight years old, he lived in Richmond, Virginia, and recollects visiting complainant and his alleged wife, and that they were then living together as husband and wife in Richmond. ’ I did not deem this evidence of any importance upon the first issue, because I concluded that to sustain that issue complainant must prove an actual valid marriage; that mere cohabitation as man and wife was insufficient. Moreover, the evidence of the witness was meagre and unsatisfactory, and his manner and surroundings were not assuring.

The ceremony of the marriage between the parties to this record is admitted and clearly proven, and every reasonable presumption should be made in favor of its validity and against its nullity. The burden of proving its nullity is properly cast upon the complainant, who asserts his own former marriage. Patterson v. Gaines, 6 How. 550. "Whether it be set up as a cause of action, or as a defence, in either case it seems to me it should be clearly proven. I think that the evidence of cohabitation by Rowley is insufficient to cover the defects pointed out in the proofs adduced by complainant to make out his case on his bill. It was so easy for the complainant to make complete and satisfactory proof of the vital fact in question that his failure so to do excites suspicion.

Eor these reasons, and laying out of view any notion of complainant being estopped by his conduct from denying, pro hao vice, the validity of his marriage with the defendant, and in full view of the rule laid down by Chancellor Vroom in Zule v. Zule, Sax. 96, I conclude that defendant is entitled to relief on her cross-bill.

I have dealt with this part of the case as if complainant had specially set up in his replication, by way of answer to the defendant’s cross-bill, the former marriage as a defence. This he failed to do, and it is doubtful if he is entitled to avail himself of that defence to the cross-bill without specially pleading it.And the tendency of the authorities is decidedly against relieving a party situate as is the complainant from a slip of that kind. 2 Bish. Mar. & D. § 294; 2 Bish. Mar., D. & S. § 799; Nokes v. Milward, 2 Add. Ecc. 386.

I will advise a decree that the complainant’s bill be dismissed, and a decree for the defendant upon her cross-bill for alimony, and will hear counsel (and further evidence if necessary) as to the amount to be allowed. The defendant is entitled to costs.


text:
    Andrew J. King v. Mary Jane Wilson, Antonio Capella et al.
    1. Foreign attachment duly issued and levied upon the interest of one of two tenants in common in lands, pending proceedings under the attachment, and before sale thereunder, the tenants in common made a lease for years, and lessee entered. Subsequently, the interest of one of the tenants in common was sold by virtue of the attachment, purchased by complainant, and conveyance duly made to him. — Held, that the complainant was entited to hold his share allotted to him on partition free and clear of the lease.
    2. The decree in partition declared that each of the parties was entitled “ to have, hold, use, occupy, possess and enjoy in severalty” the share allotted to him. — Held, that in execution of that decree an injunction should issue, upon proper case made, to prevent any of the parties to the suit interfering with or molesting any other party in the possession of his share.
    Upon petition for injunction.
    The facts of this case are the following: Prior to the 21st day of November, 1886, the defendants Mary Jane Wilson and her brother, Henry R. Wilson, were the owners, as tenants in common, of a tract of land in the county of Atlantic, containing about three hundred and twenty acres, the said Mary Jane Wilson being the owner of an equal undivided two-thirds part, and the said Henry R. Wilson being the owner of an equal undivided one-third part thereof. On that day a writ of attachment was issued out of the supreme court, at the suit of Ralph H. Conover, against Henry R. Wilson and two others, by virtue of which the sheriff attached the interest of Wilson in said lands, and such proceedings were had on that attachment that, an auditor was appointed, who made his report, and on the 30th of July, 1890, judgment final was entered in favor of the plaintiff in attachment against the defendants for $3,745.76, besides costs. By virtue of an order of the court the auditor appointed in that suit advertised the interest of Wilson for sale, and on the 28th of November, 1890, the auditor sold the one-third interest of Wilson to the complainant herein, and in pursuance thereof made and executed his deed to the complainant, dated the 29th of May, 1891, acknowledged and delivered on that day, and duly recorded on the 31st of July, 1891. Between the time of the execution of the writ of attachment and the execution and delivery of the auditor’s deed, to wit, on the 1st of May, 1890, Mary Jane Wilson and her brother, Henry R. Wilson, by written lease, demised the premises to one Eao for the term of ten years, at a yearly rent of $120, and Eao, on the 2d of February, 1891, assigned this lease to the defendant Capella, who entered into possession under it and occupied the premises, part of which was woodland and part cultivated lands. He was in such possession at the time of the auditor’s sale, and was present thereat, and had notice that it was made by virtue of an attachment against Henry R. Wilson’s one-third interest in the premises, levied anterior to the date of his lease; and it was explained to him that the effect of the sale would be to give the purchaser a title paramount to his lease, as to one-third.
    Between that date and the 31st of October, 1894, the date of the filing of the bill herein, complainant and Capella were in frequent communication, ánd Capella paid two-thirds of his rent to the agent of Mary Jane Wilson, and paid the other one-third to the complainant, but the complainant refused to recognize the lease, and so stated to Capella, and all his receipts were given simply for use and occupation of the premises.
    On October 31st, 1894, complainant filed his bill of partition herein, setting out his title under the attachment, and then stating that the defendant Capella was in possession of the whole farm, and claimed to be entitled to the exclusive possession and enjoyment of it, by virtue of a lease from Mary Jane and Henry R. Wilson, for a term of ten years, not yet expired; alleging that the lease was executed subsequent to the service and return of the writ of attachment against Henry R. Wilson, and that the complainant became seized of the one third undivided interest of Wilson in the premises free and clear and unaffected by the subsequent léase executed by Wilson, and that the lease was void as against the complainant’s title.

      Capella was duly made a defendant, acknowledged service of process of subpoena, and was present in the court-room when the decree was made referring the matter to a master to ascertain and report the condition of the title, and was invited to appear before’the master for that purpose, and, in point of fact, handed his lease to the solicitor of complainant to submit to the master, who reported that the complainant was seized of an undivided one-third part of the premises, and the defendant Mary Jane Wilson was seized of an undivided two-thirds part, subject to the leasehold interest of Capella. That report was confirmed, and a commission was issued to make a partition. The commissioners met, went upon the ground, and made an actual partition, Capella being present at that meeting. The report of the commissioners was confirmed by a decree which described by metes and bounds the share set off to each of the parties, and decreed that the complainant “ do have, hold, use, occupy, possess and enjoy in severalty” the share so allotted to him; and that the defendant Mary Jane Wilson have, hold, use, occupy, possess'and enjoy in severalty the share allotted to her, subject to the leasehold interest of Antonio Capella therein.
    Between the date of the auditor’s sale and the partition proceedings Capella had cut off the timber on over thirty acres of wopdland, cleared out the stumps and cultivated the land, raised vegetables and planted blackberry vines. This was done with the knowledge of the complainant, but against his protest. He swears, and I cannot but believe him, that he notified Capella that he was doing this clearing at his own risk, and that he would be liable to have it taken away from him on a partition. In point of fact, the share set off to the complainant comprised about thirty-two acres of cultivated land which had been reclaimed by Capella in the manner just stated.
    After the confirmation of the partition the complainant entered into possession of his lands, upon which there was no dwelling, and proceeded to build a fence on the partition line across the cultivated lands just mentioned, enclosing on his side of the boundary about thirty-two acres of such land. Mr. Capella resisted this work with force, and drove him and his workmen from the ground. Thereupon the complainant filed his petition, stating his rights in the premises, and praying an injunction against Capella’s further interference with him in the enjoyment of his premises and from going into or upon the lands of the complainant, or in any manner molesting him in the enjoyment of the possession of the premises.
    Capella answered this petition, setting up his lease, and that the complainant had recognized him as tenant by accepting rent under the lease, and denying that he had any notice of complainant’s superior title, and that complainant had encouraged the clearing and planting the land in question.
    Witnesses were examined and proofs taken in open court upon the petition and answer.

      Mr. Charles 8. King, for the complainant.

      Mr. Charles L. Cole, for the defendant.
   Pitney, V. C.

The defendant was permitted on the hearing of the petition to prove any facts which tended to show that he had any defence to the complainant’s equity against him set out in his bill, or any ground to vary the decree which had been made. In this he failed.

By the fifty-third section of the Attachment act (Rev. 1877 p. 51) the complainant’s title relates back to the date of the issuing of the attachment, and that date in this case was, confessedly, anterior to the date of the lease. This was conceded by defendant’s counsel. He put himself upon the ground that his client was an ignorant Italian, who imperfectly understood the English language; that he was not aware of the effect of the sale under the attachment, and that the complainant had ratified the lease by accepting rent under it, and had encouraged the defendant in clearing and planting the land.

On these issues of fact the defendant fails. It was abundantly proved that it was thoroughly explained to him at the time of the auditor’s sale that the title under it would be paramount to his lease, and that he was advised to bid, and did bid nearly to the amount at which the property was struck off to the complainant. Then the complainant thoroughly explained to him that he would not in any manner recoguize the lease, and carefully protested on the occasion of each payment by giving him a receipt for use and occupation only.

Complainant waited three or four years before filing his bill for partition in the hope that negotiations for a sale of his interest to the defendant Capella would result in such sale.

The defendant further set up that complainant acquiesced in the improvements made by Capella after the sale. This is also thoroughly denied by the complainant, and he swears, and I believe him, that he protested against those improvements, and warned Capella that he was liable to lose them. Defendant’s counsel again set up that his client did not understand the partition proceedings. Here, again, the facts are against him. They were fully explained to him by the complainant, and his conduct pending the proceedings is consistent with his fully understanding them.

I can find nothing in the case which would warrant the court in opening the decree and allowing the defendant to come in and defend.

The next question is as to the remedy by injunction.

The law on the subject of the power of the court to execute a decree of this kind was thoroughly examined and established by Chancellor Green in the case of Schenck v. Conover, 2 Beas. 220, and the practice established by that case of a writ of assistance issued to the sheriff to put in possession the purchaser at sheriff’s sale of mortgaged premises. The reason which furnishes the basis of the authorities cited by Chancellor Green in Schenck v. Conover, is not confined to the cases of purchasers at a sale under foreclosure, but includes all cases in this court where the right to the possession of land is involved and directly dealt with. In fact, it applies with more force to such cases than to one where a stranger purchases land at a sale by virtue of a decree of this court; because, in the latter case, the decree does not, in direct terms, declare that any person is entitled to the possession of the land, but only directs it to be sold and that a good title shall pass thereby. It was, at one time, seriously questioned whether or not it could be said to be the duty of the court in executing its decree of sale to put the purchaser in possession. But in a case of partition, where the possession is distinctly decreed to each of the parties, the case is quite different.

I do not find among the authorities any case of partition where the principle has been applied. But it appears to have been assumed by Lord Hardwicke, in Roberdeau v. Rous, 1 Atk. 543, that it did apply in partition. In Huguenin v. Baseley, 14 Ves. 273, the court set aside a conveyance of land, at the instance of the grantor, on the ground of fraud; ¿nd, subsequently, in the same case (15 Ves. 180) enforced the decree by injunction for possession. And the same remedy was applied in Devaucene v. Devaucene, 1 Edw. Ch. 272.

Our .statute (Rev. 1877 p. 115 § 61¿) declares that after a decree

“it shall be lawful for the court * * * to cause, by injunction, the possession of the estate * * * whereof the possession * * * is decreed, to be delivered to the complainant or otherwise, according to such decree and as the nature of the case may require.”

This language covers the case in hand.

It is not necessary here to resort to the writ of assistance, since the' land consists of open fields and woods, and is incapable of more than formal delivery and possession.

An injunction to prevent defendant from interfering with complainant’s possession is all that is necessary, in the first instance, at least. See Stribley v. Hawkie, 3 Atk. 275. Moreover, an injunction here is the more efficient remedy, since the weight-of the evidence is that'the damage which will result from defendant’s interference will be serious and not easily computed, and the defendant is of doubtful pecuniary responsibility.

I will advise an order that the defendant be restrained from entering upoii any part of the premises set- off to the complainant, or molesting him in any way in the possession and' enjoyment thereof.