text:
    The International Silver Company v. William H. Rogers Corporation et al.
    [Filed April 21st, 1904.]

      Mr. Day and Mr. Barileii, for the complainant.

      Mr. Craig A. Marsh, for the defendants.
   Stevens, V. C.

The final decree reserved the question whether the defendant ■corporation is liable to account. That question has since been .argued, and I have come to the conclusion that no account should be ordered. It would seem, that if ordered it would not be limited to the profits on sales, in the case of which it, is shown that customers were actually deceived, but also to profits made on sales, at least to middlemen, of any goods .which wear the simulated dress. Lever v. Goodwin, 36 Ch. Div. 1; Fairbank Company v. Windsor, 118 Fed. Rep. 96. The more severe the penalty, the greater the diligence complainant should use in asserting its right. It should not be permitted to stand. bj, knowing that defendant is devoting its money and efforts to building up a business; wait until after he has made profits,, and then come in and demand them as its own. A clear distinction is made in all the cases, English and American, between the right to an injunction and the right to profits. “Cases-frequently arise,” said Justice Clifford, in McLean v. Fleming, 96 U. S. 245, 257, “where a court of equity will refuse the prayer of the complainant for an account of gains and profits-on the ground of delay in asserting his rights, even when the facts proved render it proper to grant an injunction to prevent future infringement.” Among the cases which he cites are Harrison v. Taylor, 11 Jur. (N. S.) 408, and Beard v. Turner, 13 L. T. (N. S.) 746. In both an account was refused, although in the former there was a delay of only nine months, and in the-latter a delay of only two years. Their authority seems to have-been universally recognized.

The defendant Rogers began business in the summer of 1898. He continued to do business as an individual until May 1st,. 1901, when he organized the William H. Rogers Corporation. Up to this time the complainant had not sued him. It had brought' suit in Connecticut, in May, 1900, to restrain the Bristol Brass and Clock Company from manufacturing wares for Rogers, and it had, on February 1st, 1901, in the United States circuit court for the northern district of Hew York, obtained, by consent or default, an injunction against the Benedict Manufacturing Company to restrain that concern from acting as Rogers’ selling agent. T'o neither of these suits, however,, was Rogers made a party. Why he was not sued in Hew Jersey does not appear. The fact is he was not. Mr. Mills, the complainant’s solicitor, says that he had prepared a bill against him “some little time after the end of the Benedict suit” (i. e., February 1st, 1901). He did not file it because he leamed. that the Rogers corporation had been organized. He waited until June 7th, 1902, and then began the present suit.' Ho notice was ever given to Rogers that the complainant intended to proceed against him or against his corporation. During the-period between May 1st, 1901, and June 7th, 1902, the defendant corporation expended a large sum of money in establishing a plant, and in building up a business which appears to have been fairly successful. The complainant is itself a New Jersey corporation, and it is admitted that it knew of the organization of the defendant corporation very shortly after it became incorporated. Its onty excuse for not having proceeded sooner is that it was searching for evidence. But the fact is that it had no more evidence at -the time it began or at the time of the trial, a year later, than it had in May or June, .1901. It was not able, after the lapse of two 3ears, to show that a single customer, either at wholesale or retail, had actually been deceived; that is, had been buying the defendant’s goods supposing them to be of the complainant’s manufacture. Its case rested and was decided wholly on the likelihood that customers would or might be deceived because of the similarity of the name. Under these circumstances I think the complainant has been guilty of such laches as to disentitle it to an account. What Vice-Chancellor Wood said, in Beard v. Turner, applies here: “If you induce another to lay out money by keeping hack a right which you intend at some future time to assert, you may induce him to incur serious expenditure. * * * But suppose you wish to profit by that act of which you say you have a right to complain, and shall at some future period complain of, then I apprehend that this court will say you must come hero at once- — for this reason, that you ask in the bill for an account •f the profits made by this gentleman upon the sale of the goods.”


source: Caselaw Access Project

author: Stevens, V. C.

license: Public Domain

text:
    Catharine Moffett v. Lafayette L. Trent et al.
    [Filed February 11th, 1904.]
    Under section 2 of the Dower act {Gen. Stat. p. 1S76), providing that, till dower be assigned to her, the widow may hold the mansion-house of her husband, and the plantation thereto belonging, without liability for rent, a grantee of the dower rights, in possession, who is also the holder of a mortgage on the premises, is not required, on foreclosing the mortgage before the dower is assigned, to account for rent.
    On final hearing.

      Mr. Patríele II. Gilhooly, for the complainant.

      Mr. Charles II. Angle-man, for the defendant.
   Stevens, V. C.

In the year 1882 Edward L. Trent died intestate, seized of the house and lot in which he and his wife were residing. He left no issue. The widow continued to occupy the premises for some time thereafter. In January, 1884, she conveyed to the complainant all the estate, right, title, interest, dower and right of dower which she 'had or claimed to have in the premises. The complainant had prior to that time gone into possession under a verbal agreement of purchase, made with the widow. There was a mortgage on the property'at the time of Trent’s death, given by a former owner. On this mortgage the' complainant paid interest until it was assigned to her husband, on October 10th, 1885. On August 2d, 1885, it was, through one James Moffett, assigned to her. She has occupied the property ever since and has not in any way recognized the title of the heirs-at-law, who are a brother and sister of the intestate, and children of deceased brothers, except by bringing this suit and so admitting that they have an equity of redemption which she is how seeking to foreclose.

She holds and is in possession under two titles, viz., the title derived from the widow and the mortgage title. That her mortgage title is good is too clear to admit of argument. Duncan v. Smith, 2 Vr. 325. The cases cited by counsel would be pertinent if the mortgagee were out of possession, but here she is in possession.

The only debatable question is whether she is, as mortgagees in possession generally are, bound to account. She contends that she is not, because the widow, whose title she claims to hold and under whom she went into possession, is still living and would not herself have been bound to account.

Section 2 of the Dower act provides:

“That until such dower be assigned to her it shall be lawful for the widow to remain in and to hold and enjoy the mansion-house of her husband, and the messuage or plantation thereto belonging, without being liable to pay any rent for the same.”

It is quite clear that if the widow can make a lawful assignment of the interest thus given to her, the complainant is not bound to account for the rent. . The widow has, in fact, transferred tire possession. Was she able to transfer it with the privileges that would have attached to it had she herself continued in the personal occupation of the property ?

Speaking of this provision, Justice Ford, in Ackerman v. Shelp, 3 Halst. 125, said that tire estate given by it is not a common law quarantine of forty days but a freehold for life unless sooner defeated by the act of the heir. But in McLaughlin v. McLaughlin, 7 C. E. Gr. 505, Chief-Justice Beasley said “that it was but an amplification of the provision of Magna Charla, beneficially extending the term of the widow;” and in Spinning v. Spinning, 16 Stew. Eq. 215, Justice Scudder appears to have regarded it not as a freehold for life but as a privilege in the nature of a tenancy at will.

If tlie estate were a true common law estate at will, it could not'be assigned. It is, said in Cruise’s Digest (Greenl. Cru. Real Prop., bk. 1, tit. 9, ch. 1, 7) :

“A tenant at will has no certain and indefeasible estate — nothing that can be granted by him to a third person — because the lessor may determine his will and' put him out whenever he pleases. Therefore, if a tenant at will assign over his estate to another, who enters on the land, he is a disseisor, and the landlord may have an action of trespass against him.”

In repudiating Judge Ford’s idea that the estate granted was a freehold for life unless sooner defeated by the act of the heir, Judge Scudder, in the case above cited, appears to have taken care not to commit himself to the proposition that the right in question was a true common law tenancy at will. He said that the privilege was conferred by an act which should be made its own interpreter, and that its words should be construed according to their evident intent. Eeferring to the opinion of Chief-Justice Beasley in McLaughlin v. McLaughlin, supra, and to that of Judge Dodd in Bleecker v. Hennion, 8 C. E. Gr. 123, he said: “In neither case is an attempt made to define the act by any terms known in the law.” It is evident that while the right may in some respects resemble an estate at will, it does not resemble it in all respects. It' does not resemble it in one of its most characteristic features, for it is not terminable at the mere will of the heir. He must first do something on his part: he must render the widow a quid pro quo for the privilege he is depriving her of; he must assign dower before he can take it away. Den v. Dodd, 1 Halst. 449. The right of dower is assignable in equity. Tompkins v. Fonda, 4 Paige 448; Payne v. Becker, 87 N. Y. 156. Judge Dodd, in Bleecker v. Hennion, supra, in a passage quoted with approval in Spinning v. Spinning, supra, says: “The widow’s possession or' quarantine is an incident only to her dower, belonging to that right and inseparable from it.” If this be so, it follows that the right to dower being assignable its incident will go with it. In Craig v. Morris, 10 C. E. Gr. 468, Chancellor Eunyon held that a widow might lease. If she had been strictly tenant at will she could not have done so. By the express words of the act she may not only “remain in” but also “hold and enjoy.” These words, it seems to me, must be construed either as restricting the widow to the personal use and occupation of the mansion-house or as investing her with the ordinary powers of disposal. To say that she has an interest that she may rent and yet may not convey, makes an estate or interest, already anomalous, unnecessarily more so. One of the usual modes of enjoying personal property, whether it be money, securities for money, or merchandise, is by exchanging it for an equivalent. I do not see why a term of years, which is a chattel interest passing to the personal representative, or the anomalous interest in question, should not be enjoyed in like manner, more especially when it has been adjudged that this interest is but an “incident” to dower, belonging to it and inseparable from it, and that it may he leased. And no injustice is done to the heir, for he may terminate the possessory right at his pleasure by assigning dower to its possessor.

I think, therefore, that the mortgagee in possession, holding, as he does, under two titles, is not bound to account for the rental value of the premises mortgaged.


text:
    John H. Meeker, administrator of Chauncey S. French, v. Helen E. Warren et al.
    [Filed February 24th, 1904.]
    1. A deed given to secure the grantee as surety for the grantor is a mortgage.
    2. Under the statute giving judgments priority in the order in which executions are issued thereon, the holder of a junior judgment on which execution has issued before issuance of execution on the senior judgment, is not entitled to priority over a mortgage recorded before rendition of the junior judgment, but after the senior judgment.
    3. A judgment creditor cannot maintain a bill to set aside as fraudulent a quit-claim deed not conveying the fee.
    4. A bill by a judgment creditor to set aside a deed cannot be Regarded as one to quiet title where the complainant has not peaceable possession o’f the land.
    On final hearing.

      Mr.'John R. Meeker, fro se.

      Mr. Bdiuard D. Duflield, for Mr. Knapp.

      Mr. Adrian Biker, for himself, as receiver of the Newark Coal Company.
   Stevens, V. C.

The material facts are as follows: The bill is filed by complainant, a judgment creditor, against Helen E. Warren, a judgment debtor. It prays, in the alternative, that a deed given by her to John E. Knapp- may either be set aside on the ground of fraud or declared to be a mortgage. The complainant has joined as parties other'judgment creditors whose judgments antedate his own. He insists that his lien is superior to these judgments, and also to the mortgage deed, if it shall be deemed such.

The defendants, except Mr. Knapp and Mrs. Warren, are holders of judgments, recovered against Helen E. Warren in the months of Januarjr, March and May, 1898. No executions issued thereon until after execution was issued by complainant.

The conveyance by Mrs. Warren to Mr. Knapp bears date May 3st, 1899. It was recorded December 7th, 1899. The complainant’s judgment (for $879.12) was recovered on June 26th, 1902, and execution issued thereon on the same day. The principal question is one of priorities.

Under the evidence, there can be no doubt that the deed was given to secure Mr. Knapp as surety o-n a lease made by the Orange bank to Mrs. Warren. There is no proof that this deed is fraudulent, and it stands, therefore, as a mortgage to- secure-the money ($816) which he paid on his guaranty.

This being so, the case comes directly within the authority of Clement v. Kaighn, 2 McCart. 48; of Williams v. Gilbert, 10 Stew. Eq. 84, and of Andrus v. Burke, 16 Dick. Ch. Rep. 297. Under the rule laid down in those cases the priorities are as follows: (1) Knapp’s mortgage; (2) complainant’s judgment; (3) the judgments of defendants, in the order in which executions were issued.

It is earnestly argued, by complainant’s counsel, that the-cases above cited, and which are cases in this court, are repugnant in principle to Hoag v. Sayre, 6 Stew. Eq. 552, decided by the court of errors and appeals. The difficulty with this position-is that that court thought otherwise. Chief-Justice Beasley said :■ “Chancellor Green decided that the first judgment on the-mortgaged premises, by reason of the failure to sue out execution upon it, should be postponed to the encumbrance of the junior' judgments, and, as an inevitable consequence, that it should be postponed to the mortgage- which was prior to the junior judgments and whose priority was not to be affected by any laches of the holder of a prior judgment.” He said, further, that the principle of decision then announced was but the development of the principle maintained and acted on in Clement v. Kaighn.

In Clement v. Kaighn there was first a judgment, without execution; then a mortgage, then judgments followed by executions levied. In Hoag v. Sayre, as the case stood in the court of errors and appeals, there was, first, a mortgage, not properly filed, but of which the second mortgagee had actual notice;then a second mortgage, then a judgment with execution. In the first case the order of priority was held to be: (1) The mortgage; (2) the junior judgments; (3) the senior judgment. In the second case, the order of priority was held to be: (1) The judgments to the full extent of the first mortgage; (2) the second mortgage; (3) the sum remaining due (if any) on the judgments; (4) the first mortgage. The complainant’s contention is that inasmuch as the judgment creditor was, in the Iloag Case, put in the shoes of the first mortgagee because the second mortgagee had taken with notice, so, in a case standing in the situation of the Clement Case, the junior judgment creditor should be allowed to stand in the shoes of the senior judgment creditor, because the senior judgment has priority over the mortgage. There appears, however, to be a difference. The statute declares the unrecorded mortgage on real estate void •only to a limited extent. It is void as against judgment .creditors; it is good as against the mortgagor .and as against his assigns, if those assigns take with notice, and, consequently, as against the second mortgagee. It may well be held that as against the mortgagor and the second mortgagee with notice, the estate carved out of the fee by the first mortgage sufficiently .subsists to admit of the judgment lien (perfected by execution) fastening upon it and so taking precedence over the estate of the second mortgagee, who remains in precisely the same position ns before. He is neither advanced nor postponed.

On the other hand, judgment liens, before levy, are general and indefinite, vesting no estate. By force of the statute, such liens have precedence in the order of the date of their entry, but this order of precedence may be changed by execution and levy. So far as levies are made, the judgments take precedence in the order in which they are made. Under this statutory system there is no ground for holding that one judgment creditor shall stand in the shoes of another, and have all that ■other’s rights. His lien must either, except, of course, in eases where the judgments or executions are entered or levied simultaneously, precede or follow. Such, to use the words of Chief-Justice Beasley, is the “inevitable consequence” of the legal enactments- on the subj ect.

Whether this be the true ground of the distinction or not, it has been adjudged by the court of errors and appeals to exist, and that, so far as this court is concerned, is an end of the matter. I may add that the hardship, if anjr, is not upon the junior judgment creditor, who stands, with reference to the mortgage, just as he ought to stand, but upon the senior, who i's postponed, not only to the junior, but also to the mortgagee. But, it must be remembered, he owes his loss of precedence to his own lack of diligence. The statute says that if he does not levy he shall lose his priority over the creditor who does. And the courts say that as a necessary consequence he shall also be postponed to the intermediate mortgagee. The result of his lack of diligence is that he is visited with a double, instead of a single, penalty. If the fund be greater than the junior judgment, the senior creditor can pay off the judgment and regain his priority by its extinguishment. If it be less-than the judgment, he cannot get the fund in any event.

It is further argued by counsel that the deed, being one of quit claim merely, did not convey the fee. ' If this be so, then complainant’s bill should be dismissed, for Mrs. Warren, in that case, still-holds the legal title, and there is nothing to prevent complainant from proceeding with his execution. The bill cannot be sustained as one to- quiet title under the statute, for the comqDlainant has not the statutory prerequisite — peaceable possession — and, besides, it is not framed on that theory. But the point itself has been decided adversely to the contention. Havens v. Seashore Land Co., 2 Dick. Ch. Rep. 365.


text:
    Tunis R. Hill v. William Henry, or his heirs, devisees, or personal representatives.
    [Filed March 25th, 1904.]
    Section 11 of the Chancery act (Revision of 1902), providing for publication against unascertained heirs, devisees or personal representatives and a decree against them by their class designation only, does not apply to the “Act to compel the determination to claims to real estate in certain cases and to quiet the title to the same.” If it did apply, would it contravene the fourteenth amendment to the federal constitution as: not being due process of law. Qucsre.

      On final hearing.

      Mr. Charlton A. Reed, for the complainant.

      Mr. George T. Parrott, for William Russell, administrator of William Henry.
   Stevens, V. C.

This is a bill to quiet title, the cloud to be removed being a possible claim of a right to dig for black lead under an agreement made by the then owner of the land with one William Henry in the year 1810. Its peculiarity consists in the fact that, as the bill itself is framed, it contains no defendants except “William Henry, or his heirs, devisees, or personal representatives.” It alleges that William Henry is dead, and so the suit is not against him. Ho other individuals are specially named and so the suit is not against individuals but against classes, those classes being (1) the heirs of Henry; (2) his devisees, and (3) his personal representatives. There is no direct allegation that Henry died, leaving heirs or devisees. That he did is only a matter of inference from the allegation that complainant has been unable to ascertain their names and residences. There is no allegation that anyr members of these classes now.survive.

This anomalous proceeding, so contrary to the ordinary course of legal and equitable procedure, is sought to be sustained by section 10 of the Chancery act of 1902 (P. L. of 1902 p. 512), which is a re-enactment of the act of 1903 (P. L. of 1903 p. 256). It provides as follows:

“Id all actions hereafter commenced in the court of chancery whenever it shall appear by the allegations of the bill or petition duly verified by affidavit thereto annexed, that any person mentioned in said bill or petition, or his heirs, devisees or personal representatives are proper parties defendant to said bill of complaint or said petition, and that the complainant or petitioner, after diligent and careful inquiry therefor made as in case of absent defendants, has been unable to ascertain whether such person is still alive, or if he is known or believed to be deceased, has been unable to ascertain the names or residences of his heirs, devisees or personal representatives or such of them as may be proper parties defendant as aforesaid, such action may proceed against such person by name anil his heiis, devisees or personal representatives, as in the case of absent defendants whose names are known; and such notice as is required by law to be published against absent defendants, in default of personal service, addressed to such person by name, and to his heirs, devisees and peisonal representatives, and containing such further statements and giving such further time as the chancellor may by his order direct, shall be first published and mailed in such manner as the chancellor may by his order in such action direct.”

Regarded merely as an invitation to come in and defend, this section, so far, would seem to be unobjectionable on the theory of the decision in Kirkpatrick v. Post, 8 Dick. Ch. Rep. 592. Application was there made to set aside an order of publication against two absent and non-resident defendants, against whom a personal demand was made, and against whom, it was argued, no decree could, under the doctrine of Pennoyer v. Neff, 95 U. S. 733, be taken. The application, contrary, apparently, to the practice which prevails in the United States courts (Puster v. Parker Mercantile Co., 19 Dick. Ch. Rep. 600), was denied both in this court and on appeal, on the ground that the publication being notice merely to the defendants of the pending litigation of which they might avail themselves by coming in if they saw fit, it could do no harm. “It was not to Ire assumed,” said Chief-Justice Beasle3r, “that the court of chancery would pronounce a decree that would he illegal and contrary to the federal constitution as not being ‘due process of law.’ ”

But the section under consideration goes further. It provides that in case the person known, or believed to be dead, shall not appear, plead, answer or demur within the time limited,

“sueli action may proceed in all respects as if such person, or his heirs, devisees or personal representatives had been duly named raid described and served with process of subpoena in said action and had failed to plead, answer or demur within the time thereto allowed by law.”

Section 11 prescribes the effect of the decree.

“All such defendants and all persons falling within the description of heirs, devisees or personal representatives of the defendant, supposed to be dead as aforesaid, shall thereupon be bound by all orders and decrees in said cause, as if they had been duly named and served with process in this state,” &c.

Two points are taken — first, that the proceeding authorized is not “due process of law;” second, that sections 10 and 11 have no application to the act to quiet title.

Before discussing these questions" I ought to state how they have been raised. It appears that one William Russell, who was a lineal descendant, not of William Henry but of William Henry’s wife by a former husband, seeing the order of publication, made application to the surrogate of Morris county and had himself appointed administrator of William Henry, who is believed to have died over fifty years .ago. He then applied to be admitted a defendant, and was so admitted, and filed an answer, setting up a claim under the agreement of 1810. It is plain under the decisions that the agreement was a mere license, long since expired (East Jersey Iron Co. v. Wright, 5 Stew. Eq. 248), and that even if it were an incorporeal hereditament, which had descended to Henry’s heirs, Russell, either as administrator or personally, had no interest in it. He was not heir of Henry, and so he could not take as heir; and the right, if it subsisted, not being personalty, he could not take as administrator. Against Russell, therefore, it seems to me that there ought to be a decree, for whether the publication was authorized or not, whether it had or not the force of an invitation to come in and defend, the bill called upon the legal representative to answer. In response to the call he appeared, answered and claimed. He therefore waived' any irregularity in the proceeding and stood in the same position as if he had acknowledged due and legal service of a subpoena to answer.

But the important question is, can the court make a decree against heirs and devisees who have not come in? Although they have not raised the question, it is not, in the language of the before-quoted passage from the opinion of the court of errors and appeals, to be supposed that this court will make a decree that will be illegal or that may be contrary to the federal constitution.

The federal question is to bo resolved by the decisions of the supreme court of the United States. “A judgment obtained without jurisdiction over the person is,” sa3rs Chief-Justice Beasley in Elsasser v. Haines, 23 Vr. 15, “of no legal avail either at home or abroad,” though apparently sanctioned by a local statute. To the same effect are Eliot v. McCormick, 144 Mass. 10; Needham v. Thayer, 147 Mass. 536. If of no legal avail, it ought not to be made.

The following propositions have been established by the supreme court:

First. That a personal judgment is without validity if it be rendered by a state court in an action upon a money demand against a non-resident, proceeded against by publication but not personally served with process within the state and not appearing.

Second. That no validity is imparted to such a judgment by the fact that the defendant has, at the time tire action is commenced, property within the state upon which a levy can be made under tire judgment. Pannoyer v. Neff, 95 U. S. 714.

Third. That even a judgment for costs in an action of trespass to try title (the plaintiff claiming only an undivided interest), although it is a suit quasi in ram, cannot be made out of the undivided share of the non-resident, he not being personally served and not appearing. Freeman v. Alderson, 119 U. S. 185.

Fourth. In suits strictly in ram, that is, where the property itself, conceived of as having done the wrong or as having been the instrument of its commission, is being proceeded against; and in suits quasi in ram, that is, where the suit is against the person in respect of the res — where, for example, it has for its object partition or the sale or other disposition of defendant’s property within the jurisdiction, to satisfy plaintiff’s demand by enforcing a lien upon it — personal service within the jurisdiction or appearance is not necessary. The decree can, however, extend only to the property in controversy. But there is this -distinction between these two classes of proceedings: in the former, public citation to the world is all that is necessary and the decree binds everybody; in the latter, defendant’s interest is alone sought to be affected; he must be cited to appear and the judgment therein is conclusive only between the part-ties. Freeman v. Alderson, supra.

Fifth. Both of the classes of cases last mentioned have this in common. The res, the subject of the controversy, is within the jurisdiction, and it is because it is so that the court is able to affect defendant’s interest in it. There is a further case, illustrated, so far, by proceedings to quiet title. The case is based upon a denial of any "res” in the defendant. In this class of cases the supreme court has taken a distinction. If the decree sought be a decree operating in personam only, to be made under the ordinary jurisdiction of equity — a decree, for instance, that the defendant make or cancel a conveyance;. that defendant be restrained from asserting his claim — it can only be made after personal service within the jurisdiction or after appearance. Hart v. Sansom, 110 U. S. 151. But if the decree be taken under a statute which authorizes the court to determine the question of title and to decree it to the party entitled, then it binds without such service or appearance if the statute has provided “a reasonable method of imparting notice.” Arndt v. Griggs, 134 U. S. 316.

The statute under review would seem to be operative and unobjectionable so far as it relates to proceedings strictly in rem if the legislature, has conferred, or should confer, any jurisdiction in cases of that class. As a general notice to the world would be good, so a notice to those classes of persons who might be interested in the subject of the controversy would appear to be good also. When we come to proceedings quasi in rem — that is, to proceedings against persons in respect of property within the jurisdiction — the case is more doubtful, for in this class of cases one of the requirements mentioned by the supreme court is citation to the defendant whose rights are to be affected and who alone will be bound. It is true that this citation may be by publication and mailing, but hitherto, as far as the decisions have gone, there has been, except in tax and condemnation cases, which are manifestly peculiar, a named defendant, and publication against him has been justified on the ground of the probability that the con.structive notice thus given would lead to actual notice. Mr. Justice Brewer, in Arndt v. Griggs, supra, says that the well being of every community requires that the title to real estate .shall be secure and that there shall be convenient methods of ■determining any unsettled questions respecting it. He says further that for the purpose of such determination “the state may provide airy reasonable method of imparting notice.” In considering the question presented by section 10 of the Chancery .act, his declaration should be read perhaps, not only in connection with what is said in Freeman v. Alderson, supra, but also with the following passage in Boswell, Lessee, v. Otis, 9 How. 350: “Ho principle is more vital to the administration of justice than that no man shall be condemned in his person or property without notice and an opportunity to make his defence. And every departure from this fundamental rule by a proceeding in rem, in which a publication of notice is substituted for a service on the party, should be subjected to strict legal scrutiny. Jurisdiction is not to be assumed and exercised in such cases upon the general ground that the subject-matter ■of the suit is within the power of the court.11

A general notice with an opportunity to be heard has been held to be sufficient where the land is to be sold for non-payment •of taxes (Glidden v. Harrington, 189 U. S. 255) or where land is condemned for railway purposes. Huling v. Kaw Valley Railway, 130 U. S. 559. On the other hand, in Webster v. Reid, 11 How. 460, under a statute of the then Territory of Iowa, actions were authorized against the owners of the “Half Breed Lands.” The statute expressly provided that the designation “'The owners of the Half Breed Lands tying in Lee county” should be a sufficient designation of the defendant in the suit. Judge M’Lean said: “By the act under which these suits were instituted no other designation of the defendants was required than owners of the Half Breed Lands tying in Lee county. These suits were not a proceeding in rem against the land but were in personam against the owners of it. Whether they all resided in the territory or not does not appear, nor is it a matter ■of any importance. Ho person is required to answer in a suit on whom process has not been served or whose property has not been attached. In this case there was no personal notice nor an attachment, or other proceeding against the lands until after the judgments.”

It may be said that this case is not unlike Pennoyer v. Neff, but we have an intimation, at least, that a proceeding in personam in respect of land was not, even before the passage of the fourteenth amendment, regarded as being due process of law if prosecuted against an indefinite class, though some of the members of that class resided within the jurisdiction.

If, under legislative sanction, an encumbrancer should, in a foreclosure case, instead of naming individuals, describe the-defendants as “all persons claiming title to or interest in or lien upon the mortgaged property,” and should allege that his was-the prior lien, I should doubt very much whether a decree against such persons, described as a class and not as individuals, would be considered due process of law — would be regarded as entitled to full faith and credit — even if a notice of the proceeding were-served upon those within the jurisdiction and published against those without. Its vice, if any, would be that it did not observe-the distinction, as old as tire common law itself, between a proceeding strictly in rem, where such notice would be good, and a proceeding quasi in rem; a proceeding against a person in-respect of a res, in which latter, as Mr. Justice Field said in Freeman v. Alderson, supra, citation to the individual defendant is required. There are very good reasons' for observing the distinction. If the defendant be personally named in the order or notice of publication there will be more likelihood of his receiving actual notice. The pleading will inform him of what is alleged against him, individually, and the decree will bo definite and certain. The record will show who are-bound and estopped by it.

In view of the course of adjudication in the supreme court, I think it may be regarded as certain that any law which sanctions a course of procedure like that authorized by section 10' of the Chancery act, will be allowed to operate only within narrow limits.

The question is whether section 10 may be applied to bills to quiet title. As applied to this class of bills it would seem to be a mode of supplementing the statute of limitations. It may be remarked that it fails to effect its object. It does not quiet the. title. It does not extend to the case of the devisee of an heir or to the heir or devisee of a devisee. It does not extend to an assign of either an heir or devisee. Operating as an estoppel, the decree would, of course, be construed strictly. Again, if entered in the form prescribed, it is uncertain whom it binds. If the person, supposed to be dead, be in fact alive at the time of decree, then it would be nugatory as to the heirs; for nemo est haeres viventis, and as to devisees, for he then has none. On the other hand, if the person be dead, it does not bind him and resort must be had to evidence aliunde to ascertain whom it does bind.

Counsel has referred me to no case in which the precise question has been adjudicated, and I have found none. In the present condition of the authorities I ought not to pass upon a question of so much difficulty if the decision may be rested on another ground, and I think it may. Tire above discussion is not irrelevant, for it at least indicates that the section should not be extended to cases which it does not clearly reach.

It is only by a strained construction that section 10 can be deemed to have any application to the act to quiet titles. This is not because its language is not broad enough to include all suits that may be properly brought in this court. I think it is. But because it does not fit the act to quiet titles. The requirements of this act are such that unascertained defendants are excluded from its operation. The act to quiet titles enlarges the jurisdiction of the court of chancery (Haley v. Goodheart, 13 Dick. Ch. Rep. 369; affirmed on appeal; American Dock Co. v. Trustees, 10 Stew. Eq. 272) and cannot be itself extended beyond its terms. It relates either (1) to those who deny or dispute, or claim the title of one who is in peaceable possession of lands in this state; or (2) to those who are claimed or reputed to own the same or any interest therein, or to hold any lien or encumbrance thereon. Against these two classes of persons, and against these only, is the statutory remedy given. Are unascertained heirs or devisees included within these classes? Before I discuss this question, I may be permitted to remark that section 10 is a little confusing. One clause of it seems to contemplate the possibility of the person named being alive. But if a decree should be taken against him on the assumption that he was a living person, no decree could be made against his heirs or devisees, for he would have none. I hardly think this court would venture to malee a decree against a person shown to have no existence. Certainly, if made, it would not be due process of law. There would be, in fact, no "reus.” If a decree is to be taken against the heirs and devisees at all, it must be because the ancestor or devisor is shown by proof, actual or presumptive,' to have died. I do not suppose that a decree in the form following would be sanctioned by section 10, or would be due process of law. “If W. II. is alive, then we decree against him; if W. II. is dead intestate, then we decree against his heirs, if he has any. If W. II. has made a will and devised his property, and has died, as to which we know nothing, then we decree against his devisees.” It is plain, then, taking the whole section together, that the decree which the statute intends shall bo made under it is a decree against heirs and devisees. The name of the ancestor or devisor is brought in only for purposes of description or identification.

With these preliminary remarks, I come to the question whether the act to quiet title extends to heirs and devisees. This must be resolved by the provisions of the act itself.

In section 1 it provides that the' bill shall not only describe the lands with certainty but shall name the person who claims or is claimed, or reputed to have title or interest. It is this person, brought in by his name, that is to be proceeded against. The same requirement of an individual, definitely ascertained, is carried through every section of the act. By section 2, in addition to the subpoena, a ticket is to be issued to each der fendant, that is, to each defendant named in the bill,’ stating the object of tire suit and requiring him to answer if he claims title. In this section the statute requires that to be done which Justice Field, in Freeman v. Alderson, said must be done in all Cases which were not cases of proceedings strictly in rem~ By section 3 no decree for costs is to be taken against any defendant who suffers a decree against him or who answers, disclaiming title. By section 6 the final decree is “to fix and settle the rights of the parties in the land,” a thing impossible if the heirs or devisees do not appear and show how the title has devolved upon them and in whom if subsists. The act throughout contemplates a proceeding against definite individuals lcnpwn to have an actual existence, not an indefinite class whose membership and whose very existence are unascertained. Thus construed, the act is in harmony with well established procedure, in a particular involving fundamental rights. It was suggested that if section 10 of the Chancery act be not applicable to the act to quiet titles, then those sections of the Chancery act which provide for. the case of absent defendants are not applicable. There is no force in this contention. Where there are absent defendants, they are specially named, and the entire course of proceeding against them up to and including decree is the customary one. They are brought into' court by publication and by notice sent by mail, directed to them at the post-office nearest their residence, unless the same cannot be ascertained after diligent inquiry; and this the supreme court has said, in this very class of cases, is a reasonable method of imparting notice in a proceeding of this character. Arndt v. Griggs, supra.

But there is another difficulty with complainant’s ease. It has not been proved. Section 10 of the Chancery act provides-that “such action may proceed in all respects as if such person, or his heirs, devisees, or personal representatives had been duly named and described and served with process in said action and had failed to plead, answer or demur within tire time-allowed by law.” Section 28 of the Chancery act provides that if the defendant shall not file his plea, demurrer or answer within.the time limited, the bill of complaint shall be taken as confessed and such decree made as by the court shall be-deemed equitable; or the chancellor, in his discretion, may order the complainant to produce documents and witnesses to prove the allegation of his bill. Ho decree pro confesso was made in this case. It was referred to a vice-chancellor to hear the same and to report what decree should be made. It is a familiar rule that no decree shall be made unless warranted by the allegations of the bill (Reynolds v. Stockton, 16 Stew. Eq. 213; 140 U. S. 254) and unless founded on evidence supporting those allegations. There is nothing in section 10 to modify this rule and it cannot be dispensed with in favor of this proceeding.

In the first place, I have already shown that no decree can be made against William Henry, because the proof is that he has been dead over fifty years. In the second place, there is no proof that William Henry made a devise of the right in controversy. Certainly, we cannot infer that he did without proof. Ho devise being shown, there is nothing on which to base a decree against devisees. If any decree can be made, it can only be made against “the heirs” of William Henry, and such a decree would rest not upon any proof that William Henry left heirs, lineal or collateral (for there is no proof on the subject), but on a presumption that he did so. Whether such a presumption ought to be made, I need not consider, because if it may, the proof must go further. It must show either that these heirs have disputed or denied complainant’s title, or'that, they claim the land, or some interest in, or lien upon it; and of this there is no evidence; or it must show that they are reputed to have sonic title, interest or lien; and of this, too,, there is no evidence; or it must show that they are “claimed”' to have some title or interest or lien. As to this, the proof is. that Bliss directed his solicitor to have a search made upon the’ property, and that the searcher found the agreement of 1810 on the record, and the solicitor thereupon advised his client not to take title until the cloud arising from the agreement should be removed.

The words “to claim” are sometimes incorrectly used, as sjmonymous with “to think,” “to insist.” Their proper, and I take it their statutory, meaning is “to challenge as a right,” “to demand as due.” There is no proof that tire solicitor of Mr. Bliss, or anyone else, made any such claim on behalf of the heirs. A mere suggestion that possibly someone might make a claim, without any belief on the part of the person making it that such a claim would be good or maintainable, does not satisfy the requirements of the act. It was never intended that suggestion alone should subject other persons to the annoyance of a law suit.

Either on the ground, therefore, that the provisions of section 10 have no application to the act to quiet titles, or on the ground that the proof does not support the bill, I think it should he dismissed as against William Henry and as against his heirs and devisees.


author: Grey, V. C.

text:
    Emma Teeter et al. v. William R. Veitch.
    [Filed February 10th, 1904.]
    1. If a demurrant introduces new facts or misrecites the statements of the bill in his demurrer, and on such new facts and misrecitals bases his criticism of the bill, his pleading is a speaking, demurrer and will not be sustained.
    2. Where a demurrant admits by his pleading that lie received title to lands under a trust to convey the whole of them to another; that he has wrongfully extorted money, in cash, and the promise of more, as a condition of making such conveyance, and (though he has conveyed a part of the-trust lands in accordance with his duty as trustee) has retained another part of these lands as security for the performance of the extorted promise to pay the additional sum, the complainants (who are entitled to the benefits of the trust and seek by their bill to enforce its performance) are not obliged, as an incident of their right to relief in this court, to tender to the demurrant a reconveyance of that part of the trust lands which the demurrant has rightfully conveyed in performance of his duty as trustee.

      On demurrer to supplemental bill.
    The original bill in this cause was filed by the complainants, who arranged and paid the cash portion of the purchase-money of a tract of land at Forest Hill, in the city of Newark, in this state, known as the “Crane Farm Tract,” which they intended, to divide into town lots and sell by means of a land corporation, to whom the title of the purchased lands was to be conveyed.
    The intended corporation not being in existence, it was arranged that the title to the property should be put in the name of the defendant, William E. Yeiteh, to be held by him until the organization of the proposed corp oration, when Yeiteh should convey it to the corporation, receiving therefor its capital stock, which he was to transfer to the complainants, who had furnished all the money for the purchase of the land. It was further arranged that Yeiteh should be the secretary and treasurer of the company when organized, with provision for his compensation if he chose to withdraw from the company’s active service.
    A written agreement, dated the 28th day of January, 1903, was made between Yeiteh and the complainants to the above-stated effect, copy of which is set forth in the bill of complaint.
    Twenty-six thousand dollars was by the complainants applied in the acquisition of the property. Yeiteh paid nothing. The deed was made conveying to him the title to the property, and he was thereupon invited to carry out the written contract whereby he had agreed to convey the title to the new corporation. This he refused to do, giving no further reasons therefor than that ho was not satisfied with the terms of the agreement and that he did not like one of the complainants.
    The original bill further states that the defendant resides in the State of New York; that he is entirely irresponsible; that the complainants, by reason of his refusal to perform his agreement, are losing more than $30 a day interest and loss because of inability to realize upon their propertjy and that there is danger that the title to the same may be encumbered or disposed of by Yeiteh, contrary to the terms of his agreement.

      The complainants pray air answer, under oath, with discovery as to the facts charged in the bill to be true; for an injunction-restraining the defendant, Yeitch, from interfering with or disposing of the farms in question; and for his removal as trustee, and the substitution of another trustee in his place, to-whom he should be directed to convey the title, or for a receiver.
    A supplemental bill was, by leave, filed on the ,15th day of' August, 1903, which, after reciting the substance of the original bill and affidavits annexed, states that a rule to show cause was allowed on the original bill why the relief sought in that-bill should not be granted; that copies of the original bill and affidavits were personally served upon the defendant, who upon-the return day of the order appeared by counsel, who, after obtaining a postponement, refused, at the adjourned flay, to file-an appearance for the defendant.
    The supplemental bill further alleges that the complainants-have sought to obtain some relief which would obtain for them the use of their property, but that the defendant refuses to-execute a deed to or join in the execution of the proposed certificate of incorporation of the new company, or to take any part in the business of the proposed corporation, though requested specifically so to do; that the complainants’ attorney then met the counsel of the defendant in an attempt to make-some arrangement whereby the agreement for the transfer of thetitle to the land held by the defendant could be put into effectbjr conveying it to the proposed corporation; that at their meeting tire defendant would consider the matter only on condition; that a payment in cash should be made to him, which he first insisted should be $13,500, but which he gradually reduced to-$1,375. This the complainants refused to pay, because it was contrary to- the stipulation by which the defendant had received’ the title and had agreed to convey to the proposed corporation1 as above recited. Other propositions seeking to induce the defendant to carry into effect his agreement to convey were made to his counsel, and refused by him. Those rejected propositions-■did not proffer the payment of any money to the defendant, and the only reply made was “money talks.”
    The supplemental bill further recites that the title to the land, paid for by the complainants, having by the deed been placed in the name of the defendant, Veitch, the complainants were kept out of the use of their property and were suffering daily losses on the investment, and also interest on the mortgages thereon, and were in danger of losing their entire property therein; that under the strain of these circumstances and through fear of additional and greater threatened losses, the complainants, on the 17th day of July, 1903, made an arrangement with the defendant, evidenced by a written memorandum of a deposit in escrow (copy of which is annexed to the complainants’ supplemental bill) to the effect that the certificate of incorporation of the Urban and Suburban Realty Title Company (the proposed new land company) and accompanying papers necessary to the completion of its first meeting and organization, and a deed from the defendant and wife to the proposed new company, should be executed by the defendant; and a release, protecting the defendant against any liability on certain notes, should be executed by complainants, and should all be deposited in escrow with a Mr. Schultz; with a provision that unless $500 was paid to the defendant, all of the papers in question (except the release) were to be returned to the defendant, but in case the payment of $500 should be made, then the certificate of incorporation and the accompanjung papers, and the deed from the defendant to the proposed compan}r, were to be delivered to the complainants or their attorne3r. Appended to the copy of the escrow agreement annexed to the supplemental bill and made part thereof, is a receipt, dated July 25th, 1903, whereby the escrow-holder acknowledged that he had received 'from the complainants’ attorney the $500, which was to be deposited for the defendant. The supplemental bill further alleges that the certificate of incorporation of the new company and its accompanying papers, with the deed of the defendant, conveying the land to the new company, were, pursuant to the escrow agreement, deposited with Mr. Schultz; and that afterwards “the deed of the property was obtained and the same is now recorded,” &c.
    The supplemental bill further alleges that in addition to-the $500 in cash the defendant required that the complainants should agree to pay him a further sum of $1,000 to induce him to carry out the terms of his contract to convey the lands to the proposed company; that, in order to secure the-payment of this $1,000, the deed, which this defendant made to the new company, contained a reservation, excepting therefrom a lot of land one hundred feet square, which in the deed was declared to be retained
    “by the said William R. Veitch as and for security for the payment within six months from the execution of this deed of the sum of $1,000, which, said sum, if not paid within six months, said William R. Veitch shall retain said plot of ground as his own property, free and clear of all encumbrances thereon.”
    The supplemental bill further alleges that the payment, or securing of the said sums of money, were forced from the complainants by fear of loss and damage which they would suffer if the defendant further, refused to perform' his agreement; that the defendant willfully and maliciously imposed upon them and demanded said moneys as a condition precedent to his conveyance of the land which had been entrusted to him, relying upon his honesty; that he had rendered no-service whatsoever, such as it had been intended and contemplated would follow the organization of the said company, but having received, as above stated, the title to said real estate, which the complainants had paid for with great difficulty, and believing that he had them in his power, and knowing their helpless condition, and that it was impossible for them to release the money invested in the properties, or to earn any returns from the property until the defendant’s demands had been complied with, the defendant insisted upon the payment of said sum of $500 and the securing as aforesaid of the payment of said sum of $1,000 within six months from the 17th day of July, 1903. That the said demands of defendant were nothing less then blackmail, and that the complainants were forced to concede them under the fear of the loss of their entire property; that the defendant knew that, as a non-resident, refusing to appear in the action, he could delay the complainants in the prosecution of any suit to recover from him the title to said property, so that they would be subjected to a loss of more than $30 a day interest, besides the losses of profit of the land from their inability to handle or dispose of the property, and the complainants charge that the defendant’s acts were deliberately planned for the purpose of extorting the payment of the said $1,500.
    The complainants pray that they may have the same relief against the defendant as if the matters set forth in their supplemental bill had been stated in their original bill; and that the value of any interest of the defendant under the agreement of January 28th, 1903, may be ascertained; that the portion of said property, retained by him in the exception above recited, to secure the payment of said sum of $1,000, be decreed to be surrendered to the complainants, and for other relief, &e.
    To this supplemental bill the defendant demurs generally, and for causes of demurrer shows — first, that by the supplemental bill it appears that tire matters and things in issue between the parties set forth in the original bill “have been settled by the parties hereto, and said suit ended, and that there is not now any suit pending on the original bill to which the supplemental bill can be supplemental;” second, that by the supplemental bill it appears that the complainants received from the defendant, for and in consideration of the payment to him of the sum of $500 and the agreement to pay the further sum of $1,000, a deed for certain lots of land, and that the supplemental bill does not allege any tender, or offer of tender, by the complainants, “to reconvey the premises conveyed by this defendant to said complainants in exchange for said payment and said agreement for further payment, and that thereby the said complainants fail to offer to put the defendant in the position in which he was prior to the making of said deed, and fail 'to offer or to do or offer to do that equity to the defendant which he must offer to do or do before he can obtain relief in this honorable court.”
    On this demurrer, based upon these two grounds, the cause has been argued.

      Messrs. McEwan & McEwan, for the demurrant.

      Mr. Anderson Price, for the complainant.
   Grey, V. C.

The effect of the demurrer is to admit the truth of all the facts narrated in the complainants’ bill, which are well pleaded. It is sufficiently averred that the complainants raised all of the purchase-money to buy a tract of land; that the defendant did not contribute any portion of the purchase-money, but in writing agreed with the complainants that he would accept a conveyance of the land and would convey it to a corporátion which was, with his aid, to be formed; would receive the stock of that corporation to lie issued in payment for the conveyance, and would turn over the same to the complainants, or to the persons named in the written agreement.

It is also admitted by the demurrer, because sufficiently alleged in the bill of complaint, that, having under these circumstances received the conveyance of the title, the defendant, for the purpose of extorting money from the complainants, held the title and refused to convey the same in accordance with his agreement; that he refused to aid, as he had agreed to do, in the formation of the proposed corporation and to receive and distribute the stock in exchange for the conveyance of the title. That he continued to refuse until an action was brought by bill filed in this court; that he refused to. appear to the action in question and no jurisdiction was obtained over him because he was a non-resident.

The demurrer also admits that the defendant is financially irresponsible, and that he could not be compelled to convey the premises wrongfully withheld by him without resulting delays, which he knew would subject the complainants by loss of interest .and the inability to use their property to great damage and injury; that in furtherance of his original purpose to extort money, to which he was not entitled, from the complainants, the defendant required and forced the complainants, in order to avoid the losses which would result from his willful delay in •carrying out the plan which he had agreed to aid, to consent to the deposit in escrow.of the instruments which he had originally agreed to execute and deliver without price, upon the terms that $500 should be paid to him in cash and that an additional $1,000 should be secured to be paid to him within six months thereafter by his retention of a portion of the lands to which he held the title and which he had agreed, as stated, to convey without price to the new company.

These facts are, all of them, pertinent to the relief sought by the complainants’ supplemental bill and may justly be said to be well-pleaded allegations. By admitting them to be true, the demurrant confesses that he received the title in question upon a trust, declared by him in writing, whereby he agreed to make a certain disposition of that title. He also admits that for the purpose and with the intention to extort from the complainants sums of money which they did not owe him, and which were in no manner or way due or payable to him, he has abused the confidence so reposed in him and has by such extortion actually received $500 in cash in breach of his trust, and has retained a part of the land, which by his trust he was obliged to convey without charge, as a means of extorting the payment of the additional sum of $1,000. The complainants, in their supplemental bill of complaint, designate the defendant’s demand for, and compulsion of payment of this money, as blackmail. It is difficult (taking the facts admitted by the demurrer to be true) to see wherein this designation is an injustice.

The- first ground of the demurrer alleges that it appears by the supplemental bill- that the matters and things in issue between the parties, set forth in the original bill, have been settled and the suit ended, and that there is not now any suit pending on the original bill, &c. The counsel for the demur-ant in argument contends that the moneys paid, and secured to be paid, by the complainants, were by them expended or secured to settle a pending litigation, and that they are not recoverable even if the defendant’s claim (which was the cause of the litigation) could not be sustained, and that the litigation was ended by the arrangement between the parties.

This ground of demurrer is, however, untrue in fact, for it does not appear by the supplemental bill that the payment of $500 in cash and the retaining of part o£ the land as security for the $1,000, to be paid in the future, were agreed and arranged to be paid and secured in settlement of the suit, nor does the supplemental bill anywhere show that those steps ended the litigation pending when they were taken. On the contrary, the acts of the defendant with respect to these payments are, by the supplemental bill, alleged to have been part and parcel and in aid of his original purpose to retain the title to the land in question until he was, by any process available to him, able to> extort moneys from the complainants, which were in no way rightfully due or payable to him, and that the $500 and the promise to pay the $1,000 were forced from the complainants in pursuance of the defendant’s original purpose to cheat them. By the demurrer the defendant has admitted these allegations to be true.

It is the defendant who, by the demurrer itself, introduces the statement that the payment in cash of the $500 and the securing of the $1,000’by the retention of a part of the land were in settlement of the original suit and that said suit is no longer pending. Ilis pleading not only thus introduces a new fact into the record, but having so brought in the new fact, he makes it a ground for challenging the complainants’ bill.

The second ground of demurrer is that it appears by the supplemental bill that

“the complainants did receive from this defendant the deed referred to, in consideration of the $500 cash and the further sum of $1,000, and that the supplemental bill does not allege any offer or readiness by said complainants to reconvey the said premises conveyed by this defendant to said complainants in exchange for said payment and agreement for further payment,”

and that the complainants have thereby failed to offer to put the defendant in the position in which he was prior to the making of said deed, which in equity he must offer to do before he can obtain any relief in this court.

This ground of demurrer misrecites the facts narrated, in the supplemental bill. That bill does not state that the deed in question was received by the complainants, or that it ever came into their possession. All that is alleged regarding the actual delivery of the deed out of escrow is that “the deed of the property was obtained and the same is now recorded,” &c., but the bill does not state by whom it was obtained or recorded. It may have been, and presumably was, delivered to the grantee named in it.

The demurrer again misrecites the statements of the supplemental bill, for that bill does not allege that the defendant conveyed the property in question to' the complainants, as is stated in the demurrer; on the contrary, there is an express allegation that the deed conveyed it to the newly-incorporated company, the “Urban and Suburban Eealty Title Company.”

The demurrer, in the several particulars enumerated, restates facts differently from the allegations of the supplemental bill and makes the new facts thus introduced the ground of criticism of that bill. All the objections made to the bill, whether in the statement of the grounds of the demurrer or in the argument of the defendant’s counsel in support of it, depend for their force not upon the allegations of the complainant in the supplemental bill, but upon the new facts introduced by the demurrant himself, in the demurrer. He thus makes the case to which he demurs.

It is a principle of correct pleading, that a demurrer can only be founded on a fact or omission appearing in the bill. It cannot set up a fact or omission not appearing in the bill and thereupon demur. Black v. Shreve, 3 Halst. Ch. 458. Such a pleading is a speaking demurrer, which cannot be sustained. Edsell v. Buchanan, 2 Ves. *83; Story Eq. Pl. *448.

Aside from this somewhat technical examination of the demurrer in question, the complainants, in view of the facts pleaded in the supplemental bill and admitted by the demurrer, are under no obligation to tender a reconveyance of the land to the defendant as an incident of their application to this court for relief. The demurrant has, by his demurrer, admitted that he was lawfully and equitably bound to convey to the proposed new company the whole of the land in question. He has in the same manner admitted that he has wrongfully retained a portion thereof as security for a sum of money which he seeks to extort from the complainants. There is no legal or equitable obligation on the part of the complainants, taking these admitted facts to be true, to restore to the defendant the property which he- admits does not belong to him, and which he also admits he was rightfully bound to convey to the corporation which now holds the title.

The complainants’ supplemental bill must therefore be held to state a lawful cause of action against the defendant. The demurrer must be overruled, with costs, with leave to the defendant to answer the complainants’ bill within twenty days, or in default thereof the bill will be taken as confessed.


text:
    William S. Voorhies, executor, &c., v. William Otterson.
    [Filed February 18th, 1904.]
    1. A will ordinarily speaks from the time of the death of the testator. If the expressions of the will indicate that the testator intends that any ■clause shall speak from a different date, it will be given that effect.
    2. If a legacy be given to an individual, not by name or other special designation, but by reference to certain characteristics, at a particular time, the person who has the characteristics at that time is the person entitled to the legacy, and it will then vest in him.

      .On bill, &c. Ex parte.

    This bill of complaint is .filed by William S. Yoorhies, executor and trustee under the last will of Nelson S. Hibbler, deceased, to obtain a decree instructing the complainant touching his duty in the performance of his trust in regard to the payment of certain moneys bequeathed by the will of the decedent.
    The will of the decedent testator, Nelson S. Hibbler, is dated the 15th day of August, 1887. The testator departed this life on the 8th day of March, 1888, and his will was proven on the 18th day of April, 1888, before the ordinary of the State of New Jersey, by the complainant, who took upon himself the burthen of executing it.
    The testator, by his will, directs the payment of his debts and makes certain specific bequests and devises. He then bequeaths and devises the residue of his real and personal estate-to his executor upon certain named trusts, which are, to pay certain annuities for ten years after the decease in semi-annual payments. In the second subdivision of his will he makes the' bequests upon which the executor seeks by his bill in this cause to be advised. The words of the will raising the questions here presented are as follows:

      “Second. Ten years after my decease I hereby direct my executor to-pay [here follows four legacies not affected by this suit]; then
    “5. To each of the children of my daughter Josephine Otterson the sum of two thousand dollars.
    “6. The issue of any deceased child to receive the share which the-parent would have received if living.
    “7. In case any of the persons entitled to receive any of the moneys, under this section of my will, are not of the age of twenty-one years, my executor is to hold the same, in trust, for them, for their use and benefit,, and pay over to them the principal sum as they each arrive at the age-of twenty-one years.”
    The bill also, sets out the seventh .subdivision of the testator’s will as follows:

      “Seventh. Ten years after my decease, and after deducting the above-named bequests and paying to each granddhild the amounts stated' above, the balance or residuary part of my estate is to be held by my executor and disposed of as follows:
    “The one-fourth part of the net income derived from the same to be paid semi-annually to my daughter Ellen Stryker during her life for her own maintenance and benefit, and after her death the one-fourth part of my estate is to be equally divided between her children or their issue; but in the case of the death of my daughter Ellen, leaving no children or their issue her surviving, then and in that case the said one-fourth part of the residuary part of my estate is to become part and parcel of my estate.

      “Eighth. Ten years after my decease the one-half of the three-fourths remaining of my residuary estate is to be equally divided between the children of my daughter Emma Yoorhies Abernethy, share and share alike, the representatives of any deceased child to have the share of his, her or their parent.

      “Ninth. Ten years after my decease the net income thereafter derived from the remaining one-half of the three-fourths of my residuary estate is to be paid semi-annually or as soon as practicable to my daughter Josephine Otterson, during her life,, and after the death of my said daughter Josephine the principal of the said one-half of the three-fourths of my residuary estate is to be divided equally between the children of my said daughter Josephine, share and share alike, the representatives of any deceased child to have the share of his or their parent. If, however, there be any child or children that have not attained the age of twenty-one years, then and in that case my executor is to retain that child’s or children’s share, and keep the same invested for the benefit and maintenance of said child or children during their minority, and at the age of twenty-one years the principal belonging, respectively, to them or either of them is to be paid to them.”
    The bill further alleges that the complainant, as executor, stated his fifth and final account in the prerogative court of this state in the year 1898, which was duly allowed; that, at the time of the making and allowing said account, Josephine Otterson, the daughter of said testator, had the following children living: Mary E., Ada G., Ellen J. and Willetta, all unmarried; and Elizabeth R. Reed, a married daughter. That Ellen Stryker (another daughter of the testator) had two children, Nelson R. Stryker and Joseph G. Stryker, and that the children of Emma Yoorhies Abernethy (another daughter of the testator) were Elizabeth R. Abernethy and Mary R. Abernethy and also the complainant in this cause.
    The bill further states that, before the accounting above named, the complainant had paid to such of the persons named in subdivision 2 of the said paragraph 6 of the will as had attained the full age of twenty-one years the specific bequests mentioned in that subdivision of the will, and as trustee thereunder had retained the sum of $2,000 each for Mary E. Otterson, Ada Gf. Otterson and Willetta Otterson, they then being under the age of twenty-one years.
    That said Mary E. Otterson has since -become of the age of twenty-one years and the complainant has paid her the said sum of $2,000.
    That said Willetta Otterson has recently departed this life, being of the age of twelve years; that Joseph E. Stryker has died since the payment to him of his bequest aforesaid, leaving him surviving Lester Stryker, his son, an infant of the age of about twelve years.
    The bill further states that William R. Otterson, the husband of Josephine and father of Willetta Otterson, deceased, insists that, as the next of kin ’of said Willetta, he is entitled to administer upon her estate and to ask and have the complainant, as executor and trustee, pay to him the said sum of $2,000, held by the complainant for the said Willetta pursuant to the directions of the will of said Kelson S. Hibbler. That Ellen Stryker, Josephine Otterson and Elizabeth R. Abernethy and Mary K. Abernethy insist that the said sum of $2,000 now forms a part and parcel of the residuary estate of said Kelson S. Hibbler and should be distributed among his devisees in the manner in his said will set forth.
    The bill further states that the complainant himself has an interest as one of the children of Emma Voorhies Abernethy, mentioned in the will, and that he feels himself unable properly to decide and determine to whom said $2,000 belong. He therefore prays this court to adjudge to whom said moneys are payable, whether to an administrator of said Willetta Otterson, hereafter to be appointed, or to the complainant as executor of the last will of the decedent, Kelson S. Hibbler, to distribute the same as part of his residuary estate, and for further and other relief, &c.
    A decree pro confesso has been taken against the adult defenclants. The infant defendants answer by their guardians-ad litem and submit their interests to the protection of the court.
    Depositions have been taken on notice, under which a certified copy of the will' of the deceased, Nelson S. Hibbler, has-been offered in proof. The facts narrated in the complainant's bill have also been proven. The cause’ came on to be heard ex parte.

      Mr. James P. Northrop, of counsel with complainant.
   Grey, V. C.

The complainant asks the determination of the effect of the will of the decedent, Nelson S. Hibbler, in making a bequest of $2,000 to Willetta Otterson, one of the children of Josephine Otterson.

Willetta Otterson is shown by the depositions to have been born in the year 1890. The testator's will, a copy of which, is offered in evidence, is dated August 15th, 1887. He died March 8th, 1888, and his will was proven on April 18th, 1888. Willetta Otterson was born more than two years after the testator had made his will, and more than one year after the-testator had died. Willetta died on December 26th, 1902, which was more than ten years after the death of the testator.

The essential question in the cause is, did the title to the-$2,000 legacy vest in Willetta Otterson? Whether it did-or did not, depends upon the intent of the testator as expressed in his will.

It is true that Willetta had not come into existence either when the will was made by the testator or when it spoke, at the-time of his death, but it should be noted that the testator, in phrasing his intended gift, did not mention any of Josephine-Otter son's children by name, and that, although the legacies-were bestowed upon them individually and not as a class, yet the sole characteristic required of the several legatees was that each should be a child of his daughter Josephine Otterson. This mode of expressing his purpose shows that, in giving these-legacies, the testator did not have in mind any particular child or children of his daughter Josephine ‘Whom he wished to benefit, but that he intended to confer these legacies upon each child that Josephine either had or might have. The quality which secured the legatee his favorable consideration was neither age, sex nor present existence. The only thing he required was that each legatee should be Josephine’s child. The testator does not limit the number of children who may take. Any number of Josephine’s children would, by the mere fact of birth, come within the possibility of meeting the requirement. This included not only those children of Josephine who were in existence when the will was made and proved, but those who might come into being afterwards.

The testator postponed the payment of these legacies until ten years after his death. The words which direct the payment of the legacy at the end of the ten years are the only words of gift. The testator obviously had in contemplation as his beneficiaries all those who might be children of Josephine at the time the gift should mature.

A will in such case speaks not from the time of the death of the testator but from the time when, by the terms of the particular will, the testator intends it shall speak. Phillipsburgh v. Bruch’s Executors, 10 Stew. Eq. 485.

There is a class of cases in which the testator gives a legacy to a person not as persona designata but under a qualification and description at any particular time. In such cases the person answering the description at that time is the rightful claimant. The leading case on the point is Devisme v. Mello, 1 Brown Ch. C. *537; to the same effect, Congreve v. Congreve, 1 Brown Ch. C. *530; Gilmore v. Severn, 1 Brown Ch. C. *582; Ayton v. Ayton, 1 Cox Ch. 327; Middleton v. Messenger, 5 Ves. 140. In the last-cited ease there was a bequest to testator’s wife for life, then an appropriation of a part to answer legacies, the' residue was given “to be equally divided among brothers’ and sisters’ children.” Sir Richard Pepper Arden, master of the rolls, approving Devisme v. Mello (ubi supra), declared that under such a disposition the fund was divisible not only among those legatees living at the testator’s death, but also among such as might be born afterwards but before the fund was distributable, and that the several legacies were vested interests.

The principle that where a legacy is given to a class, or to individuals having certain characteristics, at a certain time, all will be included who answer the description at the time the gift shall take effect, is also declared in a number of cases in this country. Swinton v. Legare, 2 McCord Ch. 440; Myers v. Myers, 2 McCord Ch. 256; Jenkins v. Freyer, 4 Paige 47; Cole v. Creyon, 1 Hill. Ch. 311.

The words of this will clearly show that the testator intended these legacies to each of the children of Josephine, to vest at the end of the ten years from his death. The words which direct payment are the only words of gift, and the general rule is that under such conditions the vesting takes place when the time of payment arrives. 2 Wms. Ex. *1232; Van Dyke v. Vanderpool, 1 McCart. 198. If there be special circumstances which show that the payment is postponed for the convenience of the estate, the gift may even be held to vest at an earlier period. Ib. This exception to the general rule has no application to the terms of this gift unless clause 7, hereinafter referred to., may make it applicable.

The counsel for the complainant suggests that the time when Willetta’s'legacy became payable to her was not at the end of ten .years after the death of the testator but (under clause 7 of the will) when she became twenty-one years of age, and that, as she died before that time, her legacy lapsed and fell into the ultimate residue.

A reading of the will shows that the legacies for each of Josephine’s children were in express terms directed to be paid to them ten years after the testator’s decease. This direction for payment is the gift of the money, and title to each legacy of $2,000, vested at the end of the ten years. Clause 7 does not indicate a different intent but rather confirms this view. In that clause the testator declares that the issue of any deceased child should receive the share which the parent would have receivecl if living. That means, of course, that if any legatee died before the end of the ten years, leaving issue, that issue should, at the end of the ten years, receive the share to which the parent would then have been entitled had the parent been living at that time. The next paragraph declares that if any persons entitled to receive any of these legacies are not of the age of twenty-one years, the executor is to hold their moneys “in trust for them for their use and benefit, and pay over the principal sum as they each arrive at the age of twenty-one years.” Here is a declaration of the testator’s intent, that at the end of the ten years the legatee should become entitled to receive their legacies. The same thing is indicated by the testator’s arrangement for the division of the fund into the several legacies at the end of the ten years. The direction that the moneys to which any minors might be entitled should be held by the executor in trust, does not indicate any purpose to postpone the gift, for the trust did not preserve the property for any other person, but only prescribed the manner in which the money, now the property of the infant legatee, should thereafter be cared for. The infants, at the end of the ten years, became entitled in the sense that their title to their legacies then vested, but the executor was to hold their moneys in trust for them for their use and benefit.

This provision, taken in connection with the subsequent reference to the payment of the “principal sum,” shows that the testator intended that title to the legacy should be in the infant legatees, but that the trustee should use the income from the legacy of each minor legatee for his or her support during the minority, and should pay over the principal sum of the legacy when the infant arrived at full age.

The effect of these provisions of the will was, that the infant legatees became, at the end of the ten years after the testator’s death, entitled to the sole beneficial use of the income from their legacies, with the right to have the principal sum delivered to them when they came of age. The postponement of delivery of the principal sum of the legacy was obviously for the convenient management of the property, and is within the principle above noted, that such a postponement will not prevent a vesting.

Under this construction of the effect of the testator’s legacy to Willetta Otterson, the equitable title to that legacy vested in Willetta at the end of ten years after testator’s death. This period was March 8th, 1898. Willetta was then alive and received the title to her legacy. She afterwards died under the age of twenty-one years. From and after March 8th, 1888, when the equitable title to the $2,003 and 'the right to the use of the income from it vested in her, the executor held it iu trust for her benefit. As she died before she came of age, her legacy, like any other property of an infant decedent, would go, after due course of administration and ascertainment of the surplusage, to her next of kin.

I will advise a decree instructing the executor according to the views above expressed.