text:
    Samuel Silverman, complainant, v. Rudolph Klussmann, defendant.
    [Decided October 1st, 1925.]
    1. Wihere real estate stands in the name of one, a bill to establish a trust in the property in favor of another may be established by proof of circumstances tantamount to positive proof tending to evince that the person to whom the legal title passed ,wias, in fact, not the person who was entitled according to the real intent and design of the parties to become the real or beneficial owner, thereby imposing upon the actual vendee the status of a constructive trustee.
    2. Evidence examined and held that the proof in this case did not show the existence of any trust in favor of the complainant.
    On bill, &c.

      Mr. Scual Nemser, for the complainant.

      Mr. Franlc W. Eastings, for the defendant.
   Church, Y. C.

This is a bill to impress a trust in favor of the complainant for a one-half interest in property now standing in the name of the defendant. The cause was heard in the court of chancery, and at its conclusion the bill was dismissed. Hpon complainant’s appeal the court of errors and appeals set aside the decree and ordered a rehearing, and directed that the testimony of the vendors should be received.

The court says: “Since a trust of this character may be established by proof of circumstances tantamount to positive proof, tending to evince that the person to whom the legal title passed was, in fact, not the person who was entitled according to the real intent and design of the parties to become the real or beneficial owner, thereby imposing upon the actual vendee the status of a constructive trustee.”

Laches was not pleaded, but the court of errors and appeals held that the parties were not surprised or prejudiced by the introduction of evidence to that effect. The answer as it now stands is amended to formally set up laches.

To understand the situation it is necessary to briefly recapitulate the facts. The bill was filed by Silverman, in 1922, seeking to have a deed to defendant, Klussmann, dated November 3d, 1915, and promptly recorded, held in trust for Silverman and one Charles W. Ostrom. Ostrom disappeared in 1919 or 1920, leaving his affairs in great confusion, and careful search of his papers failed to disclose anything bearing on this transaction. The complainant saw Ostrom in Paris in 1921, and while he was at Camp Dix, before that time on visits to .Jersey City he also saw him, but he made no efforts to inquire into this matter or see Klussmann. He states that he trusted Ostrom completely. Two years after Ostrom’s final disappearance, Silverman filed the bill. He says that he and Ostrom were “fifty-fifty partners” in the property. It is admitted that the purchase price was $750. Silverman says he gave Ostrom the money in installments before the purchase, and then, again, that he borrowed the money to put the deal through, and that he advanced Ostrom for this purchase $1,200. He, however, claims only a half interest in a property which cost $750. He had numerous other dealings with Ostrom. Silverman admits that he never knew Klussmann.

Pursuant to the direction of the higher court, Mr. and Mrs. Lyons were produced at the rehearing. They are people of limited intelligence, and their testimony was not in any sense convincing. They could not remember just what they received, and they say: “Then Mr. Ostrom he went out and in a few minutes he came back and brought some more money and put it on the table.” There is no proof whatever as to how much Ostrom advanced and what, if anything, Silver-man advanced. These were the only additional witnesses for the complainant.

The defense is that Mr. Ostrom purchased this property with his wife’s money and conveyed it to a nominee appointed by her brother. Mrs. Ostrom is a woman of intelligence, and her testimony impressed me as true. She owned considerable property, and, before her husband’s financial difficulties, indictment and disappearance, he looked after all her affairs, deposited her funds, prepared checks for her to sign, and so forth. She says that she cannot remember from what bank she drew the money for the purpose of this transaction. That is not surprising, as the matter was seven years old at the time of the filing of the bill. However, she is positive that she advanced the money and always considered the property as hers.

An insurance agent was produced who testified that he placed insurance on the property at the direction of Klussmann, and kept it thereon from 1916. Ostrom alone was present when the deed was finally passed. Why should Silverman have advanced $1,200 for a property admittedly selling for $750 ?

The court of errors and appeals has indicated that “circumstances tantamount to positive proof” must be adduced. See, also, Cyc., Trusts 11 B 5 (c) 166; Parker v. Snyder, 31 N. J. Eq. 164, 169; Tunnard v. Littell, 23 N. J. Eq. 264; 26 R. C. L., Trusts §§ 75, 77.

I have carefully weighed the evidence in this case and have noted the attitude of the witnesses as they appeared on the stand. As I have said, I am impressed with the straightforward story of Mrs. Ostrom, corroborated by other witnesses, to wit, her two brothers. The witnesses for complainant were vague and indefinite, to say the least, and their stories do not impress me. '

Another remarkable thing, to my mind, is that the complainant, although he admits he saw and talked with Ostrom several times from 1915 to 1920, should have made no effort to settle the controversies about this1 title until Ostrom disappeared and all the direct documentary evidence in the case had been lost.

I cannot bring myself to believe that, under the proofs presented in this case, a trust should be impressed upon this property. I believe, as a matter of fact, money was advanced by Mrs. Ostrom, as she says, and title taken by her direction in the name of her brother.

I shall therefore advise a decree dismissing the bill, with costs and counsel fee. I will hear counsel in this matter.


source: Caselaw Access Project

author: Church, Y. C.

license: Public Domain

text:
    Anna L. Harvey, complainant, v. John D. Randall, defendant.
    [Decided October 6th, 1925.]
    1. A deed, in absence of other circumstances, speaks from date of its delivery.
    2. Agreement for sale, filed in miscellaneous records without acknowledgment, is improperly recorded under P. L. 1898 p. 690 § 52, as amended Iby P. L. 1901/ p. 70, and section 21 as amended by P. L. 1917 p. 296, requiring such agreements to be recorded as deeds, and a purchaser for value cannot be charged with laches in failing to discover it.
    3. A Us pendens, filed on same day and time as filing' of deed by purchaser from defendant, is not a proper notice to filer of deed under P. L. 1925 p. 1/16, providing that summons or other process shall not be constructive notice to a hona fide purchaser until written notice of pendency of suit is filed, and will be discharged of record so far as it affects the grantee who files his deed for record at or before the time the Us pendens is filed.
    On motion.

      Mr. Ward Kremer, for the complainant.

      Messrs. Donohue & O’Brien, for the defendant.
   Church, Y. C.

This is a motion to discharge of record a lis pendens in the above-entitled ease, on May 27th, 1925, in the office of the clerk of Monmouth county, giving notice of a suit to enforce specific performance of a certain contract covering premises on Seventh avenue, in Asbury Park.

On May 8th, 1925, John D. Randall, defendant, sold to Maeze W. Bianchi these premises, and on that day gave her a deed for the premises for the consideration paid as set forth in the affidavits. On May 26th, Anna L. Harvey, complainant in this ease, filed a bill seeking specific performance of an agreement with Randall covering the same property. On May 27th the clerk of Monmouth county received by mail the deed which conveyed the property to Maeze W. Bianchi and the Us pendens. He recorded each one as of May 27th, 1925, at eight a. m.

The Lis Pendens act, amendment of 1925 (P. L. 1925 p. k!6 ch. 168), provides that—

“Neither the issuing of a summons or subpcona, or other process, * * * shall be deemed * * * constructive notice to any bona fide purchaser * * * until the plaintiff or complainant in such action, or his attorney or solicitor, shall have first filed in the office of the clerk of the court of common pleas * * * a written notice of the pendency of such suit.”

The suit was filed on May 27th. The Us pendens and the deed were filed simultaneously on May 27.

(1, 2) It is alleged that the deed to Bianchi was dated on May 8th. A deed, unless there are other circumstances, speaks from the date of its delivery. It should be noticed that the contract on which Harvey is suing Randall was an agreement of sale, and it was recorded in the office of the clerk of Monmouth county on May 9th, in book H of miscellaneous records, page 368. It is contended that this filing should have been notice to Bianchi of the prior contract.

Section 52 of the act respecting conveyances (P. L. 1898 p. 690), as amended in P. L. 190k p. 70 (2 Comp. Sicd. p. 1552), provides that—

“No deed or instrument of the nature or description set forth in the twenty-first section of this act, heretofore or hereafter to be made and executed, shall be recorded in the office of any clerk of the court of common pleas, unless the* execution of the same shall have been first acknowledged or proved and certified in the manner hereinbefore directed except as herein stated, and except conveyances made by a sheriff or other officer or auditors in attachment, in pursuance of a decree, judgment, execution or order of a court, which may be recorded as heretofore.”

Section 21 of the act respecting conveyances, as amended (P. L. 1917 p. £96), and referred to in section 52, includes in the list of instruments to be recorded “Agreements for Sale.”

In addition to the above requirement, the act respecting conveyances provides that, when such “Agreements for Sale” are recorded, they shall be recorded under “Deeds.” It will therefore be seen that this alleged agreement was not recorded , under “Deeds,” but under “Miscellaneous Records,” and that it had no acknowledgment. I, therefore, think that it was improperly recorded, and that Bianchi was not in laches for not discovering it under the caption “Miscellaneous Records,” when it should have been recorded under the caption “Deeds.”

(3) Assuming the deed to Bianchi and Us pendens were filed simultaneously, as the records show, the question arises, Is this Us pendens a proper notice?

I cannot see how a Us pendens filed on the very same day, hour and minute that a deed was filed can possibly be a notice to the filer of the deed. Apparently, Bianchi searched the records and could find no prior contract recorded, because it was not acknowledged, as it should have been, and was not recorded in the place where the act requires it to be recorded, and, therefore, title under his deed was not affected by it.

I do not think there is any reason why the recording of the lis pendens is binding on Bianchi, and I shall therefore advise a decree that the Us pendens shall be discharged of record in so far as it affects Bianchi.


author: Church, V. C.

text:
    Elizabeth Gondas, petitioner, v. Peter Gondas, defendant.
    [Decided October 13th, 1925.]
    The Divorce act of 1923 being silent as to the required residence of the pai’ties, the act of 1907 is still in force, requiring a two years’ residence.
    On petition for divorce.

      Mr. Jack G. Richer, for the petitioner.

      Mr. Harry linger, for the defendant.
   Church, V. C.

This is a motion to dismiss an original petition and an amended petition for divorce. The ease was brought on the ground of extreme cruelty under chapter 187 of the acts of 1923. P. L. 1928, p. 494.

The^ original petition was filed on December 23d, 1924, and an amended petition on June 11th, 1925. In both the original petition and in the amended petition it is alleged: ‘‘Petitioner was a bona fide resident of the State of New Jersey when this cause of action arose, and has ever since continued to be such resident. It failed, however, to allege that petitioner has lived in the State of New Jersey for two years before the petition and amended petition were filed.

The contention is that both the original petition and the amended petition are defective because neither stated the necessary jurisdictional clause.

In the case of Blauvelt v. Blauvelt, 59 Atl. Rep. 567, Vice-Chancellor Pitney said: “The original petition in this cause was radically defective, in that it did not state that petitioner had lived in the State of New Jersey for two years next before the petition was filed.”

In the case of Metzler v. Metzler, 69 Atl. Rep. 965, it was held: “There is here no averment sufficiently showing a continuing residence of either party in this state during two •years of the desertion and until the filing of the petition.”

The act of 1923 is silent as to the time of residence. Counsel for the petitioner argues that in spite of this silence it was the intent of the legislature to reduce the time of residence as wrell as the time after which cases of extreme cruelty may be brought for divorce. The Divorce act of 1907 provides as follows:

“(a) When, at the time the cause of action arose, either party was a Iona fide resident of this state, and has continued so to be down to the time of the commencement of the action, except that no action for absolute divorce shall be commenced for any cause other than adultery, unless one of the parties has been for the two years next preceding the commencement of the action a Iona fide resident of this state.”

I cannot believe that it was the intent of the legislature to in any way interfere with the question of residence, but merely to reduce the time in cases of extreme cruelty after which an action of divorce can be instituted. The act of 1923 being silent as to the time of residence, it is my opinion that the provisions of the act of 1907 apply, and the two acts must be construed together. I have not been able to find any reported case on this point, but in a memorandum by Advisory Master William J. Backes,.in the case of Carosone v. Carosone, filed May 8th, 1923, docket 53/403, he holds substantially as I have indicated.

I shall therefore advise a decree dismissing the petition and amended petition for the reasons I have stated.


author: Chukoh, V. C.

text:
    Elvira Wildeman, complainant, v. Walter W. Wildeman et al., defendants.
    [Decided October 14th, 1925.]
    1. Where a man had lands conveyed to another in order to prevent his wife’s dower attaching thereto, the 'wife imay file a bill in equity to set aside or reform the conveyance.
    2. Where lands were conveyed by a man to a third party without the knowledge of a woman who afterwards married him, expecting to receive something in the way of support from the lands, which lands were afterwards reconveyed to the 'husband for life, remainder over to Ms children, the property was his equitably, and his wife has dower therein.
    On bill, &e.

      Mr. A. Milton Jacobs, for the complainant.

      Mr. Harvey G. Stephenson, for the defendants.
   Chukoh, V. C.

This is a bill by complainant against the children of her deceased husband in aid of dower. The facts, briefly, are these: In 1908 August Wildeman was the owner of land on Fifteenth avenue, in the city of Newark. He apparently did not have the legal title in his name. It was conveyed to one Hedwig Kraus in 1909, and the evidence shows that it was taken ill her name to prevent the dower of his then wife, Helen, from attaching. All the children living at home were under the age of twenty-one years except Walter. The moneys for the erection of these buildings were those of August Wildeman, although Walter says that he helped in a financial way. He, however, did not give any specific item of expenditure or show any payment of money. Under these circumstances, there could have been no trust in his favor. A resulting trust arises at the time of the conveyance. Hedwig Kraus held title to the land until 1910, when she conveyed it to Walter Wildeman.

There is in evidence a paper dated August 5th, 1910, two days after the deed to him was recorded, in which he appoints his father his agent to rent and lease the property, collect rent, and agrees to convey the property to such person as August Wildeman directs, and to give deeds therefor.

This, it seems to me, proves that August was the beneficial owner, and that the paper in evidence is a declaration of trust in his favor.

Walter continued to hold the legal title until March 5th, 1923, when he conveyed it to one Baney, a stenographer, who reconveyed to August for life, and remainder to his children. During all of this time August collected the rents, assumed control of the propert}*-, acted as its owner, paid water bills, tax bills, interest on mortgage and repair bills; also signed leases; and finally ejected his son, Walter, from the premises in which Walter was living and paying rent to his father. In 1913 Walter conveyed a portion of the property, called the garage property, to Elvira L. Curtis, now Elvira Wildeman, the complainant herein.

She says that it was conveyed because she had agreed to marry August when he was free; and a letter of his, which she says was written prior to her return to his household, was introduced in evidence, in which he said, “I want to give you the deed for the garage -so you have something to remember me after I am gone.”

In 1914 she reconveyed the garage to August because, as she said, she had broken her engagement and ought not to retain the property. The deed remained unrecorded until March 5th, 1923, when it was put on record, and then August conveyed that property to the stenographer, who, in turn, made the conveyance back to August for life; the remainder to his children, as above stated.

Walter admits that his father urged him to reconvey the property to him. He advanced three theories for this conveyance' — first, the father wanted the property back; second, the father -would give $3,000 for a release; third, he wanted all his children to share in the property. All of these theories cannot, of course, be true.

Twelve days after the recording of this deed the parties were married, and it appears from the evidence, and agreed by counsel, that at that time Helen, the second wife, had been dead for nearly two years. It also appears that August died about a year after this date.

The complainant contends that she married August Wildeman on his assurance that he was the owner of this property and that she would be taken care of from its proceeds as long as she lived.

He died without a will, and, therefore, unless he had an equitable estate in this property, her dower could not attach.

The claim of the defendants is that the deed, having been made to Walter to defeat the dower right of the second wife, Helen, was a fraud participated in by the complainant, or at least with her knowledge, and that she cannot now come into equity to have the deed reformed.

The children claim that they did not know that their father contemplated a third marriage, although Walter admits that he went to see a Mrs. Samuels to ask her to use her good offices with the complainant in persuading her to marry his father. And there is also evidence that the complainant returned to August Wildeman’s house and lived there a month or two before the marriage.

I do not think that the question of the alleged fraud upon Helen, the second wife, is of importance, because at her death before her husband any right she may have had in the property ceased. Neither do I think that the defendant’s contention that the promise of August Wildeman to marry the complainant is void, because it was made during the lifetime of the second wife. The reason that I do not attach importance to this contention is that it is my belief that the promise to marry was renewed after Helen’s death, and, therefore, a new contract came into being, which was entirely valid irrespective of any invalidity which might attach to a promise made during the lifetime of another wife.

The authorities are ample to sustain the proposition that a wife may file a bill in equity to set aside or reform conveyances made by her husband in anticipation of his marriage and in an effort to defeat the right of the wife. I will cite a few such cases.

In Smith v. Smith, 6 N. J. Eq. 615, a bill was filed by the widow showing that previous to her marriage her husband owned land; that before she consented to marry him he told her he had houses in Trenton; that if she would marry him she would always have a good home. Eelying on this, and not knowing that he had alienated the property, she married him.

The chancellor, on page 521, said:

“On the day of the marriage between the complainant and her late husband, and just before the marriage, he, without the knowledge of the intended wife, for the consideration of one dollar, conveyed certain real estate to trustees, in trust for his own use during his life, and, after his death, in trust to receive the rents and pay them to his daughter Mary, a daughter by a former wife, during her life, and, after her death, in trust for his three sons.
“I cannot doubt, on the evidence in the case, that the object of the conveyance was to defeat the complainant of the right she would acquire in his estate by the marriage. The other ground or reason now set up for the making of the conveyance, namely, the providing for his imbecile daughter after his death, was not, it appears to me, the real motive.
“I am of the opinion that a voluntary conveyance by a man, on the eve of his marriage, unknown to the intended wife and made for the purpose of defeating the interest which she would acquire in his estate by the marriage, is fraudulent as against her. I see no sound distinction between this case and the like conveyance by a woman under like circumstances. Decree for complainant.”

In Brown v. Brown, 82 N. J. Eq. 40, Chancellor "Walker reviews the cases on this point and cited Smith v. Smith. He says:

“By the common law a widow was entitled to dower in all the lands whereof her husband was seized in fee-simple at any time during coverture. Our statute enlarges the right, and endows her of all lands whereof her husband ‘or any other to his use/ was seized of an estate of inheritance at any time during coverture. Gomp. Stat. p. 2048.
“The doctrine of courts of equity is that equitable estates are considered to all intents and purposes as legal estates. Cushing v. Blake, 30 N. J. Eq. (3 Stew.) 689.
“In Mershon v. Duer, 40 N. J. Eq. (13 Stew.) 333, and in Radley v. Radley, 70 N. J. Eq. (4 Robb.) 248, a widow’s right of dower in lands held by another in trust for her husband was affirmed.
“In re Alexander, 53 N. J. Eq. (8 Dick.) 96, Vice-Chancellor Green, without attempting to define inchoate right of dower, cites cases showing the manner in which it has been entertained by various jurisdictions, and concludes upon the authority of Wheeler v. Kirtland, 27 N. J. Eq. (12 C. E. Gr.) 534, ‘that it is an interest in the land from the time of the seizin of the husband is the law in this state.’
“That a wife, by reason of her inchoate right of dower, has such an interest in her husband’s lands which a court of equity will protect, has frequently been asserted.
“In Wheeler v. Kirtland, supra, the property of the husband was condemned for public use, and upon a bill filed by the wife, it was held that she, by reason of her inchoate right of dower in the land, had an interest in the award which equity would secure to her.
“In Petty v. Petty, 4 B. Monr. 215, the wife filed a bill a few days after her marriage, to set aside a conveyance made by her husband in anticipation of the marriage and in fraud of the wife’s rights. The court decreed the conveyance void as against her right, and directed a reconveyance to her of one-third for life to be enjoyed by her after her husband’s death. In this case it was held that the inchoate right of dower of the wife was such an interest as to entitle her to the protection of a court of equity.
“In Burns v. Lynde, 6 All. 305, a deed in which it was made to appear that the wife joined with her husband was set aside as against her inchoate right of dower.
“In Madigan v. Walsh, 22 Wis. 501, it was held that an inchoate right of dower is such an interest in the land as will enable the wife to maintain an action to establish such a contingent right, and remove a cloud fraudulently intended to be put upon it.
“In Clifford v. Kampfe, 147 N. Y. 383, it was held that cthe inchoate right of dower is a valuable, subsisting, separate and distinct interest which is entitled to protection, and for which the wife may maintain a separate action.’ In this case a deed as against the wife’s interest was set aside at her instance as a forgery.
“In Buzick v. Buzick, 44 Iowa 259, a sheriff’s sale to the husband’s son, procured by the fraudulent conduct of the husband, was set aside as against the wife’s inchoate right of dower.
“In Smith v. Smith, 6. N. J. Eq. (2 Halst.) 515, a widow was awarded dower in lands which her husband conveyed just before marriage, and in fraud of her rights.
“In re Turner v. Kuehnle, 70 N. J. Eq. (4 Robb.) 61, a demurrer was overruled to a bill filed by a widow for dower in lands which her husband caused to be fraudulently sold under a foreclosure sale to which she was a party. The difference between the bid and the value of the property was paid by the purchaser to the husband, and in overruling the demurrer Vice-Chancellor Pitney said that the fraudulent conduct of the husband could not derpive a wife of her inchoate right of dower.
“It is the common practice of this court to conserve the wife’s inchoate right of dower in the surplus moneys in mortgage foreclosures and in the husband’s dividends of the sale of lands in partition suits.
“The equitable fee in the land involved in this suit is in the husband. He paid the purchase price. Cutler v. Tuttle, 19 N. J. Eq. (4 C. E. Gr.) 549. In this estate the complainant has an inchoate right of dower.
“None of the foregoing eases deal with the exact point raised on this motion. Some sustain the widow’s dower in lands held in trust for her husband, while others hold that a wife may maintain an" action to protect her inchoate right of dower in lands, the legal title of which was in her husband, and of which right it was attempted to deprive her by lawful means. Upon principle supported by the above authorities, it seems to me that a wifé’s inchoate right of dower in lands held by another to the use of her husband, may be secured to her by a bill in equity. Unless the wife acts diligently the holder of the legal title may convey the estate to an innocent purchaser, and thus estop her from claiming her dower when it should be consummate.”

See, also, American Surety Co. v. Conway, 88 N. J. Eq. 370, and Pinkinson v. Pinkinson, 93 N. J. Eq. 583.

Under these decisions, and carefully considering the admitted facts in the case, it is my opinion that August Wildeman persuaded this complainant to marry him on the understanding that he had property from which she might reasonably expect income and support during her lifetime; that the property was equitably his although the legal title was in his son, Walter, and that he endeavored to get back the legal title of the property in order to fulfill his promise made to the complainant.

I shall therefore advise a decree that the complainant is entitled to have her dower assigned out of the lands in question. The amount of this dower interest should be fixed by a special master, whom I will appoint, when counsel submit to me the form of the decree.


text:
    Mildred M. McCoy (Flournoy), petitioner, v. William J. McCoy, defendant.
    [Decided October 7th, 1925.]
    Where the custody of a child was awarded in a divorce suit to the father, with the right of visitation to the mother, if the mother abuses that right, the court will modify its decree in the interest of the welfare of the infant, and not permit the mother to have access to it, at least until she has shown that she has led a proper life, and is fit to visit the child.
    On motion to modify decree.

      Messrs. Kalisch & Kalisch, "for the petitioner.

      Messrs. Howe & Davis, for the defendant.
   Church, V. C.

This motion grows out of a suit between William J.'McCoy and his wife, Mildred M. McCoy, for divorce. The husband sued the wife for divorce on the ground of adultery, and the court decided in the husband’s favor. The case was more than usually unsavory, and the woman’s conduct was shown to be anything but proper.

During the pendency of the divorce proceedings, the defendant, Mildred McCoy, was indicted with her paramour, one Flournoy, whom she afterwards married, for adultery. They were brought before a jury and convicted. It was shown that the woman drank, created disturbances and was absolutely unfit to have the custody of the child, a daughter five years old. I therefore awarded the custody of the child to the father, but granted a right of visitation on the part of the mother. This, she wantonly abused, making scenes at the house and frightening the child into a serious nervous condition. These facts being presented to me by affidavits, and after hearing counsel, I directed that the decree be modified, denying her any right of visitation. Her own father and mother made affidavits as to her character and conduct, testified against her and urged the court not to permit her to have access to the child. She now applies to this court for a renewal of this right of visitation.

Under normal circumstances, a mother, in the first place, would have the custody of a child of such tender years, that is, five years old, and even if the court denied this she would be allowed reasonable access to the child. But this is an extreme and abnormal case, and all those who have any knowledge of the facts and circumstances unite in saying that the mother should not be allowed to see the child.

The welfare of the child should, after all, be first considered, and I am convinced that it would do the child no good, and would probably do her harm, if the mother were allowed to visit her. The affidavits show that she now has a good home with her grandmother, who was formerly a nurse and understands thoroughly the upbringing of a child; that the father is in every way a respectable man, and has ample means to take care of his daughter.

The mother has now married hex former paramour, and it may be that she has begun a different and more respectable manner of life. However, at present I cannot see nry way clear to modify in any way the decrees and orders I have hitherto made. It may be that hereafter, on proper proofs that she has for some time led a proper life, I may consider a modification, but I cannot do so at present, harsh as this decision ordinarily might seem.

I shall therefore deny the motion.


text:
    Mary Babirecki, by Stephen Babirecki, her next friend, and Stephen Babirecki, individually, complainants, v. Andrew G. Virgil, Frances Virgil, Louis J. Virgil and Mamie Virgil, defendants.
    [Decided October 17th, 1925.]
    1. Where a transaction is capable of two constructions, one that comports with honesty and one with dishonesty, the former should be adopted by the courts.
    2. Where five witnesses (all who know about the transaction) testify that the transaction was bona fide, a deed which was the result of the transaction should not be set aside.
    On bill, &c.

      Mr. John V. Laddey, for the complainants.

      Mr. Frank B. Bozza, for the defendants.
   Church, Y. C.

This is a rehearing of a case which was sent back to the court of chancery by the court of errors and appeals for certain errors in the court below.

The facts of the ease, as stated in the opinion of the higher court, are as follows:

“The bill was filed to set aside, as fraudulent, a deed of conveyance for premises located in the city of Orange. The deed was made on May 5th, 1921, by Frances Yirgil and Louis Yirgil, her husband, to Mamie Yirgil, the wife of Andrew C. Yirgil. Mamie Yirgil and Frances Yirgil had been the owners of the property as tenants in common. The effect of the deed in question was to vest the entire ownership of the property in Mamie Yirgil. The bill of complaint alleges that on April 2d, 1921, the complainants Mary Babirecki, by her next friend, Stephen Babirecki, her father, and Stephen Babirecki, individually, commenced an action in the Essex county circuit court against Andrew G. Yirgil, Erances Yirgil and Louis Yirgil, as partners, to recover damages for injuries sustained by Mary Babirecki, an infant three and one-half years of age, as the result of an accident alleged to have been due to the negligence of the defendants, and also to recover the damages sustained by the father, Stephen Babirecki, as a result of the accident to his child. The accident occurred on January 28th, 1921. The case was tried on Eebruary 10th, 1922, and resulted in a verdict in favor of the child for $4,000, and a verdict for the father for $1,068, which was subsequently reduced to $568. Judgments were entered and execution in the usual form tested on April 5th, 1922, were issued and delivered to the sheriff of Essex county, who was unable to find any goods, chattels or lands of the defendants upon which to levy. The executions were returned by the sheriff wholly unsatisfied. The personal property of the partnership had been mortgaged to one Eose Cursi at the time of the conveyance to Mamie Yirgil of the interest of Erances Yirgil in the real estate. The deed of conveyance to Mamie Yirgil was a warranty deed. The consideration stated in the deed was one dollar and other good and valuable consideration. It had affixed thereto revenue stamps to the amount of one dollar. The answer filed by the Yirgils to the bill of complaint set up that the deed of May 5th, 1921, was made in pursuance of an agreement in writing made between Erances Yirgil and Mamie Yirgil, dated August 16th, 1917; that the deed by which Erances Yirgil became seized of an undivided one-half interest in the premises was not supported by any consideration from Erances Yirgil, and was conditional upon the payment by Erances of $2,500 within three years; that should Erances fail to pay this sum she was to reconvey her interest in the property to Mamie Yirgil. The agreement of August 16th, 1917, was produced at the hearing. It was written upon a leaf taken from an old account book. It was, apparently, drawn by an unskilled person. It bore upon its face the evidence of being a home-made document. A photostat copy of it is embodied in the record. The purport of the agreement appears to be that if Frances Virgil does not pay to Mamie Virgil interest annually at six per cent, on $2,500 and make payments to her of $2,500 within three years, then Frances is to deed her interest in the premises situate on Hill and Commerce streets, Orange, to Mamie. Counsel for the complainants attempted to make a spirited attack upon this writing, especially as to the authenticity of its date, by cross-examination of the parties thereto as to why the agreement had been drawn at home, the date when drafted, the origin of the paper upon which it was written, the ink and pens used in its drafting, the consideration and the facts and circumstances surrounding its execution.”

The court held as to the question of law as follows:

“When a tort claimant has reduced his claim to judgment, he may attack a voluntary conveyance made after the liability arose and before suit was brought to defeat his debt, on the theory that such judgment, when once obtained, relates back and establishes a debt as of the time when the original cause of action accrued.
“The burden of proving, when attacked as fraudulent, the consideration of a deed, where no consideration was paid at the time of the conveyance, is upon the grantee.
“Cross-examination on matters either directly in issue or directly relevant to the issue is a matter of right, and its exclusion error.”

Complying with the direction of the court of errors and appeals a rehearing was had, and both the complainant and the defendant were heard.

The complainant confined his testimony at the rehearing to the introduction of certain documents bearing on the title to the property in question and testimony admitted by stipulation and the production of a member of the bar, whose testimony was unimportant. The defendants produced five witnesses, who testified as to the circumstances surrounding the making of the agreement of August 16th, 1917.

These are all the living witnesses to this transaction, and their testimony as to its dona fides was unshaken on cross-examination. Every opportunity was given to the complainant to produce additional testimony, and he was allowed the fullest latitude in his cross-examination.

The opinion of the court of errors and appeals says: “The vice-chancellor said: ‘The crux of the case is the alleged agreement between Mamie and Frances/ This was true.”

That agreement was vigorously attacked and closely scrutinized at the rehearing, but the witnesses were positive in their statements as to its date and the facts and circumstances surrounding its drafting and execution.

I cannot escape the conclusion that this agreement was made when the witnesses said it was made and for the purposes indicated therein and testified to by these witnesses. Should I hold that this transaction was fraudulent, I should have to find that all the witnesses who testified were guilty of perjury.

In the case of Gray v. Folwell, 57 N. J. Eq. 446, it was held that “where a transaction is capable of two constructions, one that comports with honesty and one with dishonesty, the former should be adopted by the courts.

Having found that this agreement was a dona fide one, made at the time and for the purpose as testified, the question arises as to whether the deed, which grew out of this agreement, should be set aside. The agreement sets forth a consideration for the deed in that Frances was to pay to Mamie $2,500 within three years, and should she fail to do so, she was to reconvey her interest to Mamie. The testimony is clear that she failed to make these payments, and on demand of Mamie she reconveyed her interest in the property on May 6th, 1921. The agreement of 1917 antedated the suit in the circuit court by nearly four years, which was long before the accident that was the basis of the suit. Assuming, then, that the complainant was a preexisting creditor, at which time Mamie was also a pre-existing creditor, in the absence of fraud on the part of the grantee and due to a valuable consideration evidenced by the agreement, a preference is entirely legal.

In Roe v. More, 35 N. J. Eq. 526, the court said:

“In order to set aside, as fraud, against creditors a conveyance to one creditor, he must have participated in or have been cognizant of grantor’s unlawful motives when he accepted the conveyance. A mother loaned her son $1,!'50, which was due, with interest, and the son conveyed the property to the mother. Being, then, a valid debt, it was her legal right, acting in honesty and good faith, to secure it by encumbrance in her favor upon the property of her debtor, or absolutely to purchase it by the surrender of credits sufficient in amount to constitute an honest, adequate consideration for the sale. It was her right to be vigilant and foremost in attaining this end, although thereby other creditors were postponed, or put to other disadvantage.
“It was equally the right of the debtor, if he so willed it, although in failing circumstances or insolvent, to prefer her in payment to other creditors.”

And in the National Bank of the Metropolis v. Sprague et al., 20 N. J. Eq. 11, 13, 14, it was held:

“The law of this state does not forbid debtors, though insolvent, to prefer creditors by making payments of money or transfers of property or by giving mortgages or confessing judgments. And, although a preference thus created may operate to delay and hinder other creditors, yet, if not created for that purpose, but to secure or pay bona fide debts, it is lawful.
“Partners have the power, while the partnership assets remain under their control, to appropriate any portion of them to pay or secure their individual debts.”

I believe there was no fraud in the making of the agreement, and that there was a valid consideration for the deed. Testimony taken at the rehearing has failed to change the opinion I formed at the first hearing.

I shall therefore advise a decree that the bill of complaint be dismissed.


author: Church, Y. 0.

text:
    Benjamin F. Messler and Charles A. Herbst, complainants, v. Charles P. Gillen, director of the department of parks and public property, and Charles Lemmermeier, Centre market clerk, defendants.
    [Decided November 5th, 1925.]
    1. The termination of a permit to keep a stall in a market -will deprive the holder of it of the good-will of Ms business, and should be enjoined unless the regulation under which it is issued is legal and reasonable.
    2. Where the legality of a regulation of an officer of a city is clearly involved, the status quo should be preserved by injunction until the legality and reasonableness of the regulation is settled.
    On bill, &e.

      Mr. Louis B. Lesser, for the complainants.

      Mr. Jerome T. Gongleton, for the defendants.
   Church, Y. 0.

This is a suit for a preliminary injunction by one Benjamin E. Messier against Charles P. Gillen, director in charge of the Centre market in Newark.

It appears that Messier and his father have conducted a business in the Centre market in Newark continuously since 1865. On January 21th, 1921, John E. Monahan, then director, issued a permit to Messier and one Herbst. It is to be noted that this permit provides for revocation by the director of parks and public property, but does not say how or when or in what manner. The inference, therefore, would be that this right should be exercised in a reasonable manner. The permit is in the following language:

“Said Ben J. Messier and C. A. Herbst, stipulating and agreeing in the use and occupancy of the said stand, to be governed by and obey the ordinances, rules and regulations now established or hereafter established for the governance, inspection, regulation and management of the public markets. This permit is revocable by the director of parks and public property. The above stand is to be occupied only as a stand for the retail sale of fruit and vegetables and country products.
This permit is personal and not transferable.
John F. Monahan.
Attest :
Charles Lammermeier,
Market Olerk.”

Before that time the stands were occupied by virtue of permits issued by the various authorities who, from 1865 until the adoption of the Walsh act, had control of the market. The rental has always been regularly paid as demanded by the. city authorities.

There is some dispute in the pleadings as to whether or not a permit of later date than the one signed by John E. Monahan was or was not given to Messier, but in the briefs it is admitted that no new licenses or permits were tendered to ■the complainants.

In 1924 Mr. Grillen promulgated certain rules and regulations governing the market, which rules are in printed form and are endorsed “Effective April 1st, 1924.” A copy of these rules was given to the complainants some time in the spring of 1925. One of the rules reads as follows: “The director may terminate a permit at the end of any month upon thirty days’ notice of his intention so to do to the lessee.”

Thereafter, on August 31st, 1925, the director served the following notice on Mr. Messier.

“In accordance with regulation 3, section 8 of the rules and regulations of the department of parks and public property for the operation and control of Centre market, you are hereby notified that your permit to do business in the Centre market will terminate October 1st, 1925.”

No reasons for this were given, and when an attempt was made by Mr. Messier to find out what reason, if any, caused this notice, no information was vouchsafed. The complainants secured a rule to show cause, with temporary restraint, and are now asking for a preliminary injunction restraining the director from ejecting this man from his stall in the market until after a final hearing in this case.

I am aware of the rules as laid down by our courts as to the granting of preliminary injunctions. They are best epitomized in the Citizens Coach Co. v. Camden Horse Railroad Co., 29 N. J. Eq. 299.

The first proposition is that “a preliminary injunction is never granted unless the act threatened to be done will inflict an irreparable injury on the complainant.” It seems quite obvious that, if this man is forced to give up a business that he and his family have conducted since 1865, he will he deprived of the good-will attaching to this stand, and his business will be practically ruined; whereas, it is no hardship upon the city of Newark to allow him to remain until a final conclusion can be had in this matter.

The second rule in the above-stated case is: “Nor will the writ be issued where the right of the complainant depends on an unsettled question of law.” The question of law involved in this case, in my opinion, is this: Is or is not this rule or regulation, assuming that it was properly and legally passed under proper authority, reasonable or unreasonable? Our courts have held in cases too numerous to cite that regulations of this kind must be reasonable. Is it reasonable to place in the hands of one single man the arbitrary right to choose whom he shall allow to have stands in the Centre market, and whom he shall, in his absolute discretion, declare shall no longer earn their living there ? There is no doubt that the city has the right to properly and reasonably control the Centre market and the occupants of the stalls, but it is a grave question as to whether an arbitrary action of this kind is within the power of the director.

At all events, the legal principle is so clearly involved that, in my opinion, the facts of this case should be considered, and that principle applied to them without in the meantime disturbing the present status quo.

All the facts that I have recited are admitted, so the third rule in the Citizens Coach Case, supra, to wit, "when the equity of the complainant is disproved by the answer and affidavits, a preliminary injunction is not proper,” does not, in my opinion, apply.

Counsel for the complainant has also submitted affidavits showing that in several eases, at least, leases have been granted in the market — not licenses or permits — which leases contain no reference to these rules, and give no authority to the lessor to serve a thirty-day notice to vacate.

This raises another legal question as to whether or not the control of this market has been conducted in a discriminatory manner — that is, certain rules prepared for some stallholders and other conditions imposed on other stallholders.

I shall, therefore, for the reasons stated above, advise a decree continuing the preliminary injunction until final hearing.


text:
    William Dougherty, complainant, v. Adam Dougherty, David Dougherty, Mary Dougherty and Lottie Dougherty, defendants.
    [Decided November 6th, 1925.]
    1. Ail agreement by a mían to leave certain lands to Ms son providing that the son should care for Mm and his wife during their lives is legal if it is established and performed by the son, and is not such a promise as comes within the statute of frauds.
    2. Where a son performs his part of the agreement to take care of his father, it is a gross fraud to say after the father’s death that the agreement should not be carried out in its fullest terms.
    On bill, &C.

      Mr. J oseph F. Nardiello, fox the complainant.

      Mr. Charles IF. Weeks, for the defendants.
   Church, V. C.

This is an action for partition of certain lands in Morris county, New Jersey. These lands belonged to William Dougherty, Sr., father of the complainant and of the defendants Adam Dougherty, David Dougherty and Mary Dougherty, now Mary Curtiss. William Dougherty died on November 9th, 1924.

The defendant sets up as a defense to the action an agreement between William Dougherty, Sr., and himself, wherein William, Sr., agreed to leave these lands to Adam, his son, providing that said Adam should care for the deceased and his wife during their lives.

There is no question as .to the legality of such an agreement, if it can be established, and it is not such a promise as comes within the statute of frauds.

In Boulanger v. Churchill, 86 N. J. Eq. 96, Vice-Chancellor Lewis held: “Payment in services will not, as a general rule, take the contract out of the statute any more than payment in money, but some services cannot be measured by their money value, and were not intended to- be so measured. Services of affection rendered by a child to its parents, rendered as consideration for an oral promise, cannot be compensated by money damages.”

In Davison v. Davison, 13 N. J. Eq. 246, the chancellor held: “That the contract was by parole, and not in writing, while it greatly increases the difficulty of proving its terms, constitutes no valid objection to its enforcement. There has been a part performance on the part of the complainant [son]. He served his father several years upon the faith of the contract, and, as the evidence shows, faithfully and to the father’s satisfaction. Part performance takes the case out of the operation of the statute of frauds.”

See, also, the elaborate opinion by Chancellor Williamson, Van Dyne v. Vreeland, 11 N. J. Eq. 370.

It is unnecessary to- cite further authorities in this matter. The agreement, if properly proven, is a perfectly legal one.

We, therefore, come to a consideration of the evidence adduced at the hearing. Mrs. Dougherty, the widow, testified that her husband for a long time was in very poor health, and during the last six or eight years of his life was unable to earn any money; that Adam contributed to the support of the family, took care of his father and herself, and for six or eight years did all the work around the place, paid the taxes and repairs upon the house. She says that her husband told her he had agreed to leave the premises to Adam in consideration of Adam’s promise to support his father and her during her lifetime.

Mrs. O’Brien, a friend of the family’s, but no relative, testified that Mr. Dougherty told her he had agreed with Adam to leave the premises to him in consideration of Adam’s promise to care for the old couple, as above stated. In 1922 she went to see Mr. Dougherty and his wife, and he then assured her that, according to the aforestated agreement, he desired and had agreed that the property should be Adam’s.

It should be noted that all the other children except Adam left the homestead five or six years before the death of William, Sr., and David Dougherty, one of the sons, and his wife both said that shortly after their marriage, while on a visit to William, Sr., William, Sr., said: “David, you have left home and Adam has stayed here and taken care of us and has agreed to continue to do so, and I have agreed to leave the farm to him.”

Another neighbor, one Martin, corroborates this still further. Moreover, there was introduced in evidence a deed, executed on April 22d, 1925, before this action was started, b,y which the son David and his wife, and the daughter Mary and her husband, conveyed their interest in the property to Adam. This deed recites that it was given for the purpose of giving effect to the agreement between father and son.

The testimony is clear and distinct as to the agreement, and 'also as to the fact that Adam gave the best years of his life to the service of his parents. He worked all day to procure the money to take care of his father and mother; he paid the taxes on the house and the repairs, and one of the witnesses says after he came home from his work elsewhere he worked far into the night doing the necessary farming work about the place in order to- keep it in condition. Moreover, the testimony shows that Adam refused to take employment in Morristown, giving as his reason that, should he do so, he would be unable to give the care and attention and companionship to his parents which he had agreed to do.

He performed his share of the contract in full, and it would be, in my opinion, a gross fraud to say now that he should not have the agreement carried out in its fullest terms.

I shall therefore advise a decree dismissing the bill.


author: Ingebsoll, V. C.

text:
    Marlborough-Blenheim, a corporation, etc., complainant, v. Atlantic City et al., defendants.
    [Decided June 22d, 1925.]
    1. Where a deed dedicating land for public purposes provides that certain land shall remain at all times thereafter open and unbuilt upon, as and for a lawn or open space for light and air and a clear unobstructed view of the Atlantic ocean, the city will be enjoined, at the suit of one of the owners of land affected, from erecting a wind shield with a wooden base, top and sides, upon the land subject to the deed of dedication.
    2. Where certain easement deeds were given, the erection of a structure on the land covered by them will be enjoined when the proposed structure is in violation of the terms of the easement deeds.
    On bill for injunction. On final hearing.

      Messrs. Cole & Cole, for the complainant.

      Mr. W. Frank Sooy, for the defendants.
   Ingebsoll, V. C.

The city of Atlantic City has advertised for, received and accepted bids for the building of a “windshield” to be erected between Indiana avenue and Park place, upon the boardwalk along the ocean front of said city. This windshield is to be located about three feet oceanward of the interior line of the boardwalk, and is to be approximately seven feet six inches in height, with wooden base, top and sides, with wire glass in panes in the centre of the frames. Approximately one-half of the shield to be of wood or other opaque material.

The complainants are the owners of property located landward of the boardwalk, and upon the westerly side of said Park place. Tbejr seek an injunction restraining the city from proceedings with the construction and erection of the proposed windshield.

At the conclusion of the hearing I, in an oral opinion, set out my reasons for advising an order for injunction, stating that I would probably file a more extended opinion, and I now consider it wise to cite the several acts and cases referred to by me in that opinion.

The boardwalk is an elevated public structure over a public street, authorized under the boardwalk easement deeds (deeds from various owners of beach-front lands to Atlantic City), and the acts authorizing it generally known as the “Boardwalk acts,” chapter 129, laws 1889; chapter 107, laws 1890, and chapter 5 of laws 1896.

Under the “Park act,” chapter 93, laws 1894, and deeds usually called “park deeds” (deeds from various owners of beach-front land to Atlantic City), the city has laid out a public park extending from the interior line of the boardwalk and said public street oceanward.

In the easement deeds the grantors agreed that they would erect no building or structure outside the boardwalk, with certain exceptions therein mentioned.

The covenant in the park deed is somewhat different. The city agreed to maintain the boardwalk, that it be used for no other purpose than as a boardwalk, and that the lands should remain open so that the view oceanward from the public walk should not be obstructed.

These acts and the boardwalk and park deeds have been upheld by the court, upon proceedings instituted by Atlantic City. Atlantic City v. Atlantic City Steel Pier Co., 62 N. J. Eq. 139; Atlantic City v. Young’s Amusement Co., 62 N. J. Eq. 147; this case was reversed, 63 N. J. Eq. 831, but not upon the question of the right of Atlantic City to enforce the conditions in the boardwalk deed. Atlantic City v. New Auditorium Pier Co., 63 N. J. Eq. 644; Ibid., 67 N. J. Eq. 284. This latter case was reversed by the court of errors and appeals (67 N. J. Eq. 610), but not upon the question now being considered.

Have the complainants a right to maintain this suit? In White v. Young’s Pier and Hotel Co., 78 N. J. Eq. 498, it was expressly held (on p. 505), “that the complainants have a right to maintain this suit, especially in view of the fact that Atlantic City wa,s requested to bring it and refused.”

This being true, a suit may go against the city, if it attempts a like violation.

The case is not parallel with Godfrey v. Atlantic City, 95 N. J. Eq. 183, in which the court refused an injunction against the placing of seats upon the boardwalk for a temporary purpose.

Prior to any of these acts, or the execution of these deeds and agreements, George P. Lee and Hamilton Disston, the owners of land bounded by Pacific, Indiana and Ohio avenues and the Atlantic ocean, executed and recorded a deed poll dedicating out of said tract “Brighton Park” in the following language:

“That so much of their said lot or piece of ground above described, situate, lying and being between the said Indiana avenue as widened and Park .place as lies at the distance of four hundred and fifty feet southwardly from the southwardly line of Pacific avenue, and extending from thence of the width of one hundred and thirty-six feet between the east line of the said Park place above mentioned and the west line of said Indiana avenue as widened into the Atlantic ocean, shall be dedicated to and h nceforth at all times hereafter be left open and unbuilt upon [except for such ornamental purposes as may, from time to time, be mutually agreed upon by and between the said George F. Lee and Hamilton Disston, their heirs and assigns] as and for a lawn or open space at all times hereafter forever for light and air and a clear, unobstructed view of the Atlantic ocean, the same to be for the free use, right, liberty, privilege and enjoyment as a park, to be called or known as Brighton Park, in common with the said George F Lee and Plamilton Disston, their heirs and assigns, owners, tenants and occupiers of the remaining ground granted by the said Pierce Archer, Jr., to the said George F. Lee and Hamilton Disston in and by the said above-recited indenture. The said open space or park to be adorned, as soon as practically can be, with grass and laid out with paths and walks therein and enclosed with a neat fencing or pailing.”

The lands of the complainants are a part of “the remaining ground,” they having by mesne conveyances from said Lee and Disston obtained title thereto.

It is quite clear that the covenants and conditions in said deed poll prevent the erection of a windshield across the land in question. It is an obstruction that would be in violation of the deed poll, and it would appear that the very fact that structures cannot be built upon the land in question is the reason that the windshield is sought to be erected thereon.

It is therefore unnecessary to consider further the question of the effect of the Boardwalk act and deeds or the Park act and agreement. It would seem to me, also, that the court is sustained in that view by the fact that this structure might be a violation of the easement deed. It is not such a structure as the grantors agreed Atlantic City could erect upon it. The city has erected the elevated boardwalk, and it is not now necessary for me to say whether that elevated boardwalk at the time was or was not a violation of the deed poll. That is now long past, and it is certainly not such a violation, if a violation at all, as would permit an entire obstruction of the view across this particular land.

Nor is it necessarjr, in the view that I am taking of these proceedings, to say whether or not the restriction in the park deed, which says that the city shall maintain a boardwalk which shall be and remain open, so that the view oceanward from the public walk shall not be obstructed. That simply adds to the view that the court has taken in this matter, that the original intention of these grants was that the boardwalk should be a public walk, and it should remain open and clear from obstructions on the outer side thereof, and that, because of the peculiar situation in this locality, nothing being permitted to be built on the insides thereof, the suggested need of a windshield arises.

An injunction must be advised in this matter.


author: Ingersoll, Y. C.

text:
    Margaret A. Smyth Bumm et al., complainants, v. Marie C. Smyth et al., defendants.
    [Decided June 29th, 1925.]
    S. caused deeds to be drawn, conveying all her property to a daughter, her counsel informed her of the nature of the act, and she, stating she would seriously consider the act, held the deeds for over a year. She then executed a will, in which she left her property to the same daughter in trust, to pay the income equally to all her children, and the principal at the death of each as ¡each may direct. About two months after the .making of said will she suffered a severe stroke of apoplexy, and within three days thereafter, at the request of the daughter, grantee named in the deeds — the daughter producing them, counsel carised the deeds to be signed by S. — no advice of any kind being given to her at the time of the execution of the tdeeds. Held, that the deeds (conveying property in this state) are not the voluntary act and deed of the gi’antor, and will be set aside.
    Or. bill, &c., On final hearing.

      Messrs. Bolle, Sooy & Gill and Mr. Daniel J. Shern, (of the Pennsylvania bar), for the complainants.

      Mr. Ulysses G. Styron, for the defendants.
   Ingersoll, Y. C.

The complainants, Margaret A. Smyth Bumm and Austin E. Smyth, and the defendants, Marie C. Smyth, Rosalie M. Smyth and Leanor Smyth, were the sons and daughters and the only heirs-at-law of Margaret Ann Smyth, who died April 6th, 1922, and the purpose of the bill is to set aside a deed dated May 1st, 1920, by which she conveyed certain property in Atlantic City to the said Marie C. Smyth, one of the daughters. This deed is in form duly acknowledged and recorded.

Mrs. Smyth had been a widow for many j^ears, and she had been assisted in the management of her property by her daughters, but by Marie more than the others.

The history of this deed, as well as of one conveying several properties in Philadelphia to Marie, and dated and signed on the same day, is: That some time in the year 1919 she called upon John E. X. Reis, a eounselor-at-law of this state, who had represented her in several matters since 1915, and who, at her request, prepared the two deeds, including the one in question, and delivered them, to Mrs. Smyth on April 15th, 1919, and received his fee for preparing them. Mr. Reis’ statement as to what Mrs. Smyth said to him when she requested him to prepare those deeds was:

“She stated that she wanted to convey — wanted me to prepare these two deeds and convey the property set forth in these two deeds to Marie C. Smyth, her daughter; that she could trust her better than the other girls; that she couldn’t be easily influenced by anyone to convey away these properties or to do anything with these properties. That also she would take care of her sisters. That the one daughter, Margaret Bumm, was married, and she had a husband who could provide for her, also that she had given her son, Austin Smyth, money, had put him up in partnership, and she considered she had provided for him sufficiently, and she wanted to take care of the three girls, Leanor, Rosalie and Marie. She said at that time Rosalie was keeping company or was acquainted with a young man that she didn’t especially like, and she said Rosalie wasn’t as strong in mind as she figured Marie wras, and she would like Marie to be the head of the house.”

When asked what he told her about the effect of such a conveyance he said: “I told her that it would be to her interest to consider conveying these properties to the daughter absolutely, because the daughter could refuse to provide any support for her, could refuse to take care of her, could dispose of these properties and use the money as she pleased, that it was dangerous for her to place the trust that she was placing in her, and she had better consider the matter seriously before she signed the deeds, and she said she would consider my advice,” and when he delivered the deeds to her she said, “She would consider signing the deeds.”

Mr. Ries never again had the deeds in his possession until he called at the house on May 1st, 1920, in response to a summons by Marie to call, when the deeds were produced by Marie and signed by Mrs. Smyth, and the acknowledgments thereto taken by Mr. Ries. In taking the acknowledgments, the deeds were read to her by Mr. Ries, and she was asked, “Do you acknowledge that you sign, seal and deliver this paper as your voluntary act and deed,” and she answered “yes.”

After Mrs. Smyth had secured these deeds from Mr. Ries, she evidently took them to Philadelphia and placed them in a closet.

Marie C. Smyth testified that about two weeks before the signing of the deeds her mother had told her to bring the deeds to Atlantic City, as she was going to sign them, that she, Marie, was unable to find them, and on the 22d day of April, 1920, her mother told her the deeds were in the top draw of her closet in the house, 258 South Third street, Philadelphia. That on the 29th day of April she brought them dowrn to Atlantic City.

She further testified that she called Mr. Ries upon her own initiative, and that nothing had been said to her mother or by her mother to her about giving her the Atlantic City properties at that time.

Mrs. Smyth suffered from a stroke of apoplexy on the 27th day of April, 1920. This stroke was so severe that, in the presence of the physician, about nine o'clock of that evening, she received the last rites of her church under order of extreme unction. She improved so rapidly that, the day after the stroke, she was able to execute powers of attorney, authorizing her daughter Marie to sign checks, &c. Her physician attended her continuously until June 21st, 1922, when she had recovered sufficiently for him to discontinue his visits. She was also attended by an osteopath for some time.

She suffered a second stroke on Eebruary 28th, 1922, from the effects of which her death occurred April 9th.

On the 26th day of March, 1920, Mrs. Smyth executed what purported to be her last will and testatment, in which she devised and bequeathed the whole of her estate to Marie C. Smyth in trust, to pay the net income arising therefrom in equal parts to each of her five children during the term of their natural lives, and, upon the death of either of said children, to pay over one-fifth of the principal of the estate to such person or persons as the child so dying might direct, and appointed Marie 0. Smyth as her sole executrix.

This will has never been probated, and is in the possession of Marie C. Smyth. It was executed in Philadelphia, and Rosalie Smyth testifies that, on the train coming down from Philadelphia, the latter part of March, her mother told her she was going to sign these deeds because she wanted no accounting made of her money to anyone. She was going to give them to Marie; she was going to make Marie the head of the family; she wanted her to take her place as such.

It is very clear that Mrs. Smyth had at all times before she suffered the stroke of April 27th, 1920, had considered the matter seriously before she signed the deeds, and that she had refrained from signing them during that period of more than a year, that she had executed the paper called the will, in which she provided for the disposition of all her properties, in the manner therein stated. It is also significant that Rosalie testified that her mother told her shortly after the execution of the will “she was going to make Marie the head of the family; she wanted her to take her place.” It is true that Rosalie also testified her mother said “she was going to sign these deeds, because she wanted no accounting made of her money.”

There is nothing in the testimony which would indicate that the mother ever spoke of this conveyance between its date and the time of her second stroke, nor is there anything to indicate that the daughter took any possession of the property or of its income (as her own) during the mother’s lifetime.

There admittedly was no advice of any kind to Mrs. Smyth at the time of the execution of this deed, and I am fully convinced that this deed does not represent the voluntary act and deed of Mrs. Smyth.

A decree will be advised in accordance with the prayers of the bill.


author: Ingeksoll, Y. C.

text:
    The First National Bank of Elmer, New Jersey, complainant, v. William H. Money et al., defendants.
    [Determined June 22d, 1925.]
    1. A debtor has a right to prefer one or more of his creditors over others.
    2. Evidence examined, and held that the mortgagor at the time he made the .mortgage in question was indebted to the mortgagee for the full amount of the mortgage, and that the same is a valid lien upon the premises therein described, and that the-facts and circumstances are consistent with an honest purpose to secure the mortgagee for the amount advanced by him.
    On bill to set aside mortgage. On final hearing.

      Messrs. Powell & Ericlcson, for the complainant.

      Mr. Willis Tidlis Porch, for the defendants.
   Ingeksoll, Y. C.

On or prior to January 1st, 1923, Walter Nelson, one of the defendants, and one Albert C. Surran, partners in business, trading under the name of Nelson & Surran, being desirous of securing loans from the complainants, executed and delivered to it certain promissory notes.

In the course of business Nelson & Surran received from their customers notes to their order for merchandise delivered; these notes were given to the bank, and from the testimony it is difficult to determine whether the business notes were deposited as collateral for the firm’s notes, or whether the firm’s notes were collateral for the business paper.

On October 13th, 1923, the complainant recovered a judgment, on one of the promissory notes made by Nelson & Surran, against them in the supreme court of New Jersey for the sum of $1,900 damages, and $41.43 costs, and on December 1th, 1923, recovered another judgment against said parties in said court for the sum of $1,125.25 damages and $41.43 costs. Execution was issued and levy made upon the lands described in the bill of complaint, subject to a mortgage of $8,200.

This mortgage was made on August 11th, 1923, by Walter Nelson and his wife to William H. Money (one of the defendants), and was duly acknowledged and recorded.

The complainants charge that said mortgage was voluntary, without consideration and fraudulent as against complainant, and prays that said mortgage be set aside and held to be fraudulent, and declared null and void and of no effect as against complainant’s aforesaid judgments.

The defendant Money, who is an uncle of Nelson, denied the lack of consideration of said mortgage, and swears that he advanced the entire sum of $8,200 to Nelson.

Nelson produced eight promissory notes made by him to the order of Money, upon the dates and in the amounts4 as follows: February 8th, 1919, $2,000; May 1st, 1919, $800; December 6th, 1919, $1,000; August 9th, 1921, $600; January 5th, 1922, $800; April 28th, 1922, $600; December 20th, 1922, $800; May 2'lst, 1923, $800, which, with a receipt dated August 14th, 1923, for $800, total the amount of the mortgage.

Both Nelson and Money testify that all of this money (excepting a small amount charged as interest) was actually advanced by Money to Nelson, and that the notes and the receipts were delivered to Money at the time of the payment of the money to Nelson, and on the dates the respective papers bear, and redelivered by Money to Nelson at the time of the execution of the bond and mortgage in question, and as the consideration therefore. They are corroborated by a witness (expert in handwriting, age of ink and of paper, &c.), who testified that the several papers were written at or about the time they bear date. This witness is flatly contradicted by another witness (another expert in like matters), who testified that the papers were not written at or about the time of their respective dates, but that in his opinion, at least, several of them were written at the same time.

The eases (National Security Bank v. Blumberg, 96 N. J. Eq. 270, and Washington National Bank v. Beatty, 77 N. J. Eq. 252) are not applicable to the case now before us, as in those cases, the conveyances being attacked, were voluntary and without consideration.

It is a well-settled rule in this state that a debtor has a right to prefer one or more of his creditors over the others. National Bank of Slatington v. Massopust, 85 N. J. Eq. 564, and cases there cited.

I find, as a fact, that Nelson was, at the time of the making of the mortgage in question, indebted to Money in the sum of $8,200, and that said mortgage is a valid lien upon the premises therein described.

Binding that the facts and circumstances are consistent with an honest purpose, i. e., to secure Money for the amount advanced by him to Nelson, it is unnecessary for me to consider the other questions raised, and a decree will be advised dismissing the bill.


text:
    Ansley B. Bowen and J. William Alcorn, complainants, v. Katherine N. Whilldin and John S. Whilldin, and Charles Tilton, defendants.
    [Determined August 3d, 1925.]
    1. The equitable right to entorte building restrictions may be lost by a degree of acquiescence in their violation, amounting to an abandonment of the rights of the complainant.
    2. Evidence examined, and held that, owing to acquiescence by the complainant in the violation of the restrictions, the bill cannot be maintained.
    On bill for injunction. On final hearing.

      Mr. Garitón Godfrey, for the complainants.

      Messrs. Harcourt & Steelman, for the defendants.
   Ingersoll, Y. C.

The complainants and defendants are severally owners of lots of land within the section restricted by one William .McLaughlin, in Atlantic City.

The restriction alleged to be violated is: “That no building shall be erected nearer the front property line of any avenue or street than fifteen feet * * * provided, further, that nothing herein contained shall be construed as restraining the owner of any lot from erecting any bay window or porch in front of any building * * * and the floor of which porch shall not be more than nine feet above the established grade of said lot.”

The building of the defendant, when originally erected, had an open porch which was nearer than fifteen feet of the front property line, but less than nine feet above the grade. This porch did not violate the restriction. Later, this porch was entirely enclosed in glass, no change being made in its location, and the steps or approach from the lot level were removed (there being another or main entrance facing Vent-nor avenue — the side line of the lot). No complaint was made that this change violated the restrictive covenants.

The change, as recently made by the defendant, is to increase the size of this enclosed structure in width about four feet, make changes in the roof and other inside alterations. The exterior is in the same general appearance as before the alterations, excepting the increased width or depth.

The charge of the complainants is, that by these late changes the structure is “a building” subject to the restrictive clause, and has ceased to be a porch, and is not within the exception which permits a “porch” to be built within the restricted territory.

The defendants contend (1) that this structure is a porch, and therefore is not a violation of the restriction. In Pearson v. Stafford, 88 N. J. Eq. 385, Chancellor Walker said:

“Houses and hotels have porches, and as they almost invariably project out from the buildings it would seem that a restrictive covenant which would prevent the erection of a building beyond a certain line back from the 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.”

(2) That the complainant Bowen has violated this restriction, in that he has built an enclosed garage under the porch in front of his horrse and within the restricted area. If the complainants have violated these restrictions, the bill must be dismissed. Roberts v. Scull, 58 N. J. Eq. 405; Ocean City v. Headley, 62 N. J. Eq. 322; Smith v. Spencer, 81 N. J. Eq. 389. No evidence has been produced that Alcorn has violated this restriction, but it should be stated that he did not appear or take any part in the proceedings, and the case was heard as though Bowen was the only complainant. (3) That the complainants cannot be heard to complain because there has been such a degree of acquiescence in the building of such structures as the one complained of, amounting to an abandonment of the right of complainant. It is well settled that the equitable right to enforce restrictive covenants of this nature may be lost by a degree of acquiescence in their violation, amounting to an abandonment of the rights of complainant. Bowen v. Smith, 76 N. J. Eq. 456.

Admittedly, there are a number of enclosed porches within a few hundred feet of the complainants’ and defendants’ homes, at least one of which has no entrance from the street, and if the structure under consideration is violative of the restriction, that one is likewise a violation.

No complaint ever appears to have been made concerning these porches, nor, as before stated, was any complaint ever made concerning defendants’ structure until its enlargement.

There is no evidence to show that the. complainants are peculiarly affected by the defendants’ structure, and they cannot now be heard to complain in view of their entire acquiescence in the building of similar enclosures, upon other properties, within close proximity to their property.

It is therefore unnecessary to determine whether the Bowen garage is a violation of the covenant, or if the defendants’ structure is or is not a porch.

The bill must be dismissed.


text:
    Karl Schaffer, complainant, v. Warren Hurd et al., defendants.
    [Decided August 18th, 1925.]
    1. A proceeding to open and vacate a decree, whether before or after enrollment, may be instituted by petition and order to show cause.
    2. An enrollment of a decree will be vacated and a decree opened when the decree has been made unjustly against a right or interest that has not been heard or protected, when this has been done without laches or fault of the party who applies.
    3. Where a notice under an order of publication was mailed to a defendant addressed to him at a building' that never existed, but the letter containing the notice was not returned in accordance with the return card on the envelope in which it was sent, and it appearing that other notices and letters sent to the same address were received by the defendant, the fact that some letters improperly addressed were received is not proof that all letters so addressed were likewise delivered, and his strenuous denial that he received the notice, coupled with corroborating circumstances, gives him a standing to petition to open the decree against him and allow him to redeem.
    On bill, &e. On petition to open decree.

      Mr. Albert C. Abbott and Messrs. Gole <& Cole, for the petitioner.

      Messrs. Thompson & Ilansiein and Mr. Merritt Lane, contra.

   Ingersoll, Y. C.

A petition is filed to vacate a final decree, made on the 6th day of July, 1922, and filed on the 7th day of July, 1922, in a certain canse wherein Karl Schaffer was complainant and Warren W. Hnrd (the petitioner) and others were defendants. The bill was filed to foreclose the equity of redemption of the owner, mortgagees and any others interested in the title to a number of tracts of land in Atlantic county, which the complainants had purchased at tax sales held by the cities of Atlantic City and Ventnor City.

The defendant Hurd (present petitioner) was made a party defendant because he was the owner of mortgages upon some of the tracts so purchased, aggregating about $500,000.

The cause proceeded in due form to the confirmation of the master’s report and an order was made on the 13th day of June, 1922, wherein it was ordered and decreed that upon the defendants or any of them paying to the complainant the amount found due to the said complainant, together with his taxed costs at the office of the master (therein' named), on the 29th day of June, .1922, then the complainant was to deliver up possession of said premises to the said defendant, or any of them (so making payment), and cancel and discharge the said certificates of tax sale of record.

Upon the master filing a report that no- person appeared at the time and place or at any other time, and that none of the defendants paid or offered to pay the sum of money or any part thereof, the said final decree, adjudging the said defendants and each of them to be and stand absolutely debarred and foreclosed of and from all equity of redemption in and to all the premises mentioned and described in the bill of complaint, was made and entered.

The petition to open the decree is based upon the allegation of the petitioner, that he had no notice of, or knowledge of, said suit until after the entry of the final decree.

By the established practice of this court, a proceeding to open and vacate a decree, whether before or after enrollment, may be instituted by petition and order to show cause. Mitchell v. Mitchell, 96 N. J. Eq. 29.

There is adequate authority for the proposition that when fraud and surprise are relied on to open an apparent default, a decree may be opened on petition even after enrollment. Jones v. Read-Jones, 84 N. J. Eq. 479.

Vice-Chancellor Garrison, in White v. Smith, 72 N. J. Eq. 697, refused to open the decree, but stated the law as follows : “The next matter for consideration is under what circumstances the prayer of such a petition will be granted.”

In Brinkerhoff v. Franklin, 21 N. J. Eq. 334), Chancellor Zabriskie (1871), it was said (at p. 336) : “It has long been settled that an enrollment will be vacated and a decree opened when the decree has been made unjustly against a right or interest that has not been heard or protected, when this has been done without laches or fault of the party who applies.” Citing eases.

In Embury v. Bergamini, 24 N. J. Eq. 227, Chancellor Runyon (1873), speaking with respect to a default decree after an enrollment, the court said that it would be opened “for the purpose of giving the defendant an opportunity to make a defense, where such defense is meritorious, and he has not been heard in relation thereto, either through mistake, accident or surprise.”

In Allaire v. Day, 30 N. J. Eq. 231, the court of errors and appeals said: “The court of chancery.has discretionary power, even after enrollment, to open a regular decree obtained by default, for the purpose of giving the defendant an opportunity to make a defense on the merits, where he has been deprived of such defense, either by mistake or accident, or by negligence of his solicitor.”

Subpoenas were issued and returned unserved upon the petitioner, with an affidavit by the sheriff of Atlantic county, that he was unable to find in his county, Hurd and numerous other defendants, and that he was credibly informed and verily believed that the said defendants are out of this state, and giving, among others, the address of Warren W. Hurd as Commercial Trust Bldg., St. Paul, Minn.

On November 30th, 1921, an order of publication was made requiring the absent defendants to appear, plead, answer or demur to the complainants’ bill on or before the 3'lst day of January, then next, or that in default thereof such decree would be against them, as the chancellor should think equitable and just. Said order also directed the publication and mailing of the notice of such order. Due proof of the publication of such order was made, and on the 16th day of February, 1922, an affidavit in the following words was filed:

“State of New Jersey : -i County of Atlantic: ) ss'
Walter Hanstein, of full age, being duly sworn according to daw upon his oath deposes and says that he is a member of the firm of Thompson & Hanstein, solicitors of the complainant in the above-entitled cause, and the one actually entrusted with the conduct and management of this cause; that he has, in good faith, made diligent and careful inquiry for the residences and post offices addresses of the defendants hereinafter named, in the manner required by the rules of this court, and that he is credibly informed, in such manner that he believes it to be true that the said defendants reside at the following places, to wit:
Warren W. Hurd Commercial Trust Bldg., St. Paul, Minn. William E. Simpson ” ” ” ” ” ”
[List of approximately 30 additional names and addresses]
Deponent further says that he did on the 9th day of December, 1921, place in the post office of the city of Atlantic City, New Jersey, letters directed to the above-named persons at the above addresses, with the postage prepaid, containing a copy of the notice hereto annexed.
[Signed] Walter Hanstein.
Sworn and subscribed before me this 30th day of January, 1922.
[Signed] Clarence E. Knatjer,
M. G. G. of N. J.”

Hurd testified that he never received the notice, and that he had no knowledge oí the suit until on or about the 15th day of June, 1923, when he received a letter from John C. Reed, a counselor-at-law of this state, advising him of the action. It is undenied that there was not at the time of the mailing of the notice and never had been any building known as Commercial Trust Building, in the city,of St. Paul, Minn.

Hanstein received the information concerning Hurd’s address from Schaffer, the complainant, who had a number of years prior thereto obtained it from the then president of the Realty Realization Company, the mortgagors in the mortgages held by Hurd.

Hanstein further testified that the envelope in which the notice was enclosed bore the return card of Thompson & Hanstein, and that it never has been returned.

It is admitted that certain other notices, which Schaffer testified were addressed to Hurd at the same address, were received by him, and that the letter sent by Mr. Reed to Hurd, advising him of the suit, was also addressed in the same manner.

That during the entire interval Hurd was represented by counsel, who had on a number of occasions prior to the filing of the bill to foreclose, negotiated with Mr. Schaffer and his representatives in an endeavor to adjust the question of taxes. That immediately upon Hurd receiving Reed’s letter he notified his attorney, who immediately communicated with the complainant.

Had the address obtained by Schaffer a number of years prior thereto been, at the time of the mailing of the notices, the post office address of Hurd, the presumption would be that the notice reached the person to whom it was addressed. Wells v. Schaffer, 98 N. J. Eq. 31. In the cited case, Vice-Chancellor Baches held that the force of the testimony of the complainants was in a great measure neutralized by that of Schaffer, and not of weight sufficient to overcome the presumption of truth given to the statutory affidavit, that Schaffer made service as the statute required.

While mailing of a notice properly addressed with postage prepaid raises a presumption that the notice reached the person to whom it was addressed, if there, by evidence which, if credited, would overthrow such presumption, a jury question is presented. Kruger v. Brown, 79 N. J. Law 418.

In Cresse v. Security Land Investment Co., 54 N. J. Eq. 447, Chancellor McGill said (on p. 458) : “I think that in this case it was incumbent upon the Bethlehem Iron Company (the petitioner) to unequivocally allege and establish that it was never served with notice of the suit in the manner prescribed by the eighteenth section of the Chancery act, so that it actually received the notice of the suit, or to allege surprise in some other form, which will justly call for this court’s interference in its behalf, and also that the defense it proposes to interpose is possessed of merit.”

The complainant lays much stress upon the fact that the petitioner received many notices and letters addressed by Schaffer in the same manner, and argues that the petitioner’s denial is not to be credited by reason of such other letters being received. The fact that some letters improperly addressed were delivered is not proof that all letters so addressed would likewise be delivered.

The petitioner, holder of mortgages aggregating about a half million dollars, took steps in each instance where it is proven or he admits having received notices to protect his interest. Upon receiving the letter from Mr. Reed, telling him of the decree, he summons his counsel, who at once begins negotiations to adjust the matter of difference. The fact that he took no steps to- answer the bill filed in this cause is corroborative of his statement that he did not receive the notices. If, as intimated at the hearing, he was in doubt as to the value of his holdings, the ordinary man, upon receiving notice of a suit concerning mortgages, would at least consult with his counsel, who hack the matter in charge, and at least seek advice. This was not clone.

Considerable stress is also laid upon the fact that Hurd did not pay taxes for subsequent years upon this property. When asked concerning these taxes, he answered, on page 68: “Didn’t pay those. I didn’t have to, as I understood it. It belonged to the title holder. I didn’t have the title to this land. I held mortgages and the parties holding the title, I was looking to them to pa.y those taxes.”

He was correct in this construction, for “it is the duty of a mortgagor to pay taxes, and municipal liens, and to keep-down prior encumbrances.” Stewart v. Fairchild-Baldwin Co., 90 N. J. Eq. 139. The order made in this case was set aside, but the above statement was not criticised. Am. & Eng. Encycl. L. (1st ed.) tit. “Mortgages” 814; 27 Cyc. tit. "Mortgages" 1253; 19 R. C. L. tit. “Mortgages” § 180, were also cited.

I am convinced that the evidence establishes that Hurd was never served with the notice of the suit as prescribed by the Chancery act, and that he never received the said notice.

The application to open the decree is admittedly for the purpose of paying the amount due to the complainant.

The second prayer of the bill is “that an account may be taken of the amount due on complainant’s various certificates of tax sales.” This has been done.

The third prayer is “that the defendants, or one of them, may be decreed to pay the complainant the amount so found due, with interest and principal, by a short day to be appointed by this court, and that in default of such payment they and each of them be debarred and foreclosed of all right and equity of redemption in said lands, and every part thereof.”

The day was fixed, no payment was made and the decree final was made and entered.

The petitioner had no notice of, and had no knowledge of, these orders until informed thereof after the final decree.

In Bourgeois v. Risley Real Estate Company, 82 N. J. Eq. 211, Vice-Chancelor Backes found that “where attached property valued at $25,000 was sold to an attaching creditor for $1,870 under a judgment for $2,662.34, and the creditor thereupon sued in equity to set aside an alleged fraudulent conveyance of the property to a corporation, which conveyance was found to be fraudulent, he was only entitled to the amount due on his debt and not to the property, under the rule that he who seeks equity must do equity.”

The vice-chancellor said: “To decree the lands absolute in the complainant would create a situation quite as iniquitous and oppressive and as obnoxious to a court of conscience as that arising out of the fraudulent conduct of the defendants. Satisfaction of the debt and not pillage of the debtor’s estate is equity’s relief.” Citing Payne v. Burks, 4 B. Monr. 492.

The facts in the present case show a very analogous situation to that which Vice-Chancellor Backes described in the case just cited.

The petitioner, Hurd, is the owner of mortgages aggregating about $500,000. He testifies, and is not contradicted, that he and his then associates paid the entire principal consideration in full, and details how the amount was made up. He also testifies, and this also is not disputed, that to redeem from Schaffer it would take “upward of $50,000,” and that he is prepared to pay the amount found to be due, or to pay the same into court.

Using the words of Vice-Chancellor Backes, in Bourgeois v. Risley Real Estate Co., supra: “It seems to me that the complainant must be content with the grant of that prayer for relief which asks that “the defendants pay the debt.”

In Wells v. Schaffer, supra, decided by Vice-Chancellor Backes less than a month ago, he said: “The court will seize upon the slightest flaw of substance in tax sales to restore property to the owner.

“The judicial attitude toward tax sales is reflected in the principle reiterated by Vice-Chancellor Lewis in Harrington v. Horster, 89 N. J. Eq. 270.”

The evidence convinces the court that the notice to absent defendants was not received by the defendant (petitioner Hurd) ; that he proceeded with due diligence after obtaining knowledge of the decree, and that the purpose of opening the decree is to obtain the opportunity to pay the debt complained of, is of a meritorious and equitable nature.

An order to open the decree will be advised.


author: Ingersold, V. 0.

text:
    Edith M. Penn, petitioner, v. Raymond W. Penn, defendant.
    [Submitted August 18th, 1925.
    Determined August 19th, 1925.]
    1. Where a husband was indicted for non-support of his wife, and pleaded guilty, and was sentenced to pay his wife $8 a week and to furnish bond for the faithful performance of the order, and has defaulted in the payments required, this court may order alimony and counsel fee paid in a divorce suit filed by the wife.
    2. Shore v. Shore, 96 N. J. Eq. 661; Roarke v. Roarke, 77 N. J. Eq. 181; Rennie v. Rennie, 85 N. J. Eq. 1, distinguished.
    On petition, &c. On motion for alimony pendente lile.

      Mr. Alexander L. Rogers, for the petitioner.

      Mr. S. Rusling Leap, for the defendant.
   Ingersold, V. 0.

The petitioner has filed a petition for divorce, alleging desertion, and now files her petition for alimony pendente lite and counsel fee.

The defendant opposes the application, basing his defense upon the fact that in the year 1922 the petitioner made complaint against him under the provisions of “A supplement to an act entitled ‘An act for the punishment of crimes’ (Revision of 1898, approved June 14th, 1898),” being P. L. 1898 p. 794; that-he was indicted by the grand jury of Gloucester, and entered a plea of guilty; that the court, under the provisions of section 3 of said act, made an order directing the defendant to pay to his wife $8 per week, and to furnish a bond for $300 for the faithful performance of said order.

It is to be presumed that the recognizance provided for in said section was entered into. It is admitted that the defendant is in default in said payments to the extent of $80. This court, therefore, may grant alimony.

The defendant refers to Shore v. Shore, 96 N. J. Eq. 661, which upon the point in question is distinguished from Roarke v. Roarke, 77 N. J. Eq. 181, and relies upon this latter case, in which the present chancellor held, “an adjudication by a police justice under P. L. 1898 p. 942 § 17, on complaint of the overseer of the poor that the defendant is a deserter of his family, and requiring him to pay a certain sum weekly for the support of his wife and child, precludes an application by the wife to this court for maintenance under the Divorce act (P. L. 1907 p. 474 § 26), while the adjudication of the justice is still in force and being obeyed, when the proceedings before the police justice were initiated by the wife, although prosecuted by and in the name of the overseer.”

In Rennie v. Rennie, 85 N. J. Eq. 1, the chancellor stated that the obedience implication in the Roarke Case was “that if the order, although in force, was not being obeyed, alimony might be granted here.”

In Becker v. Becker, 90 Atl. Rep. 675, the late Vice-Chancellor Emery said: “The opinion of Chancellor Walker, in Roarke v. Roarke, supra, as to the effect of the orders of such courts, either as the result of election of remedies or as res adjudícala, is expressly based on the continued performance of the order.”

There is, however, an unsurmountable objection to the defendant’s claim.

The order upon which he is making payments to the wife is not based upon any action for support, but upon an indictment charging him with a criminal offense. This act provides a penalty of a fine not exceeding $500 or imprisonment. not exceeding one year.

While it is true that upon the plea of guilty, the court may make an order directing the defendant to pay a certain sum periodically, and to release him upon probation upon his entering into a recognizance.

The act, however, further provides that if the defendant violates the terms of such order, the court may proceed and sentence him upon the plea, * * * and in casé of the

forfeiture of the recognizance, the court may, in its discretion, order that the sum recovered may in whole or in part be paid to the wife. It is evident that the wife has no control over the criminal proceeding, nor has she over the order or the distribution of the proceeds of a forfeiture of the recognizance.

It is quite clear that the criminal proceedings does not bring this case within the rule of Roarke v. Roarke, supra, and it follows that this court is not precluded from hearing and determining the present application.

An order of $10 per week will be made, but during such time as the present order of the court of Gloucester county is in force and obeyed, the payment of the $8 per week under that order will be credited upon the payment now ordered. A counsel fee of $25 will be allowed.