author: Howell, Y. C.

text:
    Carrie W. Mabee v. John Mabee et al.
    [Decided December 3d, 1915.]
    1. In a suit by a wife against her husband to reach, in payment of his debt to her, his father’s legacy to him, the court, having custody of the funds through payment to it, pursuant to order, by the father’s executor, could distribute the legacy to the wife on petition filed in the suit, although a creditor of the husband, who attached the husband’s interest in the estate of his father in the hands of the latter’s executor after filing of the bill, issue of subpoena, and appearance by the husband, was not a party to the suit, since a court having in custody money for distribution, if satisfied that all the necessary parties are before it, may make distribution, whether the parties are brought in by the bill and subpoena or come in responding to the petition for distribution, as did the attaching creditor.
    2. Where a wife sued her husband and others to reach, in payment of his debt to her, his father’s legacy to him, and, after filing of the bill, subpoena to the husband, and his appearance, the husband’s creditor attached in the hands of the father’s executor the husband’s interest in the estate, such attaching creditor was subject to the Us pendens created by the wife’s bill, since a suit in chancery, prosecuted in good faith and followed by decree, is constructive notice, to every person acquiring from a defendant pendente Ute an interest in the subject-matter of the litigation, of complainant’s rights as charged by the bill and established by the decree, while the attaching creditor derived all his rights from the husband, standing in his shoes.
    3. Courts of common law recognize the doctrine of Us pendens.

    4. Where a wife, in her suit to reach, in payment of her husband’s debt to her, his father’s legacy to him, not only created a Us pendens by her filing of the bill, &e., but, before levy of an attachment of the husband’s interest in the father’s estate in the hands of the' latter’s executor by the husband’s creditor, obtained from the court an injunction order impounding the whole fund in the custody of the executor, the fund remaining impounded pending suit until the final decree, which directed the executor to pay the money into court, which he did,’ an equitable lien in favor of the wife was created for the sum found due her by the decree.
    5. The English rule that the doctrine of Us pénd'ens is inapplicable to personal property other than chattel interests in land is probably not the rule in the United States.

      On petition to distribute money in court.

      Mr. Allen R. Shwy, for the petitioner.

      Mr. Thomas M. Kays, for Coursen, attaching creditor.

      Mr. TIenry 0. Hunt, for the estate of John Mabee.
   Howell, Y. C.

On December 4th, 1914, Carrie W. Mabee, the complainant, brought suit in this court against John Mabee, her husband, and others, to recover a sum of money which she claimed was owing to her by him. His father, Edward Mabee, had recently died and left him a sum of money, as a legacy, and the object of the bill was to reach that fund. The executor of Edward Mabee’s will is a party to the suit.'

On the filing of the bill an order was made requiring the defendant to show cause why an injunction should not be issued, according to the prayer of the bill, with an ad interim restraint, preventing the executor of the deceased parent from paying over the legacy due to the husband under the last will of his father, and also prohibiting the defendant John Mabee from selling, assigning, mortgaging or transferring his legacy under his father’s will. On the return day of this order there was a stipulation signed by the solicitors of all the parties whereby it was agreed that the restraining order theretofore issued in the cause should remain in full force until the final determination of the suit. The defendant John Mabee, and Theodore E. Dennis, executor of Edward Mabee’s will, answered. After the answers were filed John Mabee -died, and an order was made reviving the suit against Fred L. Mabee, administrator of his estate. The cause proceeded to a final hearing, was decided in favor of the complainant, and on June 1st, .1915, a final decree was entered adjudging that the complainant recover from the defendant Fred L. Mabee, administrator of John Mabee, deceased, the sum of $5,735, with costs, to be taxed, and that an execution issue according to the practice of the court and that Theodore E. Dennis, executor of the Vrill of Edward Mabee, upon passing his accounts through the orphans court, and ascertaining the amount of money in his hands, pay that sum into this court to abide the further order of the court. In pursuance of that decree Mr. Dennis paid into this court the sum of $3,665.69.

On December 7th, 1914, subpoena was issued on the original bill, service of which was acknowledged by Theodore E. Dennis, as executor of the will of Edward Mabee, deceased, as his solicitor pro se, and as to John Mabee, the sheriff returned that he was not able to find him in his county, and that he was credibly informed and verily believed that the said John Mabee was out of this state, and that he resided in the city of Los Angeles, in the State of California. On December 17th, 1914, another subpoena was issued on the said bill, returnable on December 28th, 1914, service of which was acknowledged on December 17th, 1914, by Henry C. Hunt, as solicitor for John Mabee. The answer of John Mabee was filed on February 5th, 1915, on which day the clerk entered an appearance by John Mabee by Henry C. Hunt, his solicitor. On January 13th, 1915, after the filing of the bill, and the issue of subpcena and the appearance by the defendant John Mabee, a writ of attachment was issued out of the Sussex county circuit court at the suit of Frank E. Coursen against John Mabee for $709.80, by virtue of which the sheriff of the county of Sussex, on January 15th, 1915, .attached in the hands of the said Theodore E. Dennis, executor, &c., all the right and interest of John Mabee in the estate of the said Edward Mabee, deceased, given and bequeathed to him in and by the last will and testament of the said Edward Mabee, and caused the estate to be appraised and the writ and return thereof to be filed in the office of the clerk of the county of Sussex; but no further proceedings were ever taken thereon by the attaching creditor. The complainant now claims the whole of the fund in court, and Coursen, the attaching creditor, claims a sufficient portion of it to satisfy his attachment.

The question is raised in limine whether the court can distribute the fund in question on a petition filed in the original suit, in view qí the fact that the attaching creditor, Coursen, is not a party, and it is argued that on this account he has not had his day in court, and that any proceedings taken on the pending petition would be nugatory as to him. This contention, however, cannot prevail. The situation is this: This court has in its custody and possession a sum of money for distribution. If it is satisfied that all the necessary parties are before it, it may make such distribution among those whom it finds to be entitled to the fund, or portions of it, and I cohceive that it makes no difference whether these parties are brought in by the bill and subpoena or whether they come in in response to a petition.

The principal contention, however, is that which relates to the priorities of these two claims, the complainant claiming by virtue of her bill, subpoena and appearance thereto as constituting a lis pendens, subject to which the attaching creditor must take if he has obtained any right whatever.

I pass by the point that no judgment has yet been entered in the attachment suit, and that therefore the rights of the parties have not been fixed at common law, and I likewise omit any discussion of the point whether the fund was liable to garnishment as a fund in custodia legis, and take up' the question of priorities.

The decision of the question at issue depends upon the principles which govern the pendency of suits. If the complainant, by virtue of what took place at and immediately after the filing of her bill created a lis pendens, it must be quite clear that the attaching creditor took subject thereto. The rule is laid down 'by Mr. Justice Depue in Haughwout v. Murphy, 22 N. J. Eq. 531, as follows: “A suit in chancery, duly prosecuted in good faith, and followed b}r a decree, is constructive notice to every person^who acquires from a defendant, pendente lite, an interest in the subject-matter of the litigation, of the legal and equitable rights of the complainant as charged in the bill and established by the decree. This effect of a successful litigation in subordinating the title "of a purchaser pending a litigation, to the rights of the complainant as established in the suit, is not "derived from legislation. It is the doctrine of courts of equity, of ancient origin, and rests not upon the principles of the court with regard to notice, but on the ground that it is necessary to ■ the administration" o'f justice 'that the decision of the court in a suit should be binding, not only on the litigant parties, but also upon' those who acquire title from them during the pendency of the suit. Such a purchaser need not be made a party, and will be bound by the decree which shall be made.”

The rule has been followed in this court in Gray v. Case, 51 N. J. Eq. 426; Turner v. Houpt, 53 N. J. Eq. (at p. 553), and re-affirmed by the court of errors and appeals in the case of Wood v. Price, 79 N. J. Eq. 620. It is also the doctriné of the courts of common law (Allen v. Morris, 34 N. J. Law 159); and it is a rule of almost universal acceptance. Murray v. Ballou, 1 Johns. Ch. 566; Murray v. Lylburn, 2 Johns. Ch. 441.

It appears to have been promulgated by Sir Francis Bacon, in 1618, while he was lord keeper of the great seal. His order is as follows: “12. No decree bindeth any that cometh in Iona fide, by conveyance from the defendant before the bill exhibited, and is made no party, neither by bill, nor order, but where he comes in pendente lite, and, while the suit is in full prosecution, and without any color of allowance or privity of the court, there regularly the decree bindeth; but, if there were any intermission of suit, or the court made acquainted with the conveyance, the court is to give order upon the special matter according to justice.”

The attaching creditor is not in the position of a purchaser for value without notice. He derives all his rights, if any he has obtained, through John Mabee, and he stands exactly in John Mabee’s shoes. His position is the same as if John Mabee had by some voluntary act of his own attempted to create a lien on this fund in favor of the attaching creditor, or had made, or attempted to make, an assignment of the fund, or some portion thereof. And if he had attempted any such step as that he.could not in the face of the authorities above cited drive the complainant from her position or obtain a lien superior to hers.

It must be remembered that the complainant not only created a lis pendens by her initial proceeding, but before the levy of the attachment obtained from the court an injunction order 'whose effect was to impound the whole fund in the hands and custody of Mr. Dennis, the administrator of Edward Mabee’s estate, and that it’remained so impounded pending the suit and down to the final decree. By the final decree Mr. Dennis was directed to pay the money into court, which he did, where it now is, so that months before the attaching creditor took his proceedings, the fund in question was either under the control or in the actual possession of the court. The effect of this action is to create an equitable lien in favor of the complainant, to the extent of the sum found due by the decree in her favor, and, inasmuch as the decree is for a larger sum than the amount of the fund, her lien must prevail over that attempted to be- obtained by the attaching creditor, to the full extent of the fund.

Ut may be said that the doctrine of Us pendens does not apply to the case in hand, fdr the reason that the proceeding is brought solely for the recovery of a money judgment and does not directly affect tire title to or possession of property.

Mr. Justice Lindley said in Wigram v. Buckley, C. A. (1894), 3 Ch. 494: “Upon principle and authority, I am of opinion that the doctrine in question is inapplicable to personal property, other than chattel interests in land. The inconvenience of extending the -rule to ordinary personal property is so extremely serious that it would, in my opinion, be very wrong to so extend it now for the first time, even if such extension could be justified by reasoning from well-established general propositions which might serve as premises for, arriving at such a conclusion.”

This, however strongly held in England, is probably not the rule in the United States. -Neither can the remark apply to a case like the present, where there was an actual seizure of the property and a holding of it to answer the demands of the complainant^,

I conclude, therefore, that the-fund must be paid to the complainant.


source: Caselaw Access Project

license: Public Domain

text:
    The Oscar Barnett Foundry Company v. The Iron Works Company and Paul L. Crowe.
    [Decided December 15th, 1915.]
    1. Ordinarily, relief from a decree of injunction, on the ground of an adjudication that the contract, the violation of which was enjoined, had been previously rescinded, must be sought by a bill of review.
    2. Complainant, the exclusive licensee of a patented device, obtained an injunction against the licensor’s violation of the license contract, which on the licensor’s appeal was affirmed, and pending such proceeding the licensor, who did not plead the rescission in the injunction suit, brought an independent suit in the United States courts and obtained a decree holding that the contract had been previously rescinded, and thereupon moved to vacate the injunction.—Held, that the licensor was entitled to relief from the injunction, not by its vacation, but by an order permanently staying all proceedings on the decree.
    3. In such case the order staying proceedings on the injunction decree would be conditioned upon the licensor’s payment of all the complainant’s costs and counsel fees in the chancery suit, in the court of errors and appeals, and in the federal jurisdiction.
    On motion to vacate injunction.

      Mr. Charles Young and Mr. William, P. Preble (of the New York bar), for the motion.

      Mr. Egbert J. Tamblyn/ contra.

   Howell, Y. C.

On January 29th, 1908, Pañi L. Crowe, one of the defendants, entered into a contract with the Oscar Barnett Foundry Comr pany, the complainant, by which Crowe licensed the complainant solely to manufacture a device called mechanical chain stokers in accordance with letters patent issued to Crowe therefor. Afterwards the defendants, Crowe and the Iron Works Company (a corporation which has since been dissolved) violated the terms of the contract by manufacturing the stokers without the permission of the complainant.' The complainant thereupon brought suit in this court against the Iron Works Company and Crowe, and such proceedings were had therein, that on November 25th, 1912, a final decree was entered by which it was ordered that an injunction issue against the Iron Works Company and Crowe restraining them from manufacturing .and selling any mechanical chain stokers embodying the features set forth and referred to in the above-mentioned agreement of January 29th, 1908, in violation of the exclusive rights granted to the complainant by that agreement, together with other matters pertaining thereto. The defendants appealed to the court of errors and appeals; the decree of this court was affirmed on May 9th, 1913, and on June 26tli, of the same year, the injunction was issued. The decree also provided that the defendants, Crowe and the Iron Works Company, should pay the costs of tire suit, together with a counsel fee of $100 to be included therein, and that execution issue therefor according to the practice of this court. These costs have not been . paid. • In the meantime, the defendant Crowe, conceiving that the contract upon which he had been sued had in fact been rescinded, instead of pleading rescission in the pending chancery suit, brought an original and independent suit in the United States circuit court for the third circuit and district of New Jersey on August 9th, 1913, alleging that the contract had been rescinded by act of the parties; and seeking a judicial declaration to that effect. Such proceedings were had therein that a final decree was entered on June 10th, 1914, which declared that the said contract was rescinded on May 21st, 1914. The Oscar Barnett Foundry Company took an appeal from the said decree to the United States circuit court of appeals for the third circuit, and on January 18th, 1915, that court affirmed the decree entered below, but holding that the contract between the Oscar Barnett Foundry Company and Crowe was rescinded on November 2d, 1912, and not May 21st, 1914, as was held by the court below. Thereupon a final decree was entered on the mandate of the appellate court on April 9th, 1915, by which it was finally adjudicated that the contract in question was rescinded by the acts of the parties thereto on November 2d, 1912.

It thus appears that- there are now two decrees dealing with the said contract, one in this court adjudging that the contract was in full force, and that it was violated by Crowe and the Iron "Works Company and enjoining them therefrom, and the other in the United States district (formerly circuit) court adjudicating that the contract was rescinded by the act of the parties on November 2-d, 1912. It seems quite clear that Crowe should have pleaded the rescission in the chancery suit so that all the issues relating to the validity of the contract might have been tried in that suit. Not having done this, he now finds the chancery injunction in his way, and he seeks to relieve himself of the burden by moving to vacate the writ.

Ordinarily, relief of the sort demanded here would be sought by a bill of review, but no such bill can- be filed in this case, for the reason that the time limit for taking such action expired long since, and unless he can have relief by the motion now pending, or its equivalent, he loses the effect of the decree of the federal court and the injunction will stand as if there had been no decree avoiding the contract.

■ In my opinion, Crowe should now be relieved from die burden of the injunction in chancery, but not in the form in which the present motion is made. Instead of vacating the injunction, which would be equivalent to vacating the decree, an order should be entered permanently staying all proceedings on the decree.

The manner of dealing with final decrees was discussed by the present chancellor in two recent cases—Hudson Trust Co. v. Boyd, 80 N. J. Eq. 267, and Smith v. Smith, 84 N. J. Eq. 13. The first of these two cases was a motion to open a final decree, vacate the enrollment and dismiss the complainant’s bill in a foreclosure suit. Eor reasons which appear in the opinion the chancellor denied the motion, but held that after a final decree had been made the proceeding was no longer under the control of the parties, but that it was under the control of the court, and that such decrees would be opened only to let in a defence to prevent fraud or mistake, or otherwise to further the ends of justice, and that after a decree had passed, in order to effectuate a settlement by the parties, the proper practice is to stay proceedings and not dismiss the bill. In'the other case a similar ruling was niade in a partition suit, and I take it to be the rule as enunciated in those two cases that when justice requires that proceedings be taken adversely to a decree, and the circumstances are such that a bill of review cannot be filed, the only remedy left open to the parties is to stay all proceedings thereon. This course was taken by me in the case of Rosenstein v. Burr, 83 N. J. Eq. 491. There a decree was made in favor of a complainant in a specific performance suit; he declined to perform, and the question arose what should the defendants do to relieve their land from the cloud of the decree, and it was held, under the authority of the English cases, that there should be a decree rescinding the contract and staying -all proceedings in the suit, and that seems to be the only measure of relief which can be awarded to Crowe in the cáse at bar.

Inasmuch, however, as Crowe did not avail himself of his right to plead the rescission in the chancery suit he should be put upon terms. The order staying proceedings should be conditioned upon the payment by Crowe of all the Barnett company’s costs and counsel fees in the chancery suit, in the- court of errors and appeals and in the federal jurisdiction.


author: Backes, Y. C.

text:
    Central Trust Company, trustee, &c., v. Central Freezing Company of Atlantic City et al.
    [Decided November 15th, 1915.]
    1. Complainant was the trustee named in a purchase-money mortgage upon the plant of defendant company amounting to $175,000, $15,000 of which was payable by ttoee notes of $5,000, endorsed by the defendant’s promoters, the balance of $160,000 in twenty years represented by bonds secured by ■ the mortgage; the plant then being subject to three mortgages, two of which matured May 1st, 1914, and all of which the mortgagee was to pay before the bonds were to be delivered by the mortgagor. At the time of the mortgage the bonds had not been prepared, and a draft of one of them was inserted and a temporary bond of $175,000 was substituted, and the bonds were to be delivered to the trustee on January 1st, 1914, and on default of interest, &c., the principal sum was to become due. The mortgagor failed to deliver the bonds to redeem the temporary bond and defaulted.—Held, that the mortgagor was not excused from delivering such bonds by the mortgagee’s failure to pay off the two subsequently maturing mortgages, which it was ready to do on the delivery of the bonds, and that the mortgagee was entitled to a foreclosure.
    2. On such foreclosure, and the ordering of a sale to make the principal of the mortgage with accrued interest, &c., the amount of $160,175 was to be paid to the mortgagee, first deducting therefrom and paying the mortgages encumbering the property at the time of purchase, and which the mortgagee was obligated to pay; and $15,175, representing $15,000 of the bonds secured by the mortgage which were to be issued to the mortgagor’s promoters, was to. be paid to the mortgagee to be applied to the payment of the notes of the mortgagor endorsed by the promoters in part payment of the purchase price.

      Messrs. Stackhouse & Kramer, for the complainant.

      Mr. John F. Horned and Mr. James S. Gradwell, ior the defendants.
   Backes, Y. C.

At the conclusion of the hearing of this case, June 28th, 1915, it was announced that a decree would be awarded to the complainant for the full amount of its claim. Reasons therefor were given sufficient, for tire time being, to enable counsel to formulate the decree. An appeal has been taken, and a request has been made for a fuller statement of view,s, as was intimated, would he done if the cause were to be reviewed.

The bill was filed by the Central Trust Company, trustee (February 2d,-1915), to foreclose a purchase-money mortgage given by the Central Freezing Company of Atlantic City, for $175,000, upon its plant in that city.' The mortgage to the trust company covered real and personal property. Through inadvertence, it was not recorded as a chattel mortgage. Judgment creditors of the freezing company levied upon and subsequently sold all of the personal property which went to make up the ice-freezing plant as it stood when the freezing company purchased it. The pledge has, consequently, greatly diminished in value.

In 1912, the Center Freze Realty Company, then the owner of the plant, sold and conveyed it to the freezing company for .$175,000, free of encumbrance. Fifteen thousand dollars was agreed to be paid by three promissory notes of $5,000 each, payable within one year, to be endorsed by the promoters of the freezing company, Messrs. '.Serrill, Turner & Gradwell. The balance was to be paid in twenty years, represented by $160,000 of bonds of the denomination of $500 each, to be secured by the mortgage under foreclosure. The plant, when conveyed, was subject to mortgages of. $60,000, of which two,, amounting to $35,000, matured in May of-1914. The third mortgage of $25,-000 was payable in August, 1915. It was agreed that the realty company should pay off these mortgages as they matured, and for the securing of this, the freezing company’s bonds were to be held by the trust company and not to be delivered to the realty company until the latter canceled the mortgages.

At the time the mortgage under foreclosure, which bears date January 1st, 1913, was executed, the bonds, which it was to secure, had not been prepared, and, as an expedient, a draft of one of them was inserted in the mortgage and a temporary bond of $175,000 was substituted; the arrangement being that the bonds were to be delivered to the trust company on or before January 1st, 1914. Interest on the bonds was payable in January and Jnty, and, upon default in the payment of interest, insurance or taxes, for sixty days, the principal sum was to become due and payable. The interest on the bonds^ less $600, was paid to January 1st, 1914. The freezing company admits defaults in the payment of interest after that time. The freezing company also failed to deliver to the trust company its bonds to redeem the temporary bond, which it was to do by January 1st, 1914, and sets up, to evade the effect of both shortcomings, that the realty company failed and refused, in May of 1914, to pay off the two mortgages of $35,000, which then matured. The freezing company was manifestly not excused from delivering the bonds on or before January 1st, 1914, according to agreement, because up to that time the realty company had done all it was required to do, and was anticipating the performance of its contract to pay the mortgages, which were to fall due in May then next. Apparently, the only reason advanced for the non-delivery-of the bonds is that given by Mr. Gradwell, who seems to be the spokesman of the freezing company, that the trust company never offered to surrender the temporary bond. This is too feeble to discuss. The reason for the failure and refusal to pay interest after January 1st, 1914, is also without merit. The realty company, through its president, Mr. Hurley, had purchased from the owners the two mortgages, and had deposited them with the trust company, ready for cancellation, whenever the freezing company 'delivered its bonds to the trust company. This the freezing company’s officers knew, for they had been repeatedly called upon to make delivery. The mortgages are still with the trust company, available for the execution of the contract. The failure of the realty company to cancel the mortgages is not open to criticism. Now, in this posture, was not the realty company entitled to the benefit of the trust mortgage? The delivery of the freezing company’s bonds to the trust company was not essential to the right of recovery, and the unwarranted refusal to comply with the contract in this respect did not deprive the realty company of its beneficial and equitable ownership in the debt represented by the mortgage, to the extent of $160,000.

Default having been admitted, a decree was ordered directing a sale of the premises, to make the principal of the mortgage, with accrued interest, accumulated insurance premiums, &c., with costs, and out of this sum, after deducting costs, one hundred and sixty one hundred and seventy-fifths was to be paid to the realty company, first deducting therefrom and paying the mortgages of $60,000 which the realty company was obligated to cancel. Fifteen one hundred and seventy-fifths, representing $15,000 of the bonds secured by the mortgage, which were to be issued to the three promoters, was ordered to be paid to the realty company, to be applied to the payment of the three notes given by the freezing company, endorsed by them, in part payment of the consideration price. These bonds were to be, or were, in fact, issued to these endorsers by the freezing company, as collateral security for the payment of the notes, and to save them harmless from loss, by reason of their endorsements. The three notes were endorsed over to and discounted by the present holder, for the realty company, and not being paid at maturity, it received notice of the dishonor. The security held by the promoter-endorsers enured to the benefit of the realty company, and entitles it to the proceeds of the mortgage, to the extent and to be applied as indicated.

I observe, now, although counsel has not called my attention to it, that out of the proceeds of sale the complainant should be first reimbursed for the moneys advanced for the payment of insurance premiums and taxes, and that thereafter the distribution should be in the proportions above mentioned, but as this is not harmful to the appellant, freezing company, I assume it is not complaining.


author: Backes, V. 0.

text:
    Matthew A. Hermann v. Mexican Petroleum Corporation, a corporation duly incorporated under the laws of the State of Maine.
    [Submitted and decided November 29th, 1915.]
    1. Pending an action in ejectment, courts of law have injunctive power to restrain waste and to protect and preserve the property involved.
    2. A suit in chancery is commenced when process is issued. The statute requires the bill to be then on file.
    3. Before the issuing of process, a cause is not “pending” in chancery, so as to make it the subject of removal into the law courts, under the Transfer of Causes act.

      Mr. Peter P. Daly and Mr. Freeman Woodbridge, for the complainant.

      Messrs. McCarter & English, for the defendant.
   Backes, V. 0.

The complainant claims to be the owner of a piece of meadow land of about six acres, in the borough of Roosevelt, Middlesex county, in the bill described by metes and bounds, and at a fixed location, which he recently enclosed with a fence. The defendant has entered upon it for the purpose of building an embankment to carry a railroad across the tract, connecting two of its factories. Upon the filing of the bill to restrain this trespass, an order to show cause was granted, with a temporary stay. On the hearing it was shown that, December 28th last, Benjamin E. Vail’s executor conveyed to the complainant a tract of land by the description contained in the bill of complaint. Vail’s paper, title was acquired in the sixties, and conveyed to him a piece of meadow land in Raritan township, Essex county, of which one John Ludlam died seized. Where, in the township the parcel is situated, is not stated in the deed with any degree of certainty. The complainant attempted to locate it by a map which was found enclosed in Vail’s deed, after his death, upon which is shown two ponds. By identifying the two ponds shown on the map, with the two on the locus in quo, and then tracing the outline of the tract, as disclosed by the map, he fabricated the description, which he set up' in the bill as describing his property. Evidence was given showing that by permission of Vail salt hay had been cut on the land in controversy. The defendant sets up title under a chain running back as far as 1820, and also produced some evidence showing that owners in its chain of title, at various times, cut hay thereon..

If the complainant’s title to this waste land were clear, I would regard the proposed act of the defendant as such a willful intrusion upon, and unwarranted appfopriation of, the complainant’s property, and the structure about to be placed upon it as such an irreparable injury as to warrant interference by injunction.

But, in order to justify an equity court’s intervention, it must appear plainly that the complainant has title, which is free from doubt. Allman v. United Brotherhood of Carpenters, 79 N. J. Eq. 150; affirmed, Ibid. 641. Now, it is perfectly apparent, from a reading of the Vail title deed, upon which the complainant has builded, that it is very questionable whether the locus in- quo passed under it. In the first place, the land thereby conveyed is stated to be in the county of Essex, and not in Middlesex county, where this property in dispute lies. I am not informed whether there is a township of Baritan in the. county of Essex, but, as the deed stands, it is not to be assumed that it was intended to convey a title to land not in that county. And secondly,-the generality of the description in the deed is of such uncertain and ambulatory location, that it can, if the map is to guide, be fitted to any piece of land in Baritan township,.’ .upon which may be located two ponds, corresponding to those on the meadow in question. For this reason a preliminary injunction m.ust be denied. . . .

Should the bill be dismissed? The title of the complainant is disputed, and the defendant has interposed a challenge to this court’s jurisdiction over, the controversy. The defendant’s, title may be well founded, or it may not be, but it is not within the province of this court to examine into the merits. The jurisdiction of equity to entertain the cause, in the absence of elements strictly of an equitable nature, is ousted by a challenge, when it appears that the dispute of the complainant’s title is substantial and not a mere pretence. The claim of the defendant to the land is rested upon the record title and exercise of ownership, and as arrayed against the demands put forth by the complainant, presents a purely legal question involving the title to land, the issue of which must be tried and passed upon in the law courts. Where irreparable injury is being perpetrated or threatened, this court will interfere by injunction, and if the complainant’s case rests upon title to land which is disputed, the cause will be held, and the status quo of the parties maintained, pending the trial at law. When the wrong is such as equity will redress only after the complainant’s title is settled at law, and no objection is made that the bill was prematurely filed, it will be held until that event. But where the jurisdiction is pleaded, and the cause involves no equitable features or injuries which this court alone can redress, then the bill must be dismissed. This is the rule, as I understand it, laid down in Outcalt v. Helme Company, 42 N. J. Eq. 665, and in Mason v. Ross, 77 N. J. Eq. 527; Thropp v. Public Service Electric Co., 84 N. J. Eq. 144.

Even though this court, in the present circumstances, is not permitted to intervene to prevent the threatened injury, the complainant is not without immediate available redress. In an action in ejectment, the supreme court may interfere by injunctive proceedings to protect him. Section 246 of our Practice act (Comp. Stat. p. 4127) provides that—

“In any action in which the right to lands or to goods and chattels is in controversy, the court or a judge may make an order for the protection of the property in controversy from waste, destruction or removal beyond the jurisdiction of the court, upon satisfactory proof being made of the necessity for such order and enforce such order by an attachment for contempt.”

This was the practice before the statute was passed. Den v. Kinney, 5 N. J. Law 634; Harker v. Christy, 5 N. J. Law 824; Kircher v. Schalk, 39 N. J. Law 335; Oehme v. Rucklehaus, 50 N. J. Law 84.

At the hearing, I was of the impression that the filing of the bill started the suit, and then stated that instead of dismissing the bill, as was formerly required, the cause would be transferred to the supreme court, under the provisions of the Transfer of Causes act, 1912 (P. L. 1912 p. 4-17), where the complainant could use the pleadings and proofs before this court for relief there.

Upon further examination and reflection, I have come to the conclusion that the order of transfer should not have been máde. No subpoena was issued. The act provides for the transfer of causes “pending” in any court. Before the statute of 1¡. Anne, ch. Í6 § 22 (a. d. 1705), suits in chancery were begun by the issuing of process, after which the bill was filed. Though that statute, from which section 3 oNour Chancery act {Comp. Siat. p. 1/11) was modeled, ordained that process should not issue till after the bill is filed, it did not alter the rule that the issuance of the writ was the commencement of the suit. In Fitch v. Smith and Terry v. Smith, 10 Paige 9, where the question arose as to which of two suitors had priority of lien, by reason of priority of suit, Chancellor Walworth said:

“'The complainants in both of these cases sent their bills to the clerk’s office at the same time, neither being aware of the fact that the other was about to commence a suit against the same defendant for a similar purpose. But, owing to a mistake, the deputy clerk, who acted as the appellant’s agent, filed the bill immediately, and without applying to the vice-chancellor for an injunction thereon, in consequence of which mistake that bill got on to the files of the court two hours before the respondent’s bill. And if the filing of the bill, before talcing out and serving a subpoena or making a bona fide attempt to serve it, was the commencement of a suit in this court, the appellant would have obtained a preference in payment out of the property of the defendant, in consequence of this mistake of the deputy clerk. The filing of the bill, however, is not the commencement of the suit, although by statute the bill must now be filed before any process for the appearance of the defendant can be issued. 2 Rev. Stat. pp. 179, 180 §§ 70, 76. It is true, in common parlance, we use the expression 'filing of the bill’ to denote the commencement of a suit in chancery, instead of referring to the issuing and service of the subpoena, or' the making of a bona fide attempt to serve it, after the bill has been filed, which is the actual commencement of the suit in this court.” Citing Webb v. Pell, 1 Paige 564; 1 Dan. Ch. Pr. 554.

The authorities upon this point are collected in United States v. American Lumber Co., 80 Fed. Rep. 309; 85 Fed. Rep. 827. The presentation of a bill to the chancellor, and the granting thereon of an order to show cause why an' injunction should not issue, with an ad interim stay, brings the litigation before him for a limited purpose, and is not the institution of the suit. It is merely before him on a motion to consider the question whether an injunction should issue when the suit should be commenced; to which the defendant enters but a special appearance for the purpose of combating the application, a privilege accorded him, which has grown into popular practice within recent years. The earlier method was to, in the first instance, grant a preliminary injunction, with the sealing of which a subpoena had to be issued, and, obviously, because the writ of injunction could not go forth except in a suit which had been began. In Allman v. United Brotherhood of Carpenters, supra, the present chancellor had occasion to call attention to the correct practice. The result of my investigation is that at the time the order of transfer was made, there was no cause “pending” in this court, within the meaning of the Transfer act, and it will be stricken out and a decree entered dismissing the bill. The dismissal at this stage of the case—the jurisdictional question having been raised—is warranted by the practice. Philadelphia Trust Co. v. Merchantville, 74 N. J. Eq. 330.


text:
    Gottlieb Jung v. Minnie Jung.
    [Submitted and decided December 7th, 1915.]
    Under Divorce act (2 Oomp. Btat. 1910 p. 2041 § SS), providing that full faith and credit shall be given to another state’s decree of divorce, except that if any inhabitant of the state shall go. into another state, territory or country to obtain a divorce for a cause occurring while the parties resided in New Jez-sey, or for a cause not ground for divoz’ce under its laws, a decree so obtained shall be of no force in New Jersey, where a wife went to Reno, Nevada, to procure a- decree for extreme cruelty occuz-ring in New Jersey, and was guilty of fraud upon the court of Nevada in procuring a divorce before she had been a dona fide resident there for a year, as required by statute, such Nevada divorce will be annulled in New Jersey on the bill of the husband.

      Mr. William Harris, for the complainant.

      Mr. William J. Kraft, for the defendant.
   Backes, Y. C.

The object of this bill is to annul a Nevada divorce on the ground of fraudulent imposition upon the court of that state. At the time the petition for divorce was filed, the Nevada statutes required a bona fide residence in the state, of the plaintiff or defendant, of not less than one year’ next preceding the commencement of the action, to confer jurisdiction upon its courts. Stat. (Nev.) 1-913 p. 10. The complainant and defendant in this cause lived in matrimonial relations in Camden county, in this state, from the time of their marriage in June, 1885, until July 13th, 1913, when the defendant went to Reno, Nevada, arriving there on August 5th. One year and two days thereafter she commenced suit for divorce, setting up extreme cruelty. Service of process was by publication and service in this state. Divorce was granted September 29th, 1914; the defendant returned to New Jersey in October following. At tlie time the defendant left New Jersey, she owned, as she still does, improved realty in Camden. This she left in charge of an agent, with the request to take care of it until she returned. She called upon her insurance agent to attend to renewals of fire insurance, which would expire during the period of her proposed absence. On the witness-stand she frankly confessed that her only purpose in going to Nevada was to obtain a divorce; that she had never been west before, and that when she started she did not know where Eeno was. After she arrived, she took board at a hotel and remained for eight day's, and then started housekeeping in a four-room dwelling, which she furnished at an expense of about $100. After living in Eeno six months, she says her health so improved that she concluded to remain permanently, and then consulted counsel in her divorce matter. Section 33 of the Divorce act requires—

“Full faith and credit shall be given in all courts of this state to a decree of annulment of marriage or divorce by a court of competent jurisdiction in another state, territory or possession of the United States, when the jurisdiction of such court was obtained in the manner and in substantial conformity with the conditions prescribed in sections 5, 6 and 7 of this act.”

Our court of errors and appeals has held that “where the plaintiff in a cause is required by statute to have been a bona fide resident of the state in which his action is brought for "a fixed period of time, in order to enable him to maintain his action, the ascertainment by the court of the fact of such residence necessarily precedes a consideration of the merits of the case, and the determination of that question by the court is final, not only in the courts of-that state, but in every other jurisdiction where the validity of the judgment comes in question, unless such determination has been procured by fraud." Magowan v. Magowan, 57 N. J. Eq. 322; Fairchild v. Fairchild, 53 N. J. Eq. 678; Miller v. Miller, 66 N. J. Eq. 436. It is proved beyond peradventure that, at the time the divorce suit was commenced, the defendant was not a bona fide resident of Nevada for the required statutory period, and that the determination by the court of that state of the fact of residence, as recited in the decree, was procured by fraud. The proviso to the thirty-third section of the act above referred to reads:

“That if any inhabitant of this state shall go into another state, territory or country in order to obtain a decree of divorce for a cause which occurred while the parties resided in this state, or for a cause which is not ground for divorce under the laws of this state, a decree so obtained shall be of no force or effect in this state.” Comp. Stat. p.

The motive of the defendant, and the ground upon which she Secured the divorce, bring the case directly within the language of the statute. The complainant is entitled to a decree.


text:
    Dewey Land Company et al. v. Henry E. Stevens, Jr., et al.
    [Submitted December 7th, 1915.
    Decided December 8th, 1915.]
    After an affirmance by the court of errors and appeals, the court of chancery cannot amend the -final decree. There is nothing further for the lower court to do in the case but to enter the mandate and enforce the judgment. The remedy, if any, is by application to the appellate court.
    On motion to amend final decree after affirmance.

      Mr. Harvey F. Carr, for the motion.

      Mr. George L. Bourgeois, contra.

   Backes, Y. C.

This was a bill to quiet title to lands formerly under thei waters of the Atlantic ocean, claimed by the defendant Stevens under a riparian grant from the state. Upon final hearing, the bill was dismissed by this court, and the complainant appealed, which resulted in an affirmance of this court’s decree. 83 N. J. Eq. 314. The defendant now moves to amend the decree by substituting another, establishing his rights in the land involved in the suit, in compliance with section 6 of the act to quiet titles, which provides that the final determination and decree in such suit shall fix and settle the rights of the parties in said land, and the same shall be binding and conclusive on all parties to the suit. Comp. Stat. p. 5402. This, I apprehend, cannot be done at this stage of the proceedings. The motion, in effect, is to amend the decree of the court of errors and appeals. Hpon a simple affirmance on the merits, there is nothing further for the lower court to do in the ease but to enter the mandate and enforce the judgment.' Thus, there is no discretion which permits the re-examination of matters once concluded, further inquiry into additional matters, the rendition of a different judgment or decree, the vacation of the judgment or decree, or a stay of execution to enforce the judgment or decree. 8 Cyc. 485, where the authorities are collected in the foot-notes.

An illustration of the inability of this court to aid the defendant, and the correct practice to be pursued, will be found in Tuttle v. Gilmore, 42 N. J. Eq. 369. There, the conclusions of the appellate court were misentered in its minutes, and as entered were certified to this court by the remittitur. The mistake was an obvious one, and the chancellor entered a decree, not in pursuance of the language of the remittitur, but as the court above had in fact decided the issue." On appeal from this decree, which the upper court admitted correctly adjudged the rights of the parties, it was reversed, Chief-Justice Beasley, writing the opinion of the court, saying: “The court of chancery had, in point of fact, executed the judgment of this court as it was pronounced, but not as it was entered, and therein we think an error was committed. Like those of all other judicial tribunals, the record of this court, kept under its own supervision, must be taken as the infallible exponent of its mind, and as in every respect being correct; it is not alterable except under its own authority. The result, therefore, is that the respondent should have been sent to this court to ask that this misentry should be rectified. It was a formal error for the court below to attempt to amend this record by a construction of the opinion read in the case. Consequently, we think the proper course is to reverse the decree below, to amend the entry of the judgment in this court, and at the present time to render a final decree in favor of the respondent on the basis of the decree of the chancellor.”

Moreover, looking into the opinion of the court of errors and appeals, in the present case, I find that the judgment of that court, dismissing the bill, was rested entirely upon the untenability of the complainants’ claim to title, and in no aspect was the defendants’ title pretended to be examined and confirmed. In such circumstances, this court, in its determination of the cause, would not have awarded the relief the defendant now seeks on this motion.

■ The motion will be denied.


text:
    Matilda H. Walker et al., executors of Mary A. Walker, deceased, v. Mary Chambers et al.
    [Submitted December 7th, 1915.
    Decided December 8th, 1915.]
    A bequest “to my cousins” Held to mean first cousins only. .
    On bill for construction of will.

      Mr. J. Clarence Conover, for the complainants.

      Mr. Samuel A. Besson, Mr. Harlan Besson and Mr. Hugh K. Gaston, for the defendants.
   Backes, Y. C.

Mary A. Walker, deceased, left a will giving lier estate to institutions, friends and relatives. It contains twenty-nine items of disposition of specific property or money of stated sums. The last item reads: “I give, devise and bequeath the remainder of my personal property to my cousins mentioned in this will.”

Ten first cousins and seven second cousins are mentioned. The second cousins contend that they are entitled to participate as “cousins,” and the question which the executors are unable to solve with security to themselves is, whether the residue of the personal property should be divided into ten or seventeen parts. They ask for advice and instructions. Now, who was meant by “cousins ?”

Hawkins says, “A gift to ‘cousins’ prima facie means only first cousins.” Hawk. Wills (Sang. 2d ed.) 116. Jarman lays down the same rule (6th ed.) vol. 2, p. 162. In Stevenson v. Abingdon, 31 Beav. 305; 54 Eng.. Reprint 1156, it was said by the master of the rolls: “Prima facie, the word ‘cousin’ means first cousin, and not a first cousin once or more times removed; still less does it mean a second or third cousin, which might go on indefinitely.” Oxford Dictionary defines “cousin” to be: “2 spec. The son or daughter of (one’s) uncle or aunt—own, first, or full cousin, COHSIN GERMAN. (The strict modern sense.)” The definition given by Webster is: “2 specif. The son or daughter of one’s uncle or aunt (called more fully own, first, or full, cousin, or cousin-german).” The Century Dictionary, volume 2, gives it: “Specifically, in modern usage; 2. The son or daughter of an uncle or an aunt, or one related by descent in a diverging line from a known common ancestor.”

In its usual and ordinary acceptation, the term “cousin” does not connote second or third cousin, and in common parlance and daily intercourse, it is generally understood to relate to a child of an uncle or aunt—first cousin—and, without anything else to guide us, it is to be assumed that the testatrix used it in the popular sense; and so it was held by Lord-Chancellor Cranworth, in Stoddart v. Nelson, 6 De G. M. & G. 68; 43 Eng. Reprint 1156, in construing a bequest to the testator’s cousin who should be living at his decease: “I have come to the conclusion that it means first cousins onty,” he says, “I think that, if a testator saj's no more than that he gives to 'cousins/ he must be taken to mean first cousins. That will be a practical construction, and one by which the parties entitled will be easily ascertained; it coincides, too, with ordinary experience, for when a person speaks of cousins he generally means first cousins, the children of an uncle or aunt; and I think that, in the present case, there being first cousins, this is the proper construction to adopt.” In Burbey v. Burbey, 9 Jur. 96, the testator made money bequests to six cousins, the sums to be in addition to what they would otherwise take under the statute of distribution equally with the testator’s cousins, the Carters, in New Brunswick, or elsewhere (one of whom was a first cousin and the other a first cousin once removed). The residue of his property the testator gave and bequeathed unto all of Iris cousins in all respects. Vice-Chancellor Stuart held that first cousins only were entitled to the property.

There is absolutely nothing in the context of the will indicating an intention of the testatrix that those of the second generation were to participate in the class of cousins. • Some of the first cousins, to whom specific property or money was bequeathed, are referred to as cousins, while six of the second cousins are simply designated as children of persons who stood in the relation of cousins. If anything is to be gathered from this, it is the impression that the class the testatrix had in mind was the one formed'by first cousins. Caldecott v. Harrison, 9 Sim. 457; 59 Eng. Reprint 455. The complainants will be advised to make disposition among the first cousins.

Other questions of construction, raised by the bill, were settled by counsel at the hearing.


author: Backes, V. C.

text:
    William E. Bridgewater v. Ocean City Association et al. William G. Carroll et al. v. Ocean City Association et al. Henry Bradley v. Ocean City Association et al.
    [Decided December 15th, 1915.]
    1. A restriction upon the use of land fronting on navigable waters of this state extends over lands afterwards acquired by accretion.
    2. A restriction upon the use of land lying on navigable waters of this state does not extend by estoppel over riparian lands afterwards acquired by the covenantor from the state.
    3. An estoppel does not arise where the party sought to be estopped took the after-acquired title as a mere conduit of transfer.
    4. The defence of a bona fide purchaser for a valuable consideration without notice, must be pleaded, though notice be not charged in the bill. In the absence of statutory regulations, the burden of proof is upon the pleader.
    5. Payment, or its equivalent, of the whole purchase-money, is essential to the defence of a bona fide purchaser. The execution of a bond and mortgage in payment is not sufficient.
    6. One who stands by and silently permits another to make large expenditures in improvements on land, under an honest belief that he is the rightful owner, must be Held to have acquiesced and to be estopped from being heard to complain. The question is not so much what the party setting up. the estoppel might or ought to have known or supposed, as what he actually did know and suppose to the* knowledge of the other party.
    7. Belief of an equitable nature will not be afforded a complainant unless he acts with diligence. One who supinely sleeps upon his rights will be charged with laches and barred.
    On final hearing.

      Messrs. Wilson & Carr and Messrs. Apgar & Boswell, for the complainants. '

      Messrs. Bourgeois & Coulomb, for the defendants Ocean City Association and Atlantic Land Development Company.

      Mr. J. Fithian Tatem, for the defendants Lewis M. Cresse and wife and Henry D. Moore.

      Messrs. Marter .& Rose, for the defendant Charles M. Masland.

      Mr. Samuel 11. Hahn, Mr. Izetta Hahn and Mr. John Boyd Avis, for the defendants Centenary Fund ánd Preachers Aid Society of the New Jersey Annual Conference of the Methodist Episcopal Church.

      Messrs. Bleakly & Siockwell, for the defendants Mary J. Buchanan and Ocean City Tabernacle Association.
   Backes, V. C.

The fundamental rights upon which the complainants in these cases rest their claim to relief are established by the judgment of the court of errors and appeals in Lennig v. Ocean City Association, 11 N. J. Eq. 606, and in Bridgewater v. Ocean City Railroad, 62 N. J. Eq. 276; affirmed, 63 N. J. Eq. 798. The Ocean City Association, in 1880, launched a building scheme by subdividing a large tract of land located between the Atlantic ocean and Great Egg Harbor bay, Cape May county, which has since become Ocean City, into streets and building lots, and as an inducement to prospective purchasers of lots, declared orally and in literature exploiting the undertaking, that the blocks between Fifth and Sixth streets, from ocean to bay, were to be devoted to camp meeting purposes, and to be kept open forever. Plans of the subdivision were filed in the county clerk’s office on which the space so allotted was not plotted into lots. See copy in Bridgewater v. Ocean City Railroad, supra. Hpon these premises the court of last resort held that the association had entered into an enforceable implied covenant with the lot holders that the blocks should be devoted to the uses indicated, and on this phase its deliverances are res judicata in the present controversies. Since then the association has sold and conveyed parcels in the reserved area, on two of which the purchasers have erected buildings; and its avowed intention is to sell to others for like purposes. The complainants are owners holding title immediately or mediately from the association, and seek to remove past, and restrain further, encroachments upon their rights under the covenant.

Of the new questions to be decided, the most conspicuous and important, in the material sense, is whether the covenant applies to land acquired by the association through accretion, by a.recession of the ocean and alluvial deposits. When the covenant was made in 1880, the mean high-water line of the ocean, in front of the reservation, was westerly of Atlantic avenue, the reach of the tide being some three hundred feet. In 1901', the ocean had receded about a thousand feet, and in that year the association purchased the state’s riparian right which, in the grant, was described as three hundred and fifteen feet along Sixth avenue extended to the exterior line established by the riparian commissioners. It is settled in this state that where land located on tidal-waters is dedicated to public use, to afford a means of access to the water, the public’s easement extends to the water over lands acquired by reclamation or accretion. In Jersey City v. Morris Canal Co., 12 N. J. Eq. 514, it was held that a dedicated street terminating at the waters of a navigable river is continued to the new water front obtained by filling in in front of the' shore by the owner of the land over which a street was dedicated; and, in Newark Lime and Cement Co. v. Mayor of Newark, 15 N. J. Eq. 64, it was laid down that the survey of a highway to a navigable river, carried the highway to the river wherever it is found, and that if the shore is extended by alluvial deposit, or by filling in by the proprietor, the public easement is, by operation of law, extended from its former terminus over the new made land, to the water. The court of errors and appeals, in Hoboken Land and Improvement Co. v. Mayor of Hoboken, 36 N. J. Law 540, accepted the judgment in these cases as declaring the law correctly on this subject. Seabright v. Allgor, 69 N. J. Law 641. Now, if the rule of construction of private grants, that a grant of land bounded on a stream which has gradually changed its course by alluvial formations, holds to the new boundaries, including the accumulated soil, is applicable to public rights acquired by dedication, as was the view of the United States supreme court in New Orleans v. United States, 10 Pet. 662, 717, it is appropriate to an implied covenant having relatively the same legal scope.

It is not, however, a legal sequence to this applied rule of construction, that the covenant extends across the state’s land subsequently acquired by the association. The United States supreme court, in Hoboken v. Pennsylvania Railroad Co., 124 U. S. 656, decided that a riparian proprietor in New Jersey has no power to create an easement for the public over lands below high-water mark, as against the state and those claiming under it; and if he attempts to do it, and then conveys to another person all his right to reclaim the land under water fronting his property, his grantee may acquire from the state the title to such land, discharged of the supposed easement. This doctrine was adopted by our supreme court in Elizabeth v. Central Railroad of New Jersey, 53 N. J. Law 491, and in Evans v. New Auditorium Pier Co., 63 N. J. Eq. 674, this court held tire covenant of a grantee, .binding himself, his heirs and assigns, restricting the use of his land lying on the ocean front, not to embrace adjoining riparian lands afterwards acquired by his assigns from the state. But, argue the complainants, the association has purchased the state’s title and has made possible the performance of the covenant in its broadest sweep, and, therefore, it is estopped. This may be met by the answer that it does not appear in the case that the ocean’s retreat so far has left any part of the state’s lands dry, and that present conditions do not infringe the requirements of the covenant. I will not pause, because my opinion on the point is against the complainants’ contention and has bearing upon the rights of defendants who own land on the bay side within the riparian rights hereafter to be alluded to. The proposition advanced by the complainants might have merit if the covenant had been that the association would, upon acquiring the state’s title, appropriate it to the use indicated, or if it had represented itself to be the owner; but that was neither the nature of the undertaking nor the situation, and I apprehend that the right to relief does not reside in estoppel. The full measure of the association’s obligation in this connection, it seems to me, is to be discovered in a correct interpretation of its contract. Now, when the covenant was made to keep open forever the strip of land from ocean to bay, the association owned only down to high water and was utterly impotent to bind beyond. This limit of its power, it must be assumed, was within the comprehension of the contracting parties, and hence, that it was not within the contemplation of the bargain other than, that the restriction should stop at the state’s line. The self-established or mutually-recognized boundary manifestly marks the confine of the covenant. In a somewhat similar situation, the court of errors and appeals, in Camden v. McAndrews & Forbes Co., 85 N. J. Law 260, adjudged that the making and use bj; a landowner of a sales map or plan of his land showing lots, blocks and streets, and the conveyance of land by reference thereto, constitute a dedication to public use of the streets delineated thereon so far as the ownership extended at the time the map was made, •but not of streets lying wholly outside the owned tract, though the land be subsequently acquired, unless there be some further act evidencing an intent to dedicate streets traversing such after-acquired property. The elements of an estoppel (8 Washb. Real Prop. (6th ed.) 81) are totally absent and relief must be denied on this score. The covenant cannot be stretched beyond its fair intendment. Courts of equity do not aid one man to restrict another, in the uses to which he may lawfully put his property unless the right to such aid is clear. Fortesque v. Carroll, 76 N. J. Eq. 583.

The association sold tire accrued land, including the riparian title, in 1909, to the Atlantic Land and Development Company, by a description beginning on the easterly side of Atlantic avenue and extending along Sixth street extended oceanward one thousand three hundred and nineteen feet to the exterior line-of the riparian grant, and the next inquiry is whether the covenant is binding upon it. The development company does not set up the defence that it was a purchaser in good faith, without notice of the covenant. Chancellor Kent, in Murray v. Ballou, 1 Johns. Ch. 566, said that if a party means to defend himself on the ground that he was a bona fide purchaser for a valuable consideration, without notice of a trust, he must deny the fact of notice and every circumstance from which it can be inferred. And, notice must be denied though not charged by the bill. Jones v. Thomas, 3 P. Wms. 244; 24 Eng. Reprint 1047, note. Such defence does not profess to go to the merits of the controversy tendered by the complainant, but only to the propriety of the remedy that the court is asked to enforce. It is new matter in bar of the jurisdiction of equity, and proceeds upon the notion' that as no consideration can appeal more favorably to a court of equity than that of one who in good faith has paid for a title without notice of any encumbrance, a court of equity will not concern itself with a comparison of equities, but will content itself with a denial of its remedial assistance. Atlantic City v. New Auditorium Pier Co., 67 N. J. Eq. 610. The burden is upon the defendant to establish the truth of the plea, unless it is shifted by the Registry act. Hodge v. Amerman, 40 N. J. Eq. 99. The failure to plead immunity from attack on this ground, therefore; leaves the case to be dealt with according to the equities of the parties.

Even if the defence had been interposed, it could not, in my judgment, have been sustained. The defendant had notice of the maps or plans of Ocean City hied by the association; its deed makes reference to them, and, together with the physical evidences on the ground were, as Nice- Chancellor Grey observed, in Bridgewater v. Ocean City Railroad, quite sufficient to put it on warning that those lands were devoted to some use calling for an open space. The uniform use of the .side lines of Fifth and Sixth streets for town lots, and the leaving the squares between Fifth and Sixth streets as open blocks, nearly in the centre of the city, was an indication that they were devoted to some special purpose. Slight inquiry by the defendants would have disclosed to them what their use was, if they were, in fact, at any time ignorant of it. The defendant was fairly notified, by all these circumstances, of the outstanding covenant, and was bound by it, as was the original covenantor. The fact that lots were not plotted on either side of Fifth and Sixth streets oceanward of Atlantic avenue, is inconsequential. The absence of structures throughout the stretch between the two streets (with two exceptions), while the adjoining land was thickly built upon, was calculated to attract attention sufficient to put it on notice.

Furthermore, the defendant is not entitled to the standing of a bona fide purchaser for value, because the consideration price of $12,500 was not paid, but only secured by a purchase-money mortgage. The association conveyed to the development company, by four several deeds, for $50,000, all of its land on the ocean side of Atlantic avenue (one piece being the land in front of the reserve), and took in payment four mortgages of $12,500 each, approximately the value of the parcel mortgaged. Payment, or its equivalent, of the whole purchase-money is essential to the defence of a bona fide purchaser. Notice before actual payment of the purchase-money, although it be secured, is notice before the contract. Haughwout & Pomeroy v. Murphy, 22 N. J. Eq. 531. Actual payment is, in general, necessary to the protection of a subsequent bona fide purchaser for value, and giving a security and executing a bond or other obligation for payment, is not sufficient. Losey v. Simpson, 11 N. J. Eq. 246; Leonard v. Leonia Heights Land Co., 81 N. J. Eq. 489; Kitteridge v. Chapman, 36 Iowa 348; Rush v. Mitchell, 71 Iowa 333; Baldwin v. Sager, 70 Ill. 503.

The defendants Moore, Masland, Cresse and Hahn are owners, respectively, of lots on the bay side of the tract. Hahn’s is entirely below mean high-water line. The other three defendants own upland and the riparian right adjacent. The conveyances by the association to them of the upland run to within three feet of the high-water mark of the bay, and at the time of the sales the association agreed to obtain for them, upon request, the title of the state upon their paying the price. The three-fgot strip along the edge was reserved by the association, so as to include in its conveyances of the riparian title community restrictions, part of the general scheme for the regulation of the conduct of Ocean City. Masland built a boat house on his lot, a corner of which is on the upland. Cresse’s dwelling-house is wholly below high water. At the time these defendants bought from the association the lands on either side of Sixth street produced west of Bay avenue were not plotted into lots, and for this reason they claim notice of the restriction is not to be imputed to them. It is almost impossible to believe that all four did not have actual notice. Bepeated litigation alone made it notorious. They were all, more or less, intimately associated with the development, and interested in the affairs, of Ocean City before they purchased. Senator Cresse was instrumental in passing the act of March 30th, 1904 (P. L. 1904 p. S&6), legislating methods for vacating the dedication of these lands for public use, proceedings under which were set aside by the supreme court in Ocean City Land Co. v. Ocean City and Ocean City Association, 73 N. J. Law 493. But, aside from this, they were, as above found against the development company, charged with notice, by the immediate surroundings and by the maps of the building scheme on file in the clerk’s office. Their title deeds are on printed forms of the association, in which reference is made to the maps. In the Masland deed especial attention is attracted to the maps bjr the obliteration in red ink of the reference. As to their fast land, the defendants Moore, Masland and Cresse will be held'to an observance of the restriction. Their titles held under the state’s grants, as above observed, are not included. If the doctrine of estoppel invoked by the complainants has any place in this case, there is an additional reason for not appfying it to the four defendants above named. It cannot be controverted that if they had taken their riparian grants direct from the state, their title under the state would be unassailable. Now, their agreement with the association at the time they bought their upland, was that upon the payment of the price by them of the state’s title, the association would, on request, procure for them the grant. The intermediate title was to be taken by the association for a specific purpose. Under these circumstances, so far as the lands under water were concerned, the title was in the' association as trustee, and was conveyed to it, and by it merely as a conduit, upon which an estoppel cannot be built. 16 Gyc. 697, and cases in the footnote.

The defendant Mary J. Buchanan owns two lots on the corner of Ocean avenue and Sixth street, in the reserved area, upon which are erected a large boarding-house, or hotel, and for its removal a mandatory injunction is sought. The lots were originally conveyed by the association to Charles Matthews, Jr., in 1896. He had notice of the restriction, for it appears that the conveyance was made to him in consideration of his services in obtaining releases of lot owners of their rights under this very covenant. Mrs. Buchanan became the owner, in 1900, by a deed from the grantee of Matthews, for which she paid approximately $18,000. The boarding-house was moved by Matthews to the lots in 189?, or thereabouts, and enlarged by Mrs. Buchanan some ten years later at an outlay of upwards of $3,500. The complainant, Bridgewater (and it is not a remote surmise that the others did too), knew of the erection and improvements as they were being made, and stood by and, without the slightest protest, permitted these large expenditures to be made. He must be held to have acquiesced and to be barred from now being heard to complain. Trout v. Lucas, 54 N. J. Eq. 361; Goater v. Ely, 80 N. J. Eq. 40. In the absence of denial of acquiescence by the other complainants, they will also be regarded as estopped. The complainants contend that the estoppel should not work against them, because the expenditures were not made in ignorance of their rights under the covenant. It cannot, with any hope of belief, be said that Mrs. Buchanan was not put upon inquiry. The maps, and the unimproved condition of the strip, compared with the adjoining and improved land, were enough to charge her with this duty; but m3'' understanding of the law is that a failure to discharge it will not, at all events, estop one from setting up acquiescence, for, as Vice-Chancellor Pitney said, in Sumner v. Seaton, 47 N. J. Eq. 103, the question is not so much what the party setting up the estoppel might or ought to have known or supposed, as what he actually did know and suppose to the knowledge of the other party. It was not attempted to be proved that Mrs. Buchanan 'had actual notice of the covenant, or of its force and effect, and in view of the large purchase price of the property, and the heavy expenditure of money in its improvement, the only reasonable inference is that she honestly believed, at the times she bought and bujlt, the title to be good, and that she owned the property. More than this is not expected. Sumner v. Seaton, supra.

As to Mrs. Buchanan, the complainants are guilty of laches. The first of these bills by Bridgewater was filed in 1910, and for thirteen years they supinely slept upon their rights. Equity demands diligence whenever its remedy is sought in cases of this kind, and where the right to enforce building restrictions is of a purely equitable nature, a court of equity will not enforce them by mandatory injunction, unless prompt application is made by the person entitled to enforce the restrictions. Trout v. Lucas, supra.

Mr. Masland took title to his upland and erected his boat house in 1900, to the then knowledge of the complainant, Bridgewater. As to him, to compel removal the complainants are barred, both by acquiescence and laches.

The seven defendants, other than Hahn, whose interest in this litigation has just been disposed of, are parties to the three bills. Hahn and others are additional defendants in the Bradley and Carroll suits, and the complaints against them will be now considered.

Ocean City Tabernacle Association owns the fee in the block bounded by Wesley and Asbury avenues and Fifth and Sixth streets, known as the “Camp Ground Square,” on which stands an auditorium. Its answer is disingenuously framed, and does not frankly set forth the capacity in which it holds the title, but With the aid of the brief of counsel it may fairly be inferred that the fee of the Ocean City association was turned over in order that it might carry out the intention of the association to establish and maintain camp' grounds and an auditorium. No threatened violation of the covenant is charged or proved, and counsel asserts that their client never intended and does not propose to lease the ground except for camp ground sites and camp ground purposes. This block, it is admitted all around, was dedicated to the special purpose for which it is now being used, and it is not pretended by either side to be involved in these disputes.

The defendant Centenary Fund and Preachers Aid Society holds title to two lots in the reservation in trust for the estate of Ezra B. Lake, deceased, conveyed to it in payment of dividends clue from the association to the estate. In its answers officially filed, the society denies the application of the restrictive covenant to its lots and the right of the complainants to have it enforced; the implication being that it may use and sell them in defiance of the restriction. In answers subsequently filed by other counsel, the tune is changed. The society therein avers that the conveyances were made “subject to all of the dedications and restrictions, express or implied, theretofore created thereon by the Ocean City association,” and has never used or allowed them to be used for any other purpose “excepting in accordance with the dedications and restrictions set out in the bill of complaint in this cause,” and by cross-bill prays that

“the said dedication may be construed and that the rights of this defendant in the said premises so conveyed to it, as set out in said bill of complaint, as to the use and occupation thereof by this defendant, its grantees or lessees, may be determined by the order and decree of this honorable court.”

Neither set of answers is attested by the corporation in the manner required of corporate pleading. Dick. Gh. Pr. 11-5. The submission to observe the letter and spirit of the dedication cannot be regarded as the concession of the society, and it must be treated as antagonistic to any restraint upon use or right of unencumbered alienation.

James E. Lake and S. Wesley Lake, original promoters of Ocean City, have lots in the forbidden district, which they insist they are at liberty to use for private purposes, unhampered by the covenant.

Other defendants, Ocean City Railroad Company, Scull & Marts Company, David A. Rucker and City Mill and Lumber Company, have not answered.

The final question relates to the form of the relief. The attitude of the Ocean City association throughout this litigation is one of deliberate intention to sell its remaining fee in the reserved area for private building. In its answer, it declares that the time has come when it is necessary for it to dispose of the land, and at the hearing there was no concealment of that purpose. It is too obvious for comment that the purchase by the development company was made for the same object. In one of its answers it says so. There is no way to adequately protect the complainants as against the association and the development company and their innocent grantees, ekcept by the ihjunctive power of this court, and, therefore, they, their successors and assigns, will be restrained from using the land in Ocean City between Fifth and Sixth streets and the Atlantic ocean and Great Egg Harbor ba}q to the point of line of the riparian grants to the association, and from in any manner conveying the same or any interest therein, for any use or purpose whatsoever inconsistent with its use as a camp meeting ground or park.

The defendant^ Moore, Cresse and Masland (as to their upland), Centenary Fund and Preachers Aid Society, James E. Lake and S. Wesley Lake, having denied the covenant and still offering resistance to its enforcement, will be restrained in like manner.

The defendants Hahn and wife, by conveyance from the association, have title to premises purporting to be upland, which at the hearing proved, in fact, to be below high-water line. As to them, the bill will be dismissed, but without prejudice to future action in case of threatened violations upon the upland, if any they have.

Mary J. Buchanan disavows any effort in the past or of intention in the future to- further violate the covenant, and the Ocean City Tabernacle Association also disaffirms the right, desire or intehtion to molest. As against them, the bill will be dismissed, ■ but without prejudice in the event of infractions of the restriction hereafter.

The defendants who have not answered will be enjoined, if it is deemed necessary.

It is suggested that further protection may be afforded the complainants by filing in the clerk’s office a notice of Us pendens.