text:
    William G. Carroll, complainant, v. Ocean City Association et al., defendants.
    [Decided October 11th, 1917.]
    Appeal of the Atlantic Land Development Company.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Baekes, whose opinion is reported in 85 N. J. Fq. 379.

      Messrs. Bourgeois & Coulomb, for the complainant.

      Messrs. Wilson & Carr, Messrs. Marter.& Bose, Mr. John Boyd Avis and Messrs. Bleakly & Stockwell, for the defendants.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-ChancellorBaekes.

For affirmance — The Chief-Justice, Swayze, Trenchard, Kalisch, Black, White, Heppenheimer, Williams, Gardner — 9.

For reversal — Parker, Bergen, Minturn — 3.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    William E. Bridgewater, complainant, v. Ocean City Association et al., defendants.
    [Decided October 11th, 1917.]
    Appeal of the Atlantic Land Development Company.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Baches, whose opinion is reported in 85 N. J. Eq. 379.

      Messrs. Bourgeois & Coulomb, for the complainant.

      Messrs. Wilson & Carr, Messrs. Mcwier & Rose, Mr. J.olm Boyd Avis and Messrs. Bleakly •& Stockwell, for the defendants.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Baches.

For affirmance — The Chibe-Justice, Swayze, TreIichard, Kalisoi-i, Black, White, Heppbni-ieimer, Williams, Gardner — 9.

For reversal — Parker, Bergen, Minturn — 3.


text:
    Mart A. T. Riley, complainant, v. Ocean City Association et al., defendants.
    [Decided October 11th, 1917.]
    Appeal of the Atlantic Land Development Company.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Baekes, whose opinion is reported in 85 N. J. Eq. 379.

      Messrs. Bourgeois & Coulomb, for the complainant.

      Messrs. Wilson & Carr, Messrs. Marter & Rose, Mr. John Boyd Avis and Messrs. Bleakly & Stockwell, for the defendants.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Baekes.

For affirmance — The Chief-Justice, Swayze, Trenchard, Kalisch, Black, White, Heppenheimer, Williams, Gardner — 9.

For reversal — Parker, Bergen, Minturn — 3.


text:
    Isaac Owen, Jr., et al., complainants-appellants, v. Joshua P. Owen et al., defendants-respondents.
    [Decided October 12th, 1917.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, who filed the following opinion: .
    There are several grounds upon which a court of equity is justified in setting aside a(transaction of this kind, if the evidence warrants the charges which are made. A sale at a price grossly inadequate will be set aside by a court of equity. The testimony in this case, however, does not support the claim that the property was sold at a grossly inadequate price. The mere fact that it may have been sold for less than it was probably worth will not justify a decree setting aside the sale. To justify such a decree the proofs must establish as a fact that it was sold at a grossly inadequate price, and a grossly inadequate price has been variously defined by the courts. Perhaps the most popular definition is a price so inadequate as. to shock the conscience of the court. That, of course, is- a figurative expression of a standard which, conveys no very definite idea in percentages.
    At one time I had occasion to determine for my own benefit about what percentage of value was regarded as a grossly inadequate price by examination of the various authorities where sales had been set aside by the courts upon that ground and where they had not been, and I examined what I think was every New Jersey decision upon the subject and ascertained from the cases just what the figures were which were involved in the proofs, and I found, taking all the cases together and adopting that method with a view of ascertaining a possible basis of mathematical standard, that anything in excess of fifty per cent, of the real value had not been ordinarily regarded by the courts as a grossly inadequate amount. I do not mean to say by that that cases cannot be found, in this state where sales were set aside upon the ground of grossly inadequate price where the selling price had been more than fifty per cent, of the value,'for some cases involve other circumstances more or less patent when considered in connection with the selling price, but an examination of all the authorities will lead, I am quite convinced, to the conclusion that the selling price must not much exceed fifty per cent, of the value if that branch of the court’s jurisdiction is to be invoked solely on that ground.
    It necessarily follows that the values testified to in this case would not justify a decree setting aside the sale on the sole claim of gross inadequacy. In fact, the testimony of the real estate agents and others who have placed valuations upon this property varies little more than they usually do in eases of this kind. I find that there are two classes of real estate experts, and in most every transaction that is investigated they will be found dividing themselves up into one or the other of the two groups, one being the group of low valuations and the other of high. I think counsel now before me have no doubt been engaged in many cases where it was necessary to have values placed upon land by a great number of real estate agents on either side, such as condemnation suits, and cases of that nature, and my observation has been, and I doubt not that counsel’s observations have been, that almost invariably the witnesses will line themselves up into the high and the low eases, respectively. Juries sometimes take the total and divide it by two, and I am not sure that they do not get pretty nearly the right result by that method, and I apprehend if we take the maximum valuation here of $2,500, and the minimum of $1,575, add them together and divide them by two, we will not get far from the value of this property at the time it was sold.
    But, in any event, the proofs do not clearly enough disclose any gross inadequacy of price to justify the exercise of the jurisdiction of this court to set aside these sales upon that single ground.
    Another ground upon which a sale of this kind might be set aside would be an inadequate advertisement or any other proceeding that was had preliminarily to the sale which was calculated to violate 'the essential principles that properly enter into a public sale — proceedings that were calculated to or that did in fact result in a sale which was unfair — a sale which had not been advertised in such manner as to meet the inherent requirements of the law which contemplate that all public sales of this nature shall be advertised in such manner as will properly exhaust the field of bidders which can be reasonably procured by a proper advertisement. I think, however, that the proofs fail in that respect. It might in this case have been advantageous to have included in this advertisement the circumstance of the existence of a house on the lot to be sold, or that this property was suitable for residential purposes, that it contained a building that could be used as a residence and therefore was not the sale of a vacant property which could only be purchased to advantage for purpose of speculation or anticipated building; but it is impossible to say that the elimination of that element in the advertisement was operative to lead to an unfair sale. I cannot believe that the rights of a bona fide purchaser at such a sale could be disturbed, after a purchase had been made by such a purchaser, by reason of the omission in the notice of sale of that valuable element touching the nature of the property to be sold.
    The next question, and I think the more serious question, is the one that takes into account both of the elements which have been already suggested, namely, the claim that this property was not purchased in good faith by the person in whose name the title was taken, but that it was in fact purchased in the interest of the executor. The fact that the advertisement did not specify clearly the inherent quality of the property is referred to as a circumstance showing a desire to have the property sold at an inadequate price, or, at least, sold cheaply in the hope that it could be acquired in the interest of the executor, or in the interest of the executor’s family. The circumstance that it did sell at a low price can also be considered in ascertaining, if possible, whether this was a bona fide sale to the person who made the. purchase. But the more imposing and the more vital elements of the testimony upon that subject is the additional circumstance, which is, to say the least, a curious circumstance, that the son of the executor should buy this property with no present means of paying even the usual and customary ten per cent, that is required in cases of purchases of this kind. It is, unquestionably, true that what transpired suggests, and reasonably suggests, the gravest doubts as to whether this property was not in fact purchased in a manner essentially different'from the way claimed by defendants. The circumstance that this son instead of bidding for himself sent someone to bid for him, and entrusted his agent to exercise his judgment, without specific instructions, to such an extent that he was compelled to segregate the values of the homestead property and of the vacant lots in the rear in such manner that the total purchase should come within the limit which had been given him, if, indeed, a limit was given him, and' of that there seems to be some doubt, is extraordinary. In other words, if the limit of $2,000 had been given to this purchasing agent, how could he tell in paying $1,575 for the homestead property that he would be able to purchase the other two lots, separately sold, which lots appropriately went with the property for the remaining portion of the $2,000? It appears he did do so. It came out that way, but it is a peculiar and unusual and difficult position to place a friend in who is to go to a sale to accommodate a purchaser.
    But the more extraordinary feature of the transaction as it impresses my mind is that the son would send a man on air errand of that kind without money, without a deposit, without any realty definite instructions and without money or substantial credit of his own. Those are suspicious circumstances that cannot help but more or less stagger the mind and invite doubts, but they are not conclusive. While I confess I have doubts on the subject, I am obliged to say that I do not feel privileged to conclude that these three men have deliberately perjured themselves upon the subject. This purchasing agent, Mr. Jones, has positively sworn, and with apparent truthfulness, to his part of the transaction. It would be going far to conclude that he has deliberately sworn falsely when corroborated by the executor and the executor’s son. The son has told the same story, essentially the same, and though I confess the story is a strange one, T am unable to believe that I can be justified in disregarding it. The father, who is the executor, swears that he knew nothing about the intention of the son to buy this property and did not know that it -\vas being bought in his son’s behalf. The peculiar and remarkable circumstance of the son relying upon his father to assist him to finance this transaction is not altogether impossible in its conception, because with a father able to do so, and with the relations of the father and son of such a nature that the son could well rely on the father, it is not impossible that he might have realized that he could buy this property and depend upon his father, who was the executor, to help him finance it. If that is so, and this purchase was in no sense in the interest of the father, and they both swear positively' that it was not, the circumstance that he did help him finance it afterwards cannot be regarded as operative to set aside the sale.
    If the transaction was a Iona fide one throughout, from beginning to end, there is no reason why the father should not advance the necessary money to help the son through in this purchase, and I am compelled to conclude that that was the situation.
    The son wanted the property for sentimental reasons, and had good reason to believe that his father would help him out in the purchase, and therefore bought the property on his own account. That is the conclusion 'that I am obliged to reach under the recognized methods of reaching conclusions that are essential and necessa'ry in cases of this kind. The suspicious circumstances to which I refer are not, in my judgment, adequate to justify the court in disregarding the testimony of these men who appear to tell the truth and who I am compelled to believe.
    I will therefore be obliged to advise a decree dismissing the bill.

      Mr. Albert B. McAllister, for the appellants.
    Mr. Royal P. Tuller and Mr. Martin W. Lane, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Yice-Chancellor Learning.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner —14

For reversal — None.


text:
    Dorsey W. Hyde, executor, et al., complainants-appellants, v. Francis DeL. Hyde et al., defendants-respondents.
    [Decided October 11th, 1917.]
    On appeal from a'decree of the court of chancery advised by Vice-Chancellor Foster, who filed the following opinion:
    This action arises over the construction to be given certain provisions of the will of Charles PIyde, of Plainfield, New Jersey, who died on June 12th, 1901, leaving surviving his widow and five children, all of whom were made executors of the will.
    By the fourth paragraph of his will, testator gave the residue of his estate to his executors, in trust; and after directing the payment therefrom, by them, of a large sum of money for charitable purposes, he then directed his trustees as follows:
    “11. To apportion, divide and distribute all the balance of said rest, residue and remainder among my widow, and my heirs-at-law and next of kin, in the same.manner and proportions as said widow, heirs and next of kin would be entitled to, and would take the same under the laws of descent and distribution in vogue and in force in the State of New Jersey at the time of my death, in case I had died intestate. * * * It being my will and intention that while my wife, Elizabeth Hyde, shall have the actual custody, control and disposal during her life, of the portion of my personal estate which comes to her under this fourth paragraph of my will, still that so much thereof as shall remain at her death shall be distributed and divided equally among and between my five children. * * * And therefore I hereby order and direct that upon the death of my wife, Elizabeth Hyde, all that part then remaining of said personal property which came to her under the terms of said fourth paragraph, shall be divided and distributed, share and share alike, among my said five children.”
    The question to be determined is whether testator’s widow, under these provisions of his will, took a life estate only in the property given her, or whether she took the same absolutely.
    Under the law in force at the time of testator’s death, in June, 1901, the widow, if he had died intestate, would have been entitled to her dower in any real estate of which he died seized {Comp. Stai. p. 2048), and also to one-third of his personal estate that was subject to distribution. Comp. Stat. p. 3874 § 169. These were the portions of his estate which testator by the fourth paragraph of his will directed his widow should take after the trustees had' “apportioned, divided and distributed the residue of his estate among the widow and children.”
    From this language it would appear that testator intended Mrs. Hyde should have her dower in the realty and an absolute one-third interest in the residue of his personal property, and such would be the effect unless testator, by provisions in this or other paragraphs of his will, limited in any way this gift to his widow. Complainants contend .that this limitation is imposed by the later clauses in the fourth paragraph, in which testator declares it to be his
    “will and intention that while my wife, Elizabeth Hyde, shall have the actual custody, control and disposal during her life of the portion of my personal estate which comes to her under this fourth paragraph of my will, still that so much thereof as shall remain at her death shall be distributed and divided equally among and between my five children.”.
    And .complainants also contend that a like limitation was imposed by the concluding provision of this fourth paragraph, wherein' testator directs that on the death oE his wife all that part then remaining of the personal property which came to her under this paragraph of his will should be divided equally among his children.
    It is clear, from the language quoted, that testator intended his widow to receive those portions of his estate that she would liave received had he died intestate, and that he expressly directed that she should have the actual custody, control and disposal of the same. The word “actual,” as used by testator in this connection, must be regarded as synonymous with “absolute,” as no restraint is placed upon the use or disposition she may make of the whole or any part of. the property given her. The fact that testator undertook to make a disposition of any part of this property which his widow' at her death had left unused or undisposed of, or that remained, as he expressed it, cannot be given the significance complainants claim, in view of the absolute power of disposition given the widow over the share of the estate which came to her. Having found that testator gave his widow this uncontrolled power to dispose of hex share or interest in his estate without any limitation or restraint, the determination of the question in controversy must be controlled by the principle stated by Chancellor Green in Annin's Executors v. Vandoren's Administrator, 14 N. J. Eq. 135 (at p. 146), and quoted approvingly by Mr. Justice Swayze, in delivering the opinion of the court of errors and appeals in McCloskey v. Thorpe, 74 N. J. Eq. 413, that—
    “The cases rest upon the principle that if the testator, either expressly or by implication, manifests an intent to vest in the first legatee the uncontrolled power of disposing of the property, such power involves the idea of absolute ownership, and the limitation over is void, as inconsistent with the rights of the first legatees.”
    This principle was applied in Downey v. Borden, 36 N. J. Law 460, and in other cases cited in the opinion of Mr. Justice Swayze, and it has been held that this rule of construction is applicaole to bequests of personalty as well as to devises of land. Pratt v. Douglas, 38 N. J. Eq. 516 (at p. 533).

    A decree will therefore be advised that Mrs. Hyde’s share of the testator’s estate was given to her absolutely and not for life.

      Messrs. Colby, Whiling & Moore, for the appellants.

      Mr. Jerome T. Congleton, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Foster.

For affirmance — -The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Gardner — 13.

For reversal — None.


text:
    Theodore J. Lapres, complainant-appellant, v. Sarah H. Doughty et al., defendants-respondents.
    [Decided October 11th, 1917.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, who filed the following opinion:
    Complainant is grantee of Frederick Hemsley of certain land at Atlantic City, and has filed a bill to quiet title thereto by reason of claims made by the several defendants that complainant’s title to a portion of the land so purchased is subject and subservient to the operation of certain restrictive building covenants impressed thereon by Hemsley in behalf of defendants and ivhieh covenants defendants claim to be entitled to enforce. Defendants have ansAvered, and by their ansAver assert the lights in the land suggested by the bill, and by Avay of counter-claim pray that a part of the land may be decreed "to be subject to the lien and encumbrances created by -said covenants, restrictions and conditions.”

      The evidence discloses that on and prior to May 1st, 1897, Hemsley was the owner of a tract of land westerly of the improved part of Atlantic City which extended across the island from the thoroughfare on the northerly side thereof to the exterior line established by the riparian commissioners in the Atlantic ocean as its southerly boundary. On May 1st, 1897, a majo of the land was filed by Iiemsley in the county clerk’s office of Atlantic county. On that map the land is delineated in streets and lots, and each, lot is numbered. The part of the tract now in controversy is the territory embraced within the boundaries of two of the most southerly or oceanward lots delineated on the map; these lots are respectively numbered on the map lots 130 and 131, and together extend from Stenton Place to Iowa avenue.
    The map discloses, as its most southerly object, the words “Atlantic Ocean.” Adjacent to and northerly of these words a boardwalk is disclosed running easterly and westerly. About fifty feet northerly of the boardwalk there is delineated a waving line extending easterly and westerly across the map, which line is obviously designed to represent high-water mark. Coincident with this line and extending between Stenton Place and Iowa avenue — two streets, running northerly and southerly on the map —there is delineated on the map a double line, which is shown by the evidence to represent a bulkhead which had been erected prior to the date the map was filed. No numbered lots are disclosed on the map oceanward of the high-water mark and bulkhead. Adjacent to the bulkhead and northerly thereof and extending from Stenton Place to Iowa avenue the map delineates an alley. Adjacent to that alley and northerly thereof are the two lots now in controversy. Lot 131 extends northerly from the alley along Stenton Place ninety feet; lot 130 is adjacent to and easterly of lot 131, and extends northerly from the alley ninety feet along Iowa avenue. The two lots together embrace all the territory between Stenton Place and Iowa avenue and extend northerly from the alley ninety feet. Northerly of these two lots are two lots of the same size which are respectively numbered on the map 122 and 123; these two lots in like manner together ■extend from Stenton Place to Iowa- avenue. Pacific avenue crosses the tract in an easterly and westerly direction four hundred and sixty feet northerly of the bulkhead shown on the map.
    The evidence fully discloses that this map was filed by Hemsley in furtherance of a general improvement or development scheme which he had determined upon, which scheme included a plan to fasten on the several lots certain restrictions relating to their use. To that end and for that .purpose Hemsley thereafter inserted in all conveyances made by him certain restrictive covenants touching the use of the lots, and all, or nearly all, of the lots have since been conveyed by him by conveyances containing these covenants, and up to this time these restrictive covenants appear to have been uniformly observed. It is to quiet the title of lots 130 and 131 against the claim that those lots are held by complainant subject to the restrictive covenants that the present bill has been filed.
    The uniform covenants which have been inserted in all deeds are nine in number. The first covenant restricts the location of buildings to be erected on the several lots, but provides for buildings oceanward of Pacific avenue to be located a greater distance from the streets than for buildings landward of Pacific avenue. \Touching lots lying ocetoward of Pacific avenue the provision is:
    “All lots lying on Pacific avenue or lots between Pacific avenue and the Ocean bulkhead now erected, or that may hereafter be erected, on said property, on any of which lots no part of any building shall at any time be erected within eighteen feet of the front property line of any street or avenue bounding- said- lot or lots, nor within eight feet of the side dividing lines of said lot or lots, nor within three feet of the rear dividing line; excepting, however, the porch or front veranda of said building, which may 'be erected not nearer than eight feet of the front property line of any street or avenue bounding said lot or lots, and bay windows may be added to sides and front of said building, but shall not extend more than two feet from the main body thereof.”
    The second and third covenants fix the minimum cost of any building to be erected on any lot and restrict foundations and the height of porches.
    The fourth covenant forbids the erection of any building except private dwellings on an3' lot, and the fifth covenant excepts from the operation of all the preceding covenants lots on Atlantic avenue and northward thereof.
    The sixth, sevehth and eighth covenants relate to nuisances and other undesirable uses of buildings which are forbidden in certain locations.
    The ninth covenant, which in connection with the part of the first covenant above quoted occasions this controvers3, is as follows:
    “It is expressly agreed aud‘ covenanted that the Beach front as laid out on said filed map between the bulkhead now existing on said premises and the Atlantic ocean, or between any bulkhead that may hereafter be erected on said premises and the Atlantic ocean, shall remain free, clear and unencumbered from and by any restrictions contained in above agreement, the said Frederick Hemsley reserving to himself, his heirs and assigns, the use and enjoyment of said beach front free from all covenants and restrictions.”
    Then follows, as a part of the ninth covenant, statements that the restrictions and reservations are placed on the lots as a part of a general plan of the owner to enhance the value b3^ beautif3ring and making more healthful the occupancy of the land, and that the restrictions are so created as a part consideration for the purchase of the lots and that each, and every purchaser shall' abide by the covenants and be entitled to enforce them against am? person violating them and that they are made for the mutual benefit of all purchasers, and that the grantor, his heirs and assigns will' insert in and make part of each and every deed of conveyance by him or them of his or their remaining restricted property like covenants, conditions and restrictions; and that the restrictions shall attach to and run with the land, they being assumed by the purchasers in part consideration of the purchase price, and that it shall be lawful for Hemsley or his heirs or assigns and for any owner of any lot to institute and prosecute any proceedings in law or in equity for damages of or injunctions against persons violating or threatening to violate any of the covenants or restrictions.
    The evidence disclosed that prior to the time the map. was filed a bulkhead had been erected at the place designated on the map, and at the time the map was filed it had been partially destroyed by a storm.
    Conveyances of lots were thereafter made by Hemsley by reference to the filed map^ and in the year 1898 nearly all of the lots had been sold, but Hemsley then still owned not only lots 130 and 131, now in controvers3r, but also the two adjoining lots numbered 122 and 123. In that year- (1898) a new bulkhead was erected by. Hemsley extending from Stenton Place to Iowa avenue, on the line which separates lots 130 and 131 from lots 122 and 123. April 27th, 1909, a new map was filed by Hemsley, in Atlantic county clerk’s office, on which map' the new bulkhead was delineated, and no lots or alleys were shown oceanward thereof,’ the intervening space being left blank on the new map. October 25th, 1909, an ordinance was passed by the city council of Atlantic City vacating the alley shown on the first map as adjacent to, and landward of, the bulkhead shown on that map. November 6th, 1909, a deed of conveyance was executed by Hemsley to complainant herein for the land lying between the new bulkhead and the riparian commissioners’ exterior line in the ocean. The deed from Hemsley to complainant contains the same covenants that all former deeds from Hemsley had contained.
    Complainant now claims that by reason of the fact that the restrictions here in question are imposed only on the lots lying between Pacific avenue and the “ocean bulkhead now erected or that may hereafter be erected on said property,” as contained in the first covenant, and by reason of the additional provision contained in the ninth covenant
    “that the beach front as laid out on said filed map between the bulkhead now existing on said premises and the Atlantic ocean, or between any bulkhead that may be hereafter erected on said premises and the Atlantic ocean, shall remain free, clear and unencumbered from and by any re-' strictions contained in above agreement, the said Frederick I-Iemsley reserving to himself, his-heirs and assigns, the use and enjoyment of said beach front free from all covenants and restrictions,”
    lots 130 and 131, which now lie wholly outside or oceanward of the present bulkhead, are free from the operation of the restrictive covenants.

      I am unable to adopt the view which has been suggested in behalf of defendants that the language contained in these covenants relating to a possible future bulkhead has reference alone to a future bulkhead located on the site of the old one or ocean-ward thereof. These covenants, to be accurately understood, must be not only considered in their entirety, but also in connection with their obvious purpose as disclosed by the circumstances surrounding their adoption; when so "considered, I think their meaning, force and application clear and unmistakable. At the time these, covenants were adopted the old bulkhead had been partially destroyed by the ocean, and the fact that there was then an apparent and well-known possible necessity of the removal of the bulkhead landward by reason of the future encroachment of the ocean must be accepted as a fact; in like manner it cannot be doubted that the possibility of the recession of the ocean was equally well known. Nor can the well-known office or purpose of bulkheads on the ocean front be disregarded; they are to affqrd protection from high tides and storms and mark the line to which the property landward is to be filled in and built upon with supposed safety. It will also be observed that these covenants provided that private dwellings only should be erected on lots between Pacific avenue and the bulkhead then existing or thereafter to be erected. The land oceanward of the bulkhead then existing or thereafter to-be constructed is referred to in the ninth covenant as “beach front;” it is there declared that Hemsley reserves to himself the “said beach front free from all covenants and restrictions.” The improvement enterprise thus clearly and unmistakably anticipated and depicted by the general plan as disclosed by the covenant in their entirety was a tract of land on which attractive residences only should be erected extending territorially from Pacific avenue to an “ocean bulkhead,” and the land next oceanward of the bulkhead contemplated as “beach front” which should remain free from the restrictions. In such an enterprise, contemplating an 'improved residential section extending to an ocean bulkhead and an unrestricted beach front oceanward thereof, and general reference to a possible change of location of the bulkhead landward, could only be understood by purchasers of the lots as changes in location made necessaiy for the preservation of the general improvement scheme as distinguished from changes of location, not rendered necessary by the ocean’s encroachment, but made at the caprice of Hemsley for the purpose of removing restrictions from lots otherwise restricted. A mental photograph of the general improvement scheme as depicted by a consideration of the covenants in their entirety is unchanged and wholly unaffected by a removal landward of the bulkhead when such removal is rendered neeessaiy by the encroachment of the ocean, for the original map discloses building lots extending to a bulkhead located at a place which is delineated on the map as high-water mark and discloses an open beach front extending oceanward thereof. The spirit of the -whole enterprise clearly contemplates a continuance of those conditions and renders it impossible for Hemsley to release the front lots from the restrictions by an arbitrary removal of. the bulkhead location landward without an accompanying necessity for such removal.
    The evidence discloses the existence of no such necessity, but, on the contrary, discloses that when the bulkhead location was changed by Hemsley the ocean had in fact' receded. The testimony further discloses that the new bulkhead was erected in 1908; that the new map depicting the new bulkhead was filed in April, 1909; that the alley was vacated by ordinance passed in October, 1909, and the deed to complainant made in November, 1909. These sequential events, when considered in connection with the fact that the ocean had been gradually receding for many years prior, strongly suggest that the change of location of the bulkhead may have been for the defined purpose of relieving the lots from the restrictions; but whether for that purpose or not, the evidence clearly fails to disclose that the change of location was based on any necessity for such change having arisen, and must be regarded as arbitrary and not contemplated by the covenants.
    I will advise a decree denying the relief prayed by the bill.

      Mr. Clarence L. Cole, for the appellant.

      Messrs. Grey & Archer, for the respondents.
   Per Curiam.

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

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner — 14.

For reversal — None.


text:
    Margaret Walsh, complainant-respondent, v. John E. Walsh, defendant-appellant.
    [Argued June 20th, 1917.
    Decided November 19th, 1917.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, who filed the following opinion:
    The evidence in this suit fully establishes the fact that defendant’s conduct toward his wife has been such as to deny to him the right to now require her to share his home.'
    In this state to justify a wife in leaving her husband’s home or in refusing to share the home of his selection on account of his cruelty, physical violence need not be shown, but such conduct of the husband must be shown as will reasonably convince the court that at or prior to the time of their separation her life or health Avas in danger, or that her life was by his conduct rendered one of siieh extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife; or that the conduct of the husband, if continued, would have brought about those conditions. Unless complainants and the several children of the marriage who have testified in her behalf have willfully and deliberately testified to falsehoods touching defendant’s conduct the very conditions above suggested existed in defendant’s home at the time of the separation. I am unable to doubt the' truth of their statements and am equally unable to believe the denials of defendant.
    A review of the testimony seems unnecessary. Much of defendant’s misconduct ma.y be attributed to the influence of alcohol and his dissatisfaction with some of his children and their presence in his home; but that fact affords no justification for his misconduct. I am convinced that the children fully believed that their presence in the home was necessary for their mother’s safety, and I share with them that belief.
    It follows that an order must be made compelling defendant to contribute to complainant’s support.
    In making an order of that nature T believe it to be the duty of a court to carefully limit the order to the demands of necessity as discerned by the condition and station in life of complainant and the ability of defendant to pay. An order for an amount calculated to render separation attractive to complainant is, in my judgment, unwarranted by a statute that favors cohabitation and contemplates only suitable support and maintenance during the period of "separation. Complainant has some means of her own; defendant’s income is limited. At this time complainant is occupying a property owned by defendant and is paying no rent. 1 will advise an order for the payment of $10 per week. Tn the event of complainant being denied the occupancy of the property where she now lives the amount may be suitably increased. Complainant’s solicitor may be allowed a counsel fee of $100.

      Mr. Linton Satlerthwaite (Mr. John T. Van Cleef, on the brief), for the appellant.

      Mr. Peter Backes, for the respondent.
   Per Curiam.

This is a suit by a wife for maintenance under the statute. The vice-chancellor advised a decree for complainant. The case turns on findings of fact alone, and after a full examination of tlie evidence, we conclude that it is adequate to support the de-' cree made, which will therefore be affirmed.

For affirmance — The Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Williams — 10.

For affirmance — None.


text:
    American Surety Company, appellant, v. William F. Conway et al., respondents.
    [Decided October 11th, 1917.]
    * On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, who filed the following opinion:
    This is a creditor’s bill. The pertinent facts axe undisputed. James Conway was a contractor. He became interested in a contract made with the town of Wakefield by the firm of Minaban & Costa, and lie joined in a bond of indemnity given to the complainant, the American Surety Company, which had guaranteed the proper performance of the work. The contractors defaulted ; the town sued in the Massachusetts courts and recovered judgment. Thereupon the complainant paid the amount recovered ($45,439.11) and sued Conway, on the indemnity bond, in the supreme court of this state. Conway died pending suit and judgment was recovered against his administratrix for $56,-133.75 damages and $296.73 costs. This judgment was affirmed in the court of errors.

      The indemnity bond was- executed on June 26th, 1901. The notification to discontinue work was given to the contractors by the town of Wakefield on January 13th, 1902. Conway conveyed to his sister, the defendant, Annie L. Conway, the first and eleventh tracts mentioned in the bill on January 28th, 1902. On the same day he conveyed the second and third tracts therein mentioned to one Dolan; the fourth tract to one of his daughters, and the fifth to another. On January 22cl he conveyed the sixth, seventh, eighth, ninth and tenth tracts to his son, William E. Conway. By a series of conveyances made subsequently, William became the holder of the legal title to all the lots, except the two conveyed to Annie. I need not particularize these conveyances, for it was admitted that the conveyances of the various lots, while in the hands of William, were fraudulent and void as against the creditors of James Conway. As to Annie’s lots it is said that they were founded upon valuable consideration.
    I will first consider the lots that William held. The defence is that they are now held by William’s wife, Isabelle, who became a bona fide purchaser of them for value without notice.
    On this branch of the case there is little or no dispute about the facts. It is rather a question of the proper inference to be drawn from them. William met Isabelle McGrath for the first time at Atlantic City in 1907. He was a member of .the bar, having been graduated from the Yale Law School in 1900, and having been admitted to practice here in 1901. She was a dressmaker in Brooklyn, about twenty-eight years old when she first met him, with, a business, the annual profit of which, just before her marriage in July, 1912, was, she says, from $2,500 to $3,000. William seems to have been continuously attentive to her from the time he first met her until November, 1911, when he proposed marriage ana was refused. In Januarjq 1912, he proposed again and was again refused. She says: “I laughed at him and I said no, I wouldn’t. I didn’t want to get married, because I had a good business and I was making good money.” “I can do just as I please with my money.” After that she did not see him so often until June, 1912. On June 9th William met her in New York and asked her if she would not go to Newark with him. She says that she had never been in Newark before, except to pass through it from one depot to another, and that it being “kind of nice to go to a place you had never seen,” she accepted the invitation. Her story told in her own words is as follows:
    “When we got to Newark, he took me around and showed me the different properties he owned. After he showed' me all the properties, he asked me if I would marry him, if he would give' me that property, and I said, will you give me all that you showed me, and he said yes, 1 will give you all that property; and. then I asked Mr. Conway what the income .of it was and he told me at the time, and I said, well, I will think it over, and Mr. Conway said, as near as 1 remember, ‘Well, if you make up your mind to accept me,'you know we have to have this in legal form or writing,’ or something like that; and he said, of course we have to have a lawyer, and I said, well, anyone you want to suggest; he said, well, Mr. Darrow ; I know Mr. Darrow and you know Mr. Darrow * * * I said, well, that is agreeable to me, and he said, well, jmi think it over.”
    In order that the full significance of what occurred a few days later may be understood, it will be well to consider the then situation. The judgment was obtained by the town of Wakefield in the Massachusetts court in June, 1911. Suit on the bond was commenced against James Conway in the supreme court of this state in August of that year, but not tried until November of the following yeaiy There was first a verdict for defendant which was set aside. A new trial had, in April, 1914, resulted in the judgment upon which the present bill was filed. In April or May, 1912, William had consulted his friend Darrow, whom he had met at Yale as a fellow law student and who was then practicing law in New York City. He wanted his opinion as to whether marriage was a consideration valuable enough to be good against his father’s creditors. After examining the question, Darrow gave it as his opinion that marriage would be held to be a valuable consideration if the grantee stood as a bona fide purchaser without notice. A few weeks after getting this opinion he took Miss McGrath to Newark on the trip described. Within a day or two Miss McGrath saw Darrow and instructed him to draw up a marriage agreement. This he did. By its terms William was to convey the property and they were to be married on or before the 1st day of July-following. On July 1st they were married, very quietly, in a Newark church. Before the ceremony was performed William handed his fiancee a deed conveying the property. The] made a wedding trip of three weeks and then returned to Newark and took up their residence in his father’s home. It is argued that William’s wife did not take immediate possession of all the property, but I think the evidence shows tliat her conduct was such as to indicate that she regarded the property as hers and- asserted dominion over it in a perfectly natural and becoming was. She has always claimed to he the owner of it, and as far as appears, no member of the household has failed to recognize her as such or claimed any beneficial interest in it. ,
    Now, William and Darrow both admit that they knew that the transfer was in fraud of complainant’s right, if he had a right, which was then being contested. William’s purpose'in offering to convey was twofold. He wanted to protect the property against the possible judgment, and he wanted to offer to Miss Mc-Grath a sufficient inducement to marry him. According to his own story he only held the property in trust for his father, and yet he says that he did not inform him of his proposed action. He was, from a moral standpoint, guilty of a double wrong. The wrong he’did liis father ¡was moral and not legal, for his father had no legal redress against him and seems in point of fact cither to have acquiesced in or to have approved of Ms son’s conduct. He was old and dying, and felt, no doubt, that as far as he was concerned, the transfer would, from a practical standpoint, make no difference to him.
    Tf the transfer could he avoided for the fraud of the grantor alone, of course, it would fall; but the law is that the grantee, for valuable consideration, must concur in or have notice of it if such is to be the result. Tantum v. Green, 21 N. J. Eq. 304. That marriage is a valuable consideration is undisputable. Prewit v. Wilson, 103 U. P. 22; and so the inquiry is narrowed down to the question of notice. Isabelle says that she did not have notice, and in this she is corroborated by William and Darrow. Their testimony accords with the probabilities. It is not likely tliat knowing, as they did, that notice would defeat the very object aimed at, they would have given notice. It is virtually conceded that she had no actual notice, hut, it is said, she had constructive notice, in that the situation was such as to have put her upon inquiry. This is the only debatable question in the case.
    Now, it seems to me that the situation was not such as to put her upon inquiry. We must view it from her standpoint— from the standpoint of what she herself knew. She had known William for five years. His attention during all that time had been such that when in November, 1911, he first asked her to marry him, she must have thought that he had a sincere affection for her. She twice refused him on the ground that while she liked him she did not like him well enough to give up hex business and her independence. Living in a different city she had never met any member of his family. She knew nothing about their pecuniary circumstances. She knew only that William was a lawyer of eleven years’ standing, and, as it is phrased in the proofs, “a libera] spender.” The property, assessed at $64,000, had, most of it, stood in his name undisturbed for ten years. She knew nothing about the circumstances under which he had acquired it. Knowing this, and nothing more, when William showed her the property and told her that it was his, and that it brought in a net rental of two hundred or two hundred and fifty dollars a month — about the sum she was making in her business —she no doubt reasoned that he was giving her little more than an equivalent for what she was giving up; that the offer was a practical demonstration of his genuine affection and the very sacrifice that was her due; and that,, in any event, they would enjoy the property together during their joint lives.
    It is said that her conduct was mercenary, but if it was, that does not help- the argument. It must be remembered, too, that she was a business woman of over sixteen, years’ experience in making bargains, and knew perhaps better than most girls the value of a business arrangement. Looking at the circumstances from her standpoint, and with her limited information, I cannot say that there was anything in what she knew to put her upon inquiry.
    Then it is said that the law is that if a man transfers to a woman all his property in consideration of marriage, the transaction is per se fraudulent. The authorities are somewhat conflicting on this question, but they are inapplicable, for the reason that William did not give up all. Whether she thought he was giving up all is a different question — a question to which these authorities do not apply.
    It is further argued that if Isabelle had no notice of the intended fraud, Darrow, her legal adviser, had, and she is affected with his knowledge. The ease of Vulcan Detinning Co. v. American Can Co., 72 N. J. Eq. 387, has settled the law on this point. The rule, as-there established, is that the knowledge of the agent is chargeable upon his principal, whenever the principal, if acting for himself, would have received notice of the matters known to the agent. Under this rule, Isabelle is not aifcc-ted with notice. Darrow had acquired his knowledge weeks, if not months, before he saw Miss McGrath, while acting only for William. It is certain, as I have already said, that whether Miss McGrath had acted for herself or through some agent other than Darrow, the facts that- constituted the notice would not have been communicated, and the case does not, as complainant contends, come within the modification of the rule suggested by Mr. Justice Dixon in the Sooy Case, 41 W. J. Law 395. William did not refrain from giving notice because he knew that Darrow was aware of the facts and he did not deal with Darrow on the basis of those facts. Paraphrasing the words of Mr. Justice Dixon, it would be unfair and unreasonable to assume that express notice would have been given if Darrow liad not, to his (William’s) knowledge, been cognizant of the. situation.
    It is further insisted that Miss McGrath had constructive notice of what the tenants would have told her, liad she made the inquiry. For the vacant lots there were no tenants; in the case of the lots built upon, had the inquiry extended to Garrabrant, the agent who collected the rents, she would have learned that they were being paid to James Conway. That would have indicated that James had some interest and that she would take subject thereto. The doctrine of notice in cases of this class is intended to protect those in possession, not those who may, by possibility, have some adverse claim against the possessors. The knowledge to be imputed is that which would have been communicated, not that which would have been withheld. It would cover facts admitted, not facts denied. Had the tenants or Garrabrant been interrogated, they would have said that the rents were being paid to James Conway. Had James been interrogated, he would have said that William was living with him and that he had given him a deed of the property. It would be carrying the doctrine of imputed knowledge to a fantastic extreme to hold that such replies as these, or similar ones, coming from an old man on the brink of the grave, would, or ought to, have suggested to Miss. McGrath, had she made the inquiry, that the conveyances were intended as a fraudulent contrivance to protect the property against James’ creditors, and not as a family settlement. Wood v. Price, 79 N. J. Eq. 621, contains a discussion of the question whether possession by a tenant is constructive notice not only of the tenant’s rights but of the landlord’s. The court of errors and appeals decides that it is notice of both. Mr. Justice Yoorhees says: “The purchaser is therefore'chargeable with notice of the facts which he would have learned had he pursued such inquiry, not only as to the tenant’s title, but as to all the facts and circumstances, which the tenant knew concerning Hie title.” This decision is far from sustaining the contention that an inquiry as to the tenants’ knowledge should have been followed by a further inquiry as to the landlord’s (assuming James Conway to have been the landlord, which, as between himself and his son, he was not), whose statement, on inquiry, if he affirmed title in his son, was to he disbelieved. The complainant cannot, therefore, succeed on the theory of imputed knowledge.
    The conveyance to Annie L. Conway, sister of James, was plainly fraudulent as against creditors. Although in court she failed to testify, the only evidence given on her behalf being that, of William. He says that the consideration for the deeds made to her was that James promised her that if she undertook to support and take care of. their mother, he would compensate her either in cash or hv conveyance of property. The promise is said to have been made when the mother came to live at her son’s house in 1899. Before that she and Annie had been living with Mrs. Thompson, William’s aunt. After they came they occupied a part of the upper floor. They had their meals apart from the rest of the. family. They were clothed and fed partly by the mother’s money and partly by Annie’s. How much each contributed does not appear. The mother died in December, 1900, so that Annie’s service, whatever it was, covered only a year and an indefinite number of months. They paid no rent. The service was presumably one that a daughter would render to her mother out of affection. Annie was able to tell what it consisted of, but did not. In fact, for aught that appears, the services may have been mutual and the mother may have contributed in money as much or more than Annie did. In the case of Demarest v. Terhune, 18 N. J. Eq. 532, it was held that where the transfer, injurious to the creditor, was not such; as the court would set aside in tolo (and this is the most favorable view that can be taken of Annie’s cause), it would be permitted to stand only as security for the amount proved to be really due. In the present case it does not appear that at the time the deeds were given any effort was made to ascertain the amount; and no proof of the kind of service rendered or its value was given at the trial, binder these circumstances, the‘conveyances cannot stand as against complainant’s judgment.

      Messrs. Pitney, Hardin & Skinner, for the appellant.

      Messrs. McCarter & English, for the respondents.
   Per Curiam.

The decree ajipealed from will he affirmed, for the reasons stated in the opinion filed in the*court below by Vicc-C-hancellor Stevens.

For affirmance — The Chief-Justice, Swayze, Trenchard, Bergen, Minturn, Kalisch, Black. White, Williams, Gardner — 10.

For reversal — Parker—1.


text:
    Sterling Leather Works, complainant, v. Frank Schwarzwaelder, defendant.
    [Decided October 11th, 1917.]
    Appeal of the Libert)'' Trust Company.
    On appeal from a decree of the court of chancery advised by AOce-Chancellor Lane, who filed the following opinion:
    This is an interpleader suit brought by the Sterling Leather Works, which was liable upon two mortgages, one made by Franklin L. Meyer, and the other by Frederick F. Meyer and wife, each to Mary P. Butler, each registered in the register’s office of Essex county upon the 13th day of May, 1897. The mortgages secured one debt, evidenced by a bond made by Frederick F. Meyer and Franklin L. Meyer to Mary P. Butler, dated May 1st, 1897, for the sum of $1,400. The money due has been paid in court and the dispute is as to the distribution of this fund.
    The contentions of the parties may be briefly stated: The Liberty Trust Company claims the fund by virtue of its possession of the bonds and mlortgages from the 2d .oir 3d day of September, 1913, down to the time of the filing of the bill. It claims to have obtained title through a series of assignments, the first purporting to be made by AValter S. Baker and Minnie A. Baker, respectively, executor and executrix of the estate of Mary P. Butler, deceased, to William IT. Daly, dated December 20th, 1905, and recorded in the register’s office of Essex county upon the 2d day of September, 1913, the next purporting to have been made by William II. Daly to George W. Clark, dated the 1st day of August, 1913, and recorded on the 2d day of September, 1913, and next purporting to be made by George W. Clark to Mabel Daly, dated the 1st day of August, 1913, and recorded on the 2d clay of September, 1913, the next purporting to be made by Mabel Daly to the Liberty Trust Company, dated the loth day of August, 1913, and recorded on the 3d day of September, 1913. The originals of the first three assignments have been lost or destroyed; they never were in the possession of the bank. The original assignment from Mabel Daly to the bank, and the original bond and the mortgages were in the possession of the bank from on or about the 3d day of September, 1913, down to the time of the filing of the bill of complaint, and were taken by the bank as security for a loan made by the bank for the sum of $2,-500, ostensibly to Mabel Daly on her note, but really for the benefit of Crocker, who was at the time the chairman of the executive committee of the bank and apparently its controlling influence. There is sufficient due upon the Daly loan to exhaust the fund. Each of the assignments purported to be witnessed and acknowledged by and before Crocker. Schwarzwaelder, as sole acting executor of the estate of Ronan, claims the fund on the groiuid that on or about December, 1905, the bonds and mortgages were purchased by Ronan for full consideration from the Butler executor and executrix to Ronan, that Crocker acted as attorney for Ronan, and that the assignment, together with the bonds and mortgages, was left in his possession until the death of Ronan in February, 1907; that upon his death and probate of his will, Schwarzwaelder and Crocker qualified as executors; that the assignment and the bonds and mortgages were still left with Crocker for safekeeping; that interest during the life of Ronan Avas paid or credited to him, and that after his death interest was paid to his estate regularly down to the 1st of December, 191-1-, at about which time Crocker disappeared.
    The assignment, if it existed, from the Baker estate to Ronan has been lost or destroyed. Crocker Avas removed shortly after his disappearance as executor, and Schwarzwaelder has been since acting as sole executor.
    The case has given me considerable concern. Any decree Avhich can be made will result in a loss to one of two innocent parties. Counsel on each side has diligently endeavored to supply the court with all the information that it is possible to obtain. Great difficulty arises because of the disappearance of Crocker and the death or removal of the representatives of the Butler estate and the consequent inability to obtain any evidence from these sources. The case was fully argued and elaborately briefed. Because of the conclusion to which. I have arrived, it will, however, he unnecessary to refer in detail to the numerous cases cited.
    I find that the assignment from the Butler estate to Bonan did, in fact, exist, and that the paper purporting to be an assignment from the Butler estate to Daly was a forgery. •
    Schwarzwaelder testifies that he participated in the negotiations which resulted in the purchase by Bonan of the bonds and mortgages. Bonan was interested in the Sterling Leather Works, and the reason he took over the bonds and mortgages was that the Butler estate demanded payment which the Sterling Leather Works at that time cordel not make. He says that about the time of this transaction, which must have been in the latter part of 1905, he saw the assignment at Crocker’s office; that after the death of Bonan he saw the assignment and the bonds and mortgages in Crocker’s possession when they were making an inventory of the estate. The inventory filed by Crocker and Schwarzwaelder, as executors, dated May 16th, 1907, and filed in the surrogate’s office of Essex county sets out as one of the assets the Meyer mortgage of $1,400; the final account of the Baker estate, filed in the same office, shows a charge to them as follows: “ J une 1st, 1905, to interest for the Frederick F. Meyer mortgage, interest due May 1st, $42; December 21st, 1905, interest due on mortgage of Frederick F. Meyer and wife, May 1st to date, $53.43.” This demonstrates that it was on the 21st day of December, 1905, that the Butler estate parted with the bonds and mortgages. Schwarzwaelder says that an account of the Bonan estate was prepared in which the interest on the Meyer mortgage was credited and that he was told by Crocker that it had been filed, whereas, in fact, it never was; that the assignment at the time lie saw it in Crocker’s office, purported to he recorded in the register’s office, and bore the register’s stamp, whereas, in fact, it never was recorded.
    Unless I disbelieve, and I find no occasion to do so, the tcslimony.of Schwarzwaelder, I must find that there was in existence about December, 1905, what purported at least to ho an assignmcnt from tlie Butler estate to Rod an, and that such assignment remained in existence in the custody of Crocker for some time after the death of Ronan, in 1907.
    When there is considered the circumstances with respect to the Daly and Clark assignments, it is clear that the Butler assignment to Ronan was genuine. There is no doubt but that Ronan, at or about December, 1905, actually bought for full consideration the bonds and mortgages, and that the bonds and mortgages were in Crocker’s possession, as attorney for Ronan; that Crocker recognized the ownership of Ronan and the Ronan estate up to at least the time that the last check for interest was endorsed by him, “Estate of William Ronan, Roland D. Crocker, executor.” This check is dated May 15th, 1911. William H. Daly, George W. Clark and Mabel Daly were all examined. Daly testifies distinctly that he had no knowledge of the transaction which apparently resulted in an assignment from the Butler estate to him, and that it is impossible that a bona fide purchase of these mortgages could have been made for his account by Crocker at any time prior to 1909. Clark testifies that he has no knowledge of the transaction. I conclude that the assignments made from Daly to' Clark, and from Clark to Mabel Daly, whether actually signed by Daly or Clark or not, were for the sole purpose of putting the apparent title in Mabel Daly so that Crocker might use them as collateral to the proposed Mabel Daly loan from the Liberty Trust Company. It is significant that all three of these purported assignments were recorded upon the same day, at the same hour and practically simultaneous with the loan to Mabel Daly; further, that the original assignments were never exhibited to or returned to the bank, whereas the undoubtedly genuine assignment, made.from Mabel Daly to the bank and recorded upon September 3d, was delivered- to it.
    ■I conclude that the alleged transaction by which Daly .apparently got title from the Butler estate could not have taken place, if legitimate, prior to 1909. If it took place after 1909, the paper could not have been signed by the representatives of the Butler estate. Unless the representatives of the Butler estate signed two assignments, one to Ronan and the other to Daly, tiras committing a fraud, one or the other is a forgery. There-is no reason for doubting the integrity of the representatives of the Butler estate. Although none of the original papers are here, all of them having been destroyed by Crocker to prevent discovery of his fraud, we have the evidence of one man that he actually saw the original Ronan assignment; there is no evidence as to anyone having actually seen the original Daly assignment. The probabilities of the case fit in with the bona fides of the Ronan assignment.
    Upon the whole ease, therefore, I find that the Ronan assignment was legitimate and that the Daly assignment was a forgery, and that it was concocted by Crocker as a part of his scheme to get from the Liberty Trust Company $2,500 upon the note of Mabel Daly.
    The claim of the Liberty Trust Company must fall unless the Ronan estate is estopped from setting up its rights. I think that it was not. Tt is true that the papers were left by Ronan in his lifetime with Crocker as his attorney, and by Schwarzwaelder thereafter as the co-executor and also the attorney of the estate. This course is not at all unusual. Leithoff v. Dennis, 98 A LI. Rep. 21(2; Brewsier v. Enlz, 97 Ail. Rep. 156; Melich v. TÁberly Trust Co., 85 N. J. Eq. 29. Crocker, prior to his departure in 191-t, was of unblemished reputation, of apparently large affairs, full financial responsibility, and was uniformly trusted. ■ There was no reason for cither Ronan or Schwarzwaelder to assume that he would commit a fraud. It. was not incumbent upon either Ronan or Schwarzwaelder to themselves examine the record to ascertain whether or not the Ronan assignment had been recorded. If Crocker has assumed to act as an executor of the Ronan estate, and should have assumed either by an assignment purporting to be executed by the Ronan estate, or by manual delivery of the bonds and mortgages to transfer title to the Liberty Trust Company, a question might have arisen which I am not called upon to determine.
    If Schwarzwaelder, as executor, was negligent, so was the bank. It depended upon Crocker. It knew that Crocker was the active party in applying for the Mabel Daly loan. It made no investigation as to the validity of the bonds and mortgages — required no estoppel agreement from the mortgagor. If it had it would have discovered tlie fraud. It did not require that the original assignment should be exhibited to it; after their record it did not require their delivery to it. It depended simply and-solely upon the report of its counsel who was associated with Crocker as to the record. That record discloses that these three assignments, one purporting- to be made as far back as 1905, and two purporting' to be made about the same date in 1913, were all recorded upon the same date in 1913, palpably, for the purpose of assisting in securing the loan. While the knowledge of Crocker is not to be imputed to the bank, under the cases, yet the bank can hardly complain that Schwarzwaelder and Ronan did only what it itself did, so far as trusting Crocker was concerned.
    I will advise a decree awarding the fund in dispute to the Ronan estate.

      Mr. Archibald F. Slingerland, for the complainant.

      Messrs. Lintott, Kahrs & Young, for the defendant.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Lane.

For affirmance — The Chief-Justice, Garrison, Swayze, Teenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner — 14.

For reversal — None.


author: Walker, Chancellor.

text:
    Albert H. Pearson v. John Stafford.
    [Decided January 10th, 1918.]
    1. A purchaser of lands within a tract subject to restrictive c.ovenants is bound by them where he had at least constructive notice thereof.
    2. That there had been over one hundred' violations of the restrictions imposed did not defeat’the right of a lot owner to enforce them against one about to build a structure that would interfere with the lot owner’s free and unobstructed view.

      8. Where complainant’s hotel, erected' on a lot subject to a covenant against building within twenty feet of the front property line, had been erected for years, and defendant’s predecessors in title made no objection to a porch extending to the property line, and defendant himself made no objection except by way of answer in a suit 'brought to restrain him from violating the covenant, he could not be heard to object to the complainant's violation, especially when he had changed the plans of liis own building to do the same thing the complainant did in violation of the restriction.
    , On final hearing on pleadings and proofs.

      Messrs. Grey & Archer, for the complainant.

      Mr. James H. Hayes, Mr. Ulysses G. Styron and Mr. Clarence L. Cole, for the defendant.
   Walker, Chancellor.

This is a suit to enjoin defendant from violating' a building restriction. On the hearing of an application for a preliminary injunction the whole case was submitted upon affidavits and exhibits on both sides, and it was agreed by counsel for the respective parties that the cause should be submitted and decided as on final hearing. The record has been perfected by the filing of an answer and a replication to the end that-that course may be taken. I have viewed the premises in question with representatives of each side as showers.

In 1883 the Chelsea Beach Company owned a large tract of land in Atlantic City and caused it to be laid out into blocks and lots and filed a map thereof in the Atlantic county clerk’s office. This company, in making conveyances, subjected all lots to certain restrictive covenants. On August 22i, 1893, the company conveyed to Clement J. Adams the premises now owned by the complainant, who became seized thereof by deed from Yon EL Herr, July 5th, 1916, who, Herr, had become seized thereof in virtue of sundry mesne conveyances. All of the conveyances affecting the premises were subject to the covenants and restrictions referred to. Complainant alleges that upon his property there has been erected, in strict conformity to the restrictions, a hotel known as the Hotel Gladstone.

By deed dated December 2d, 1915, John Stafford, the defends ant, became seized of property facing on Brighton avenue and adjoining the complainant’s property on the south. He has also become the owner of land adjoining the premises on the north, known as lots 126 and 132 on the Hemsley plan, lying between the premises he acquired by deed of July 5th, 1916, and Stenton place, and has begun extensive excavations and work upon the land, and has laid extensive foundations thereon with the view to ('renting an apartment house or hotel of fourteen stories on the premises. At the time Stafford acquired title to his lands he had at least constructive notice of the restrictions imposed upon the entire tract, as his deed contained a covenant which put him upon inquiry, and he was, therefore, bound.

The particular covenant alleged to have been violated by the defendant in the plans, specifications and actual work, so far done upon his premises, is this: “That no building shall at any time be erected within twenty feet of the front property line of any street or avenue, except Atlantic avenue.”

The defendant did not deny the violation in fact charged against him, of the terms of the restrictive covenant, but sought to justify its violation, and the defense was that the general neighborhood scheme had been abandoned, or at least that the complainant had acquiesced in such numerous violations of it as to be estopped from objecting to the defendant’s violation, and, also, that the complainant had himself violated one of the covenants in such a way as to disentitle him to enforce any of them against the defendant.

As to the alleged abandonment of the scheme: Mr. Ashmead, a civil engineer, testified that he was acquainted with lands and premises in Atlantic City and particularly the portion formerly known as Chelsea, in which the premises in dispute are situate. He says that he has made a survey and measurement of the houses and buildings on the tract with reference to violations of the twenty-foot building restriction as to front lines, and the five-foot restriction as to side lines, the latter not being involved in this suit, and finds upwards of a hundred violations of these restrictions. It ought to be said that there are several streets or avenues crossing the section north and south and east and west. The lands oí the parties to this suit are on .Brighton avenue near the ocean.

It is to be gathered from all of the restrictive covenants that the scheme was one devised for a residential neighborhood, and had for its principal object the security of light and air and a free and unobstructed view of the sea. Complainant’s hotel is near the ocean and the building proposed to be erected by defendant would be the only one between that of the complainant and the sea. The violations of the restrictive covenants testified to by Mr. Ashmead are mostly on highways other than Brighton avenue and many of them are inconsequential, and apparently none of them deleteriouslv affect the complainant.

Vice-Chancellor Emery in Morrow v. Hasselman, 69 N. J. Eq. 612, held that immaterial violations of restrictions, not showing an intention to abandon a general plan for the improvement of a locality, are not a defense to an action by one purchaser to enforce a restrictive covenant against another.

Vice-Chancellor Bergen’s decision in Chelsea Land and Imp. Co. v. Adams, 71 N. J. Eq. 771, which was there affirmed by the court of errors and appeals on his opinion, does not operate to preclude complainant in this case from restraining the violation of the restrictive building covenant in question. In that ease, because upon this very tract there had been something like a hundred violations of the restrictions as to front and side lines, the vice-chancellor refused to enjoin the defendant from violating the covenant not to build within twenty feet of the street, but that was at the suit of the owner of the remaining lots, the successor in title to the Chelsea Beach Company, who laid them mat and imposed the restrictions. The vice-chancellor said that the complainant could not undertake to waive violations of the restrictions in so universal a manner as it had done and then undertake to enforce them against one other of their purchasers, and he significantly remarked that if the original grantor of one hundred and fifty lots, with restriction as to building lines, allows two-thirds of his grantees to violate it without protest, he cannot enforce it against a single grantee for the purpose of benefiting his remaining lands, for the grantee thus assailed is entitled to the common privileges accorded to other purchasers who were not subjected to the restriction.

Vice-Chancellor Learning, in Brigham v. H. G. Mulock Co.. 74 N. J. Eq. 287 (at p. 288), adverting to Chelsea, Land Co. v. Adams, observed that that was a case in which a town site proprietor owned property in all parts of the tract and had permitted violations of the covenant without complaint, and while that was held to operate as a bar to the right of that company to prevent further violations of the same covenant, the adjudication clearly had no application to the rights of the owner of a single lot who might not have so acquiesced; that it would scarcely be possible for any single violation of the covenants to occur without the interest of the original landowner being directly affected, but that the owner of a single lot might have no concern whatever in a violation of the covenant on a part of the tract distant from his lot. And the learned vice-chancellor further held in Brigham v. H. G. Mulock Company that any claim of bar-asserted against the rights of the owner of a single lot by reason of acquiescence-in the violation of restrictive covenants, must be measured by the relation of the asserted violation to the individual lot, citing Borlan v. Slifer, 72 N. J. Eq. 812, and Morrow v. Hasselman, supra.

In Bowen v. Smith, 76 N. J. Eq. 456, Vice-Chancellor Leaming observed (at p. 464), that the location of the violations of building restrictions referred to were given by street numbers, and while he was unable to accurately locate them, he said that they were manifestly all far from the lot of complainant and in no way affected its desirability, and he observed that such encroachments were of little interest to persons other than owners of adjacent lots. And in that case (at p. 465) he remarked that the important covenant which requires buildings to be set- back twenty feet from the front property line approaches a question of public as well as private concern that the spirit of the covenant made to preserve the health and comfort of the neighborhood should be maintained.

Mr. Ashmead also testified that the complainant’s property, known as the Hotel Gladstone, is a four-story building, and that the south end of the porch, enclosed by glass, extends over the restricted line twenty feet. It is not entirely clear exactly what is meant by this, but a view of the premises will disclose that this porch, enclosed by glass, is around'on the south side of the hotel and that it does' not extend beyond the twenty-foot front line building restriction toward Brighton avenue; and it must be meant that it extends over a side line, with reference to which the restriction is that no building shall be erected within five feet of the side lines of a lot; but, as there is an exception where a party may own two or more contiguous lots, I incline to think that this porch may be across the dividing line of two lots owned by the complainant; at least it is not made to appear that there is any encroachment upon the defendant’s adjoining lot on the south, but, if there were, that would be a question beside the issue in this case, except as to the side line of complainant’s lot; but an assertion that it is twenty feet over the restricted line is not the assertion of an encroachment upon or over a side line. Mr. Ashmead gives countenance to this view as he says in his affidavit that the five-foot side line restriction is not involved in this suit.

The defendant’s deed for the property upon which the restrictive covenant is sought to be enforced contains a covenant that the premises conveyed are subject to certain conditions, limitations and restrictions, and among them the restrictive covenants imposed by the Chelsea Beach Company in the deed to Clemen i; J. Adams, August 22cl, 1893, duly recorded, and also the restriction of the Chelsea Land and Improvement Company. While the defendant in his answer denies that the land owned by him is subject to the restrictive covenants referred to, or that the premises came to him so restricted, and avers that he owns the land without any binding covenant or restriction as to its use, nevertheless, this averment was not proved, but the proof was entirely to the contrary.

The defendant avers, and, as above indicated, asserts that the complainant’s Hotel Gladstone violates the restrictive covenant in that it is built out to the line of Brighton avenue and- not twenty feet back therefrom. It appears, however, that the hotel •proper does not encroach-upon the restricted area, but that an open two-story porch is built out from the hotel to the street line. The restrictive covenants applicable to the land in question are silent on the question of porches. On the question as to whether these very covenants were intended to apply to porches, Vice-Chancellor Learning said in Brigham v. H. G. Mulock Co., supra (at p. 290):

‘The fact that so many buildings have been erected with the main body of the building located with reference to the building line and with open porches and bay windows extending over the line measurably indicates a popular interpretation of the restriction to that effect. As is said in Morrow v. Hasselman, 69 N. J. Eq. 612, 617, if these porches have been erected under an erroneous construction of the covenant, that fact is no evidence of an abandonment of the general scheme.”

Houses and hotels have porches, and as they almost invariably'project out from the buildings it would seen? that a restrictive covenant which would prevent the erection of a building beyond a certain line back from a street, but silent as to porches, ought not to be construed to prevent the building of porches within the prohibited area, and who shall say how extensive the porches may be? Of course, if, under the guise of building a porch, an extension of the building was attempted, such, for instance, as increasing the dining-room space in an enclosed one-story porch-like addition to the building, thus making an enlargement of the dining-room proper, all enclosed as within the building, that might well be considered a breach of the covenant. Each case would necessarily depend upon its own circumstances.-

It does not appear how long the Hotel Gladstone has been erected, but its appearance indicates that it is no new building, in fact, that it has been erected for years. ■ As the defendant’s predecessors in title made no objection to the Hotel Gladstone porch as an infringement of the restrictive covenant, and as the defendant himself did not, except by way of answer in this suit brought to restrain his infraction of it, T think he cannot now be heard to object to it. Rut, more than'this: Defendant, by permission, since the hearing has filed a supplemental affidavit in which he says that he has changed his plans so that his main building will be back twenty feet from the line of Rrighton aveune and that tlie space within the twenty feet will be used for an open porch or veranda, in conformity with the sketch or plan exhibited with his affidavit. As the defendant now 'proposes to do what the complainant or his predecessor in title did with reference to the building of a porch within the restricted area between the building line and the street line of Brighton avenue, it does not now lie in the mouth of the defendant to complain of this very thing.

The complainant is entitled to an injunction to prevent the defendant from building his hotel proper beyond the restricted line of Brighton avenue, but not one commanding him to remove the foundations which he has built there, which, cannot harm the complainant and which appear to be adaptable for the support of his proposed open porch covering the restricted area. The porch may be built in accordance with the drawing submitted with the supplemental affidavit. The complainant is entitled to costs.


text:
    Thomas A. McCauley, petitioner, v. Hildegarde T. McCauley.
    [Decided January 26th, 1918.]
    1. Exceptions to a master’s report in a divorce case should not be' directed to specific findings of fact by the master, but should be directed to the single issue, i. e., whether or not the cause for divorce has been proved.
    2. Exceptions to a master’s report in a divorce case, characterizing the conduct of the master and charging him with dereliction of duty and untruthfulness, are scandalous and, apparently, a contempt of court.
    3. It is not illegal in a divorce case to subpoena the defendant to come before the master, nor is it objectionable (though unusual) for the master to take the testimony of the defendant.

      4. It appearing from the evidence in this case that the cause for divorce wus proved, the defendant is entitled to a decree nisi.

      5. That both husband and wife are extremely anxious to be divorced does not amount to collusion, defeating a divorce.
    On exceptions to master’s report.
   Walker, Chancellor.

This- is a suit for divorce ex parie. The special master has reported adversely and the petitioner excepts.

The master reports favorably on the questions of marriage and residence, hut says that the charge of willful, continued and obstinate desertion has not been fully proved, and that, therefore, the petition should be dismissed.

There are eight exceptions in all. There should be but one, and that should be to the effect that the master erred in finding as he did on the question of desertion, because lie should have found that the allegation as to willful, continued and obstinate desertion for the statutory period had been fully proved, and that the petitioner was entitled to a divorce for that cause. What the petitioner lias clone is to except to several specific findings of fact in the master’s report, some of which at least are not controlling on the question at issue. Of course, in accounting cases and the like, where there are findings as to specific items and issues, it is proper to aim an exception at each one of them that is objected to; but where there is a single issue, as here, namely, whether or not the cause for divorce has been proved, the exception should be to the general finding — all else is argument.

The eighth and last exception is, for that the master reported that he was satisfied from the testimony that the separation between the parties was more the fault of the petitioner than the defendant, and that since the separation he has not met the requirements of the law in efforts to effect a reconciliation nor shown that his shortcomings, which were the cause of the separation, have been corrected. Under this exception it is averred that the. master’s report is contrary to law and the evidence, that the petitioner has sustained the allegations of his petition and is entitled to the relief prayed, and that the master should have so reported. This last averment spells an exception to the report and is of itself sufficient.

Assuming that the separation was more the fault of the petitioner than of the defendant, that does not prevent the desertion becoming one against the will of the petitioner, and, therefore, obstinate.

The second exception is, for that the special master reported that the petitioner had resorted to the rather unusual procedure of having the defendant appear under a subpoena, and goes on to state that he subpoenaed the defendant because the special master demanded that his wife, her mother and Wife’s sister should be subpoenaed, to which he objected, as to the mother, because she was an old lady and very deaf — not stating why as to the others.

It does not appear in the' master’s report, or testimony annexed, that the master made any demand that these witnesses be subpoenaed, and, therefore, this matter is not properly before the court. I do not say that it might not be made the subject of evidence upon a rule for the taking of testimony, in analogy to a certiorari to bring up outbranches of the record in a case at law; but that is entirely unnecessary in this case, as the question simply is, does the proof attached to the master’s report require a finding that the defendant has been guilty of willful, continued and obstinate desertion for the statutory period of two years next before the filing of the petition or not? If so, then •the petitioner is entitled to a decree; if not, the petition must be dismissed.

I am minded, however, to say that while it doubtless is unusual, it is not objectionable for a petitioner to subpoena the defendant to testify in a .divorce case.

Schaab v. Schaab, 66 N. J. Eq. 334, was an ex parte case for divorce for adultery in which the court of chancery refused, a divorce and dismissed the petition and an appeal was taken. In that case the defendant gave evidence under subpoena, and the court of errors and appeals, speaking by Mr. Justice Fort, held, that while a husband or wife is not compellable in an action for divorce for adultery to give evidence for the other, except to prove the fact -of marriage, that, nevertheless, the parties may testify, and the defendant’s testimony appearing to be voluntary, was competent. It will be noticed that there is not such limitation upon the parties giving testimony in desertion cases. The master says in this report sub judice, that he stated to the defendant that it was unusual for a petitioner to subpoena a defendant and that he would not permit her to testify unless she desired to do so. She did testify, but had the master excluded her he would have erred.

The third exception is, for that the special master reported that in the defendant’s testimony she appeared not only willing, but anxious, to assume the responsibility for the separation; that she stated that she left her husband and refused to live with him, and that although he had asked her to return, under no circumstances would she take him back. The petitioner in this exception proceeds to state that this conclusion, drawn by the master, is in accord with all his actions in the case; that the master has misquoted the testimony and in every conceivable manner delayed the cause, and even when ordered by the court had failed to make his report, and that his statement that the defendant appeared anxious to assume the responsibility, is absolutely false and untrue, and that the special master must know that such statement is not true.

These statements in this pleading, characterizing the conduct of the master and charging him with dereliction of duty and untruthfulness, are scandalous, and, apparently, a contempt of court.

In the Matter of Lechmere Charlton, 2 M. & C. 317, a barrister addressed to the master of the rolls a letter relating to a matter before him, which contained scandalous statements with respect to the master, and Charlton was adjudged guilty of contempt and punished by the lord chancellor. See, also, In re Merrill, 88 N. J. Eq. 261.

It is true that in the Charlton Case the matter was still pending before the master when the solicitor acted as he did, but that cannot be a controlling feature, and, in my judgment, it is equally a contempt to scandalize a master in an' exception to his report addressed to the court which is asked to review him. Exceptions to the finding of a master are in the nature of an appeal, and it is a contempt to abuse the court below to an appellate judge. In re Merrill, supra.

This case will be considered as though a proper exception had been taken to the master’s finding on the single issue of desertion, and all the specific exceptions, except the last one, which raises the question, will be dismissed. This dismissal will carry with it the animadversions on the master to which reference has just been made, and they will not be noticed further by the court unless the master brings it up and requests that action be taken against the solicitor. It must, or, at least, it ought to be, perfectly apparent to the solicitor, that if the master makes an error in any particular, his finding is not made any the more erroneous by any bias he may have. He is either right or wrong, and that quite irrespective of motive. Hence, it is scandalous to accuse a judge or referee in the case in which he has made a finding, for the purpose of attempting to influence the decision on review in that particular case. It ought to be stated that there is nothing in the record before me which affords any basis for the charges against the master.

The master reports that there is 'no doubt that after the separation in November, 1914, and up to January, 1915, a period of over one month, the petitioner repeatedly asked the defendant to go back and live «with him, but that she refused. The expressions and conduct of the defendant toward the petitioner at and before the time of her leaving him, excused him, in my opinion, from making further efforts to induce her to return, as it appeared that they would be unavailing. Hall v. Hall, 65 N. J. Eq. 709. And her conduct and expressions corroborate the petitioner’s case in this regard. Foote v. Foote, 71 N. J. Eq. 273, 280.

The defendant told the witness Ruth Houston that she would never live with her husband again. The witness Emil Manitz testified that the defendant told him not to call her Mrs. Mc-Cauley, to call her Hilda, that she went under the name of Hilda Tilomas; that she did not live with her husband and would not; that he was crazy to have her go back, but she would not do it; that she told him at least half a dozen times that she would not live with him. She twice made similar statements to the witness Agnes Smith.

The defendant, under subpoena, testified that she left her husband on November 22d, 1914, and bad refused to live with him since; that he had asked her to go back, but she said that under no conditions would she take him back. Her sister, Stella Schofield, said she did all she could asking her sister to go back and live with her husband and that she refused. It is true that she said that the defendant stated that her husband had threatened to kill her and treated her badly; but there is no proof in the ease that the petitioner drove his wife from him by extreme cruelty, and guilt of a matrimonial offence on his part alone would justify her in leaving him. Suydam v. Suydam, 79 N. J. Eq. 144; Rogers v. Rogers, 81 N. J. Eq. 479.

The master reports that there is no doubt in his mind that both petitioner and defendant are extremely anxious to he divorced. This may be true, but in and of itself this is not objectionable, because it does not amount to collusion. Drayton v. Drayton, 54 N. J. Eq. 298.

Upon the whole case, I am constrained to the conclusion that the defendant willfully, continually and obstinately deserted the petitioner for the statutory period, and he is entitled to a divorce. A decree nisi will he entered.