text:
    John H. Buckley, petitioner-appellant, v. Edith Buckley, defendant-respondent.
    [Decided April 4th, 1924.]
    The judges being equally divided on the question whether the judgment should be reversed, the judgment is affirmed solely because of such division, which renders any opinion by the court impossible.
    On appeal from the court of chancery advised by Advisory Master Charles Y. D. Joline, who filed the following conclusions:
    “The petition in this case was filed on November 29th 1920. In paragraph 2 it alleges that the defendant deserted the petitioner on or about December 13th, 1901, and that said desertion has been willful, continued and obstinate for more than two years last past. Section 3 alleges that the petitioner has been a bona fide resident of the State of New Jersey continuously since on or about January 1st, 1915.
    “'The defendant was not served with process, but was brought into court by publication. On December 13th, 1920, an order was made that paragraph 2 of the petition be amended so that it should read that ‘from January, 1915, to the date of filing the petition herein, and for two years next preceding the filing of the petition herein, the defendant willfully, continuedly and obstinately deserted the petitioner/ and on December 13th, 1920, the amended petition was filed.
    ■ “On March 15th, 1921, the cause was referred to a special master, and on June 2d, 1921, a report was filed, advising a decree of divorce for the reason that the desertion became willful, continued and obstinate on or about the month of January, 1915. If this be true, the desertion must have occurred on or before January, 1913.

      “In substance, the evidence is as follows: The petitioner was married to the defendant in April, 1893 or 1894. He went to Wassaic, New York, in April, 1897, and from there to Tuckahoe, New York, where he lived until December 13tb, 1901. In December, 1901, his wife decided to go back to her people. She gave as her reason that he was out of work and there were no prospects of his getting work, and she was going home to stay until he got work. He protested against her going, but she gave him to understand that it was moro or less of a visit ; that she would return when he got something to do. As soon as he got something to do-, inside of three weeks, he went to Wassaic to see her, having in the meantime written to her twice, but he did not receive any letters from her in the meantime. He found her at the home of her sister, Mrs. John Bates. He went to make arrangements for her to come back. He then learned for the first-time that she had no intention of coming back. She said that she did not have any intention of doing so, and that she did not when she went away. He attempted to plead with her but it made no impression, and she finally asked her brother-in-law, Mr. Bates, to invite him to leave the house. The last thing he said was, ‘Was there not something he could do so that she would come back?J and she said ‘absolutely hone/ she had made up her mind not to- go back, and she then requested her brother-in-law to ask him to leave the house, which he did. From Tuckahoe he went to Yonkers, staying with his aunt. He wrote her every week, sometimes twice a week, but he did not receive any letters in answer. He continued writing her from two years and wrote easily over two hundred letters in that time. He sent a doctor in Yonkers to see her. The doctor really went on his own hook, because -the petitioner was quite, sick and the doctor said it was that that was making him sick, and he was going to see what he could do. The doctor reported to him and said that it-was absolutely hopeless; that they would not talk with him and that there was no reason to expect her to come back. That doctor is now at Saranac Lake, noth tuberculosis. He also sent his aunt twice, with the same result. She is now dead. He also, sent a Mr. Wills.
    “He came to Newark, New Jersey, to live, in the early part of 1915, January or February, but he thinks in the latter part of January, and he has lived there ever since.
    “When he came to New Jersey he wrote to his wife almost immediately. He has not a copy of the letter he wrote, as all his personal belongings were destroyed when -he went into the service of the United States. Many of his letters were returned, marked ‘Refused, return to writer.’ The letter that he wrote in the early part of 1915 did not come back, but it had a return card in the upper left-hand corner. He has never had any response to these letters.
    “In the late summer, or early fall of 1920, he sent Mr. Charles M. Wills to see her. Mr. Wills testified that in the fall of 1920 the petitioner explained to him, in a general way, his marital difficulties, told him that he was anxious io effect a reconciliation with his wife, and asked him to approach the defendant and endeavor to persuade her to return to him. Mr. Wills went to Wassaic, New York, located the defendant, and said it was the desire of the petitioner to effect a reconciliation with her and have her return to live with him. The defendant told Mr. Wills that if the petitioner sent him there with any idea that she would agree to return to him that it was wasting his time, the witness’ time and hers; that she had been separated from the petitioner a number of years; that he had completely gone out of her mind and that the visit of Mr. Wills, was the only thing that would probably recall it to her mind. She stated that under no circumstances would she consent to a reconciliation or consent to see the petitioner. Mr. Wills told her that he was going to remain in the town until late in the afternoon; that he would like it very much if she would give this matter some thought; that he would be within call until the train left, and if there was any change in her mind all she had to do was step to the door and call him. She answered that he could go because she would not call him, and he could convey to the petitioner the message that she would never return to him, and that the divorce courts were open to him if he so chose. He then told her that he would report to Mr. Buckley as follows: T have used all of my power and persuasion to induce your wife to return to you but she absolutely refuses, and her message to you is that this is final, and than the divorce courts are open to' you if you so desire/ and she answered, ‘that will cover the situation completely.’
    “I am unable to agree with the special master in this case.
    “I think that the defendant deserted the petitioner in 1901, in the State of New York; that the desertion became complete in that state in December, 1903; that the petitioner did not become a resident of New Jersey until January, 1915, and that he was obliged to' establish the fact that desertion, it having subsisted in this state for two years prior to the filing of the petition, was a good ground for divorce in New York in December, 1903.
    “I understand this to be the conclusion of Vice-Chancellor Emery in Koch v. Koch, 79 N. J. Eq. 24; vide 2 Comp. Slot, p. 2082 § ’7(5); Getz v. Getz, 81 N. J. Eq. 465; Berger v. Berger, 89 N. J. Eq. 480; Elynn v. Flynn, 88'N. J. Eq. 690.

    “Where there is a desertion in another state, the petitioner must prove either that he came to New Jersey to live before the desertion accrued and remained in this state for the statutory period, during all of which time the desertion continued, or else he must prove, as above stated, that he came to New Jersey after the desertion accrued and that the desertion has continued for two years thereafter, and that desertion was a good ground for divorce in the state in which the desertion occurred.
    “The case of Orens v. Orens, 88 N. J. Eq. 29, holds that in causes for divorce for desertion there are two periods of two years each, during which time the desertion must have been willful, continued and obstinate; the first, that immediately succeeding the desertion, at the expiration of which time the cause of action arises and accrues; and the second, that immediately prior to the filing of the petition, which vests the jurisdiction in the court to decree a divorce. Vide Gordon v. Gordon, 89 N. J. Eq. 585, 588.

      “I think that when the defendant deserted the petitioner in New York, in December, 1901, and refused to- return to him, the desertion became willful, continued and obstinate in December, 1903. This all occurred in New York State.
    “Counsel for the petitioner seems to think that his position in this case is justified by the case of Byrne v. Byrne 93 N. J. Bq. 5. Chancellor Walker in that case, citing the case of Carroll v. Carroll, 68 N. J. Bq. 721¡, and Fmte V. Foote, 71 N. J. Bq. 273, 279, and referring to the Carroll Case, uses the following language: 'The petitioner appealed and the court of errors and appeals reversed the decree in chancery and granted a divorce, observing (at p. 727) that it is not necessary to begin a desertion, that the deserter intended to desert at the time he leaves his home; that if the proof shows that he at any time while absent, determined that from thenceforth he would desert his wife, and that determination is persisted in willfully, continuedly and obstinately for the statutory period,'that will constitute desertion for the required time/
    “In other words, it holds, as is stated in the third syllabus, the offense is complete, nothwithstanding that an earlier period than the commencement of that period was alleged in the petition as the actual date upon which the desertion commenced, but desertion once commenced must have been continued without interruption to entitle the petitioner to a decree. I do not think that this case holds that, if desertion occurs in another state, and the time accrues while the parties are living out of this state, the petitioner can come into this state after that time and obtain a divorce unless he can show that desertion was a ground for divorce in the former state. Parties seem to think that they can allege the desertion to have occurred at any time they wish. This, of course, is subject to proof, that it did occur at the time alleged. If this were the law, any defendant could desert the petitioner in a state where desertion was not a good ground for divorce, the time could accrue in that state, the petitioner could come into this state, reside here for two years, immediately write and ask his wife to return to him, and upon a refusal or neglect so to do^ as in this ease> say that the desertion occurred in New Jersey. It would be an easy way to' evade our law, and it would furnish a fertile field for fraud.
    “The case of Garrett v. Gcurreti, 86 N. J. Eq. 293, holds that it is an inflexible rule that a divorce will not be granted upon the uncorroborated testimony or admission of a party to a suit, and that this applies to every element in the suit necessary to sustain it.
    “If the desertion occurred in New York in 1901, I do not think that it has been corroborated, for the petitioner alone testified to it. I look upon the letter written by the petitioner to the defendant, in the early part of 1915, as an attempt to have his wife return to' him. It is a rule that where the wife leaves her husband, it is his duty to use every effort to induce here to return to him, and that this must be corroborated. Sterling v. Sterling, 71 N. J. Eq. 59. This is necessary unless it is clear that any effort in that direction by the husband would be unavailing to terminate the desertion. Marsh v. Marsh, 86 N. J. Eq. L19. All of these matters must be corroborated by the best evidence. Lasher v. Lasher, 91 N. J. Eq. 352.

    “The only evidence in this case to establish the fact that the petitioner tried to- induce his wife to return to' him, aside from his own testimony'-, is that of his aunt, who is now dead, that of a doctor, who cannot be produced, and that he, the petitioner, wrote many letters to his wife, which were either not returned or were returned with the mark ‘Refused’ on them. None of the letters are produced, nor is their contento sworn to by any person except the petitioner. This, of course, does not refer to the letter written in the early part of 1915. It follows that in all of the above matters the petitioner is not corroborated. With regard to the last-named letter, he testified that in the spring of 1915 he wrote to- his wife, asking her to return to him; that he had no copy of the letter, all of his personal belongings having been destroyed when he went into' the service of the United States; that the letter was not returned to him, although he had a return card in the upper left-hand comer, and that he had-no response to it. He swore to the contents of this letter— swore that he sent it. Mr. Wills swears that he went to. see the defendant in the fall of 1930, and that she admitted receiving a letter from the petitioner in Newark asking her to return to him. I am willing to assume from this that there is a corroboration of his having written this letter from Newark and of its contents. Orens v. Or ms, supra,. Mr. Wills swears that he went to Wassaic, New York, in the fall of 1930, at the request of the petitioner, saw the defendant and requested her to return to the petitioner, and that she absolutely refused to do' it.
    “The petition in this case was filed November 39th, 1930. It seems to me that Mr. Wills’ journey to Wassaic, New York, in the fall of 1930, was intended to create a status so that the petitioner could sustain an application for divorce. It has the appearance of not being Iona, fide. Arrowsmith v. Arrowsmith, 71 Atl. Rep. 702, 7Of.

    “It seems to me that this entire case has proceeded upon the theory that the desertion occurred in 1901. The master asked the petitioner what reason he could give, if any, for his wife leaving him in 1901, and he answered: H can give none. I might say this, that about three generations back there was a family feud, but it had nothing to do with either of us.’ He was then asked if she had ever expressed her intention to leave him before she finally left, and he answered: None whatever.’ Charles M. Wills swore that Captain Buckley asked him to see his wife in an endeavor to have her return. He was asked by the master if the defendant gave any reason for her original leaving of Captain Buckley, or any reason for her refusing to live with him, and he answered that she did not. The master also asked Frank H. Buckley where John H. Buckley was living wheh his wife left him, and he answered: ‘Tuckahoe, New York.’
    “It is my opinion that the desertion occurred in Tuckahoe, New York, in December, 1901, and became complete in December, 1903, in that state, and that the petitioner, to sustain a suit for divorce in this state, he having come here to live in 1915, must show that desertion was a good cause for divorce in New York in 1903.
    “In my opinion a decree should be entered advising that the petition should be dismissed.”

      Mr. Fred Herrigel, Jr., for the appellant.
   Per Curiam.

The decree under review herein is affirmed by an equally divided court.

For affirmance—The Chiee-Justice, Trenchard, Min-TURN, KATZENBAOH, CAMPBELL, WHITE-6.

For reversal—Parker, Kalisch, Black, Gardner, Yan Buskirk, Clark—6.


source: Caselaw Access Project

author: Walker, Chancellor.

license: Public Domain

text:
    Edwin Robert Walker, Chancellor.
    Edmund B. Leaming, Vivian M. Lewis, John H. Backes, John Gbieein, John E. Foster, Malcolm G. Buchanan, James F. Fielder, Alonzo Church, Robert H. Ingersoll and John Bentley, Vice-Chancellors.
    Minnie Webb, petitioner, v. Thomas A. Webb, defendant.
    [Decided May 23d, 1924.]
    1. A guardian ad litem cannot be appointed for a defendant unless his mental unsoundness is such as to render him unfit for the government of himself and his property.

      2. Such illness as disables a person from giving attention and care to the preparation of his defense is not a ground for the appointment of a guardian ad litem, as a defendant in such circumstances has capacity to appoint a solicitor to prepare and conduct his defense for him.
    3. An incapacitated defendant conducts his defense through a guardian, general or ad litem, and if the complaining party does not apply for such guardian, application may be made by his father, mother or next friend, intervening on his behalf for that purpose.
    4. A guardian can only be appointed on notice to a lunatic defendant, as, in the first instance, he has a right to defend on the question of insanity, an adjudication of which must precede, or, at least, be contemporaneous with, the appointment of such guardian.
    On petition for divorce. On application for appointment of guardian ad litem for defendant.

      Messrs. Parlcer, Emery & Van Riper, for the application.
   Walker, Chancellor.

This is a divorce suit, and the defendant has preferred a petition for the appointment of a guardian ad litem for himself. His petition shows that he has been for the past'four years, and still is, physically and mentally ill and unable to attend to his affairs or manage his business, and is now, and has been, under medical treatment for his said illness; that by reason of his said illness he believes that he is unable to give proper attention and care to the preparation of his defense to the petition filed against him in this cause or to consult with counsel about the full preparation of said defense in a legal, competent and proper manner; and he, therefore, prays that his mother may be appointed guardian ad litem for him to make answer and defense in this suit. His mother, in a writing annexed to the petition, consents to be appointed such guardian. Neither in the petition is it alleged, nor in the affidavits annexed is it shown, that the defendant is a person of unsound mind for whom a guardian should be appointed.

In Bunting v. Bunting, 87 N. J. Eq. 20, I held that a solicitor cannot obtain authority to acknowledge service of subpoena for an infant defendant, not even from the infant, as he is incompetent to employ a solicitor and voluntarily appear. Persons non compos are equally as incapacitated as infants. And the presence of a guardian before the court to represent a lunatic defendant is essential. In re Martin, 86 N. J. Eq. 265, 270. The fact of minority (and equally of lunacy) should be made to appear to the court to the end that it may appoint a guardian ad litem for the incapacitated party. Pierson v. Hitchner, 25 N. J. Eq. 130, 133. But this defendant is not shown to be a lunatic. If he were he would be incapable of suggesting that he was such; and, in fact, he does not claim that he is. He simply says that by reason of his illness he believes he is unable to give proper attention and care to the preparation of his defense herein. Eor aught that appears, he has perfect capacity to retain a solicitor, and the solicitor, with the aid of his mother and other relatives and friends, can certainly prepare his defense; and, for that matter, conduct it for him. If a guardian ad litem were to be appointed on this showing, defendants in manj'- cases would be entitled to the same relief and protection, if it be protection. I fail to see any requirement for the appointment of a guardian in a case like this, even assuming that the defendant is to an extent unable to confer with counsel and prepare his defense. That, after all, in a case like the present, is particularly the business of counsel himself. Infants’ rights are not superior to those of adults. The difference between the two classes of persons is that the rights of infants must be protected by the court, while adults must protect their own interests. In re Shreve, 87 N. J. Eq. 7. And the same doctrine applies in the case of lunatics. Guardians must be appointed for lunatic defendants, but persons compos mentis must defend themselves. Degrees of competency will not be measured. A guardian can only be legally appointed on notice to the lunatic defendant, for, in the first instance, he has a right to defend on the question of lunacy, an adjudication of which must precede, or, at least, be contemporaneous with, the appointment of a guardian. In re Martin, supra (at top of p. 272). It is no answer to say that this defendant does not have to be notified as he applies himself, because, as I have said, if he be really insane and incapacitated, he has not capacity to apply for a guardian for himself. Courts do not appoint guardians for adults who are sui juris. A lunatic has no capacity to appoint an attorney. Van Horn v. Hann, 39 N. J. Law, 207, 213. If he lacks capacity to appoint an attorney he lacks capacity to apply for the appointment of one, or for the appointment of a guardian.

Infants, idiots and lunatics are as incapable to defend a suit alone as they are to prosecute one alone;- and although named in a bill as parties defendant they conduct their actual defense through a guardian, usually a guardian ad litem appointed bj7 the court on the application of a friend or of the opposite party, although occasionally by the general .guardian, conservator or committee without his special appointment as guardian ad litem, at least where his interest is not adverse to his ward’s. 1 Whiteh. Eq. Pr. 67 § 48.

Lunatics, not so found by inquisition, and persons of weak intellect, or who are by age or infirmity reduced to a second infancy, must defend by guardian. Dan. Ch. Pl. & Pr. *176. Where the infirmity is the result of bad health the practice is to allow time to file the answer and not to assign a guardian. Ibid. *178. A person of weak or unsound mind, not so found by inquisition, answers by his guardian, who is appointed in the same manner as the guardian ad litem of an infant defendant. Ibid. *754. In our state, however, under chancery rule 194, for the purpose of having a guardian appointed for an infant to answer and defend the suit, a petition may be presented b}7 the infant, if above the age of fourteen years, and if under that age, by his father, mother or some other friend in his behalf, praying such appointment. And so by analogy in the case of a lunatic, his father, mother or next friend ma3r apply on his behalf.

In this court it has been held that to warrant the appointment of a guardian, the finding on inquisition must be that the subject thereof is of unsound mind, so that he is unfit for the government of himself, his lands and tenements. See Conover's Case, 28 N. J. Eq. 330; Perrine’s Case, 41 N. J. Eq. 409; In re Lindsley, 43 N. J. Eq. 9. And the court of errors and appeals held in Lindsley's Case, 44 N. J. Eq. 564, that the inquisition must show that the imbecility of mind is such as to render the imbecile unfit for the government of himself, as well as his property, and that a return that the imbecile is an idiot or a lunatic or non compos mentis or of unsound mind, will be regarded as sufficiently showing that fact. See, also, De Hart v. Condit, 51 N. J.. Eq. 611 (Court of Errors and Appeals).

The principle to be deduced from these cases is that a guardian cannot be appointed for the person or estate of one unless his unsoundness of mind renders him unfit for the government of himself and his property; and this applies as well to the appointment of a guardian ad litem to defend a given cause as it does to the appointment of a general guardian on inquisition and office found. There is no suggestion in this case that the defendant is unfit for the government of himself and his property—only that by reason of illness he believes he is unable to give proper attention and care to the preparation of his defense. In this state there are no degrees of insanity, a man is either sane or insane, and there is no borderland or twilight zone between, these two extremes in which a person may be incapacitated by a court order and a guardian appointed for him. The court cannot incapacitate a party, and it may appoint a guardian for him only in case he is himself incapacitated, that is, mentally so unsound as to be unfit for the government of himself and his estate.

The application of the defendant in this case for the appointment of a guardian ad litem for himself must be denied.


text:
    In the matter of the estate of Jean Bard Rogers, a person of unsound mind.
    [Filed June 26th, 1924.]
    1. A person who applies for an order directing the guardian of any idiot, lunatic or person of unsound mind to pay over a portion of the surplus income of his or her estate, not exceeding two-thirds of such income, for her support, maintenance or education, under Oomp. Btat. p. 3793 § lJ/m, must show that he or she is without adequate means of support and dependent upon the bounty of others.
    2. No such order could be made without reasonable notice to the person to be affected thereby.

      3. A lunatic defends by guardian appointed on notice.
    4. Is a statute which would appropriate any part of the estate of one to a brother or sister, because the latter is without means of support and dependent upon the bounty of others (as provided in the act, supra), unconstitutional as a deprivation of property without due process of law. Qnaire.

    On petition for surplus income out of the estate of Jean Bard Rogers, alleged to be a person of unsound mind.

      Mr. Wilfred II. Jayne, Jr.,, for the petitioner.
   Walker, Chancellor.

Florence Hide Rogers has presented a petition setting forth that she is a sister of Jean Bard Rogers, who is incurably insane, and is now, and for some time past, has been confined in the insane asylum at Prefargier, Switzerland; that on January 14th, 1924, letters of guardianship of Jean Bard Rogers, lunatic, were granted by the Ocean county orphans court to Daisy Florence. Rogers, her mother, who has qualified and taken upon herself the duties of such guardianship; that said Jean Bard Rogers is twent3'--five years of age; unmarried, without issue, and has no' brothers or sisters except petitioner; that said Jean Bard Rogers is possessed of an annual income of $4,000, and that the amount necessary and sufficient for her care, support and maintenance at said asylum is $1,200 annually. The prayer is that an order may be made directing such guardian to pay over to the petitioner two-thirds of the surplus income of Jean Bard Rogers in such manner as the court may direct, for the support and maintenance- of petitioner, Florence Hide Rogers, in accordance with the statute in such ease made and provided.

The statute relied upon is a supplement to the act concerning idiots and lunatics. P. L. 1909 p. 313; Comp. Stat. p. 2792 § 14m. It provides that whenever any idiot, lunatic or person of unsound mind shall be possessed of or entitled unto real or personal estate, the annual income of which shall be more than sufficient for the proper support and maintenance of such person, and his o-r her household, and such person shall have a parent or parents, brother or brothers, sister or sisters, of the whole or half blood, who are without adequate means of support and dependent upon the bounty of others, such persons, o-r any o-f them, may apply to- the court of chancery for a decree or order directing the guardian of such idiot, lunatic or person of unsound mind, to pay. over such portion of the surplus income of his or her estate to- the person or persons aforesaid, not exceeding two-thirds of such surplus annual income, for their support, maintenance or education, in such manner as the court may direct.

It is observable that there is no allegation in this petition' that the petitioner is without adequate means of support -and is dependent upon the- bounty of others. There being no averment of these jurisdictional facts, the petition will have to he dismissed. Another thing: It is not shown that the mother was appointed guardian after lunacy found by a jury on inquisition. It is suggested that this may be important in a case falling under the act concerning lunatics. Section 14m, supra.

At common law no duty devolved upon a brother or sister to support an indigent brother o-r sister. It was always the duty of parents to provide for the maintenance of their children, and this is a principle of natural law (1 Bl. Com. 447), in case they are impotent and unable to work through infancy, disease or accident. Ibid. 449. And it likewise was always the duty of children to support their parents in need. Ibid,. 458. This duty devolves upon the father during coverature, and the mother during widowhood. Alling v. Alling, 52 N. J. Eq. 92; In re Ganey, 93 N. J. Eq. 389. See, also, In re Vieweger, Ibid. 527. Our act for the settlement and relief of the poor (Rev. 1911; Comp. Stat. Supp. p. 1174 § 15) provides that the father and grandfather, mother and grandmother, the children and grandchildren, severally and respectively, of every poor, old, blind, lame and impotent person, or other poor person not able to work, being of sufficient ability, shall, at his, her or their charges and expense, relieve and maintain every such poor person as aforesaid. And Vice-Chancellor Fielder (In re Ganey, supra) held that a parent cannot be compelled to support a child except in the manner pointed out by the statute, supra. It follows, of course, that a child cannot be compelled to support a parent except in the same manner. But our statute has not enacted that brothers and sisters should be compelled to support indigent brothers and sisters, except to the extent and as provided in section 14m of the act concerning lunatics. Supra.

Treating of the provisions of the Poor act, in effect, before the Revision of 1911, Mr. Justice Magie (afterwards chancellor), speaking for the supreme court in Ackerman v. Ackerman, 55 N. J. Law 422, held that the relative to be afected by such an order must have reasonable notice and an opportunity to be heard, which notice might be by summons or rule to show cause. Reasonable notice is due process. In re Martin, 86 N. J. Eq. 265, 274- It is true that the section of the former act under review in the Ackermaii Case provided for such notice, while section 15 of the present act does not so provide. Nevertheless, it is fundamental that in every proceeding of a judicial nature it is essential that the person whose rights are to be affected should be a party to the proceeding and have an Opportunity to make a defense. In re Martin, supra. And a lunatic defends by guardian. In re Martin, supra. This is usually a guardian ad litem appointed by the court, although occasionally the general guardian is permitted to defend in the ease of his ward without special appointment, at least, where his interest is not adverse to that of his word. Webb v. Webb, 2 N. J. Adv. R. 1071 (bottom of p. 1073), and in the case sub judice, the mother is guardian of her daughter, a portion of whose surplus income the petitioner, another daughter, seeks for herself; and while the mother might well be relied upon to defend the estate of the daughter for whom she is guardian, against the application of her other daughter, nevertheless, in the circumstances, she ought not to be required to take sides in such a controversy, and an independent guardian ad litem would have to be appointed for the alleged lunatic, on notice to her, of course (Webb v. Webb, supra), if the case were to proceed. But, for the reason intimated above, the petition must be dismissed.

Now, the common law duty to support, devolved upon one person in favor of another, in exoneration of the public, arose out of natural duty. By statute of 43 Eliz. chap. 2 § 7, it was enacted that a father and grandfather, mother and grandmother, and the children of every poor, old, blind, lame or impotent person, or any other person not able to work, being of sufficient ability, shalí, at their own charges, relieve and maintain every such poor person. This statute confines liability to lineal consanguinity in ascending and descending lines (omitting grandchildren)) and is the prototype of our New Jersey statute for the settlement and relief of the poor (wherein we include also grandchildren), but which has not extended the duty of support to brothers and sisters who are collateral kindred, whose duty in that behalf is provided, to a certain extent, in the supplement to the act concerning lunatics. Supra.

It may be that the legislature is powerless to take the property of one and bestow it upon a brother or sister, even for the latter’s support, as an indigent, although the supreme court of Illinois, in People v. Hill, 163 Ill. 186 (the only case on that question which I have found), held that a statute which compelled a brother to support a pauper sister was not unconstitutional as a deprivation of property without 'due process of law. As that question is not before me for decision, I express no opinion with reference to it.

For the reasons given above the application before me must be denied and the petition dismissed.


author: Leaming, V. C.

text:
    Anna S. Alexander, complainant, v. Lucien H. Alexander, defendant.
    [Decided May 5th, 1924.]
    1. Where a wife filed a bill against her husband to recover possession of certain real estate owned by her, and the husband filed a counter-claim in which he seeks specific performance of an ante-nuptial parol agreement to the effect that the wife before marriage promised defendant that if defendant would marry her at an early date she would apply her income to their joint support, the counterclaim should be stricken out as within the inhibition of the statute of frauds relating to contracts “made upon consideration of marriage.”
    2. Contracts made in contemplation of marriage, and contracts made in consideration of marriage, distinguished.
    On bill, &c. Hearing on motion to strike out defendant’s counter-claim.

      Mr. Lewis Bta/rr, for the motion.

      Mr. Lucien H. Alexander, pro se, opposed.
   Leaming, V. C.

In this suit complainant, a wife, has filed a bill in equity against defendant, her husband, to recover possession of certain real estate owned by her. The husband has answered and. also has filed a counter-claim against his wife m which he seeks specific performance of an antenuptial parol agreement. Complainant has moved to strike out this counterclaim on the ground, among others, that its averments are within the inhibition of our statute of frauds relating to contracts “made upon consideration of marriage.”

I am convinced that this motion must be sustained.

The rule in equity that part performance may remove a parol contract from the operation of the statute of frauds does not extend to antenuptial parol agreements made in consideration of marriage. Manning v. Riley, 52 N. J. Eq. 39; Watkins v. Watkins, 82 N. J. Eq. 483; affirmed, 85 N. J. Eq. 217. The act of marriage is not regarded as part performance in that class of cases; indeed, it has been stated by our court of errors and appeals that the equitable doctrine that part performance will remove the inhibition of the statute of frauds applies only to contracts relating to lands, and does not extend to contracts relating to other matters. McElroy v. Ludlum, 32 N. J. Eq. 828, 832.

Fraud, alone, will deny the intervention of the statute. Equity at all times will lend its aid to defeat a fraud, notwithstanding the statute of frauds. But the fraud against which equity will relieve in this class of cases, notwithstanding the statute, is not the mere moral wrong of repudiating a contract actually entered into, which, by reason of the statute, a party is not bound to perform for want of its being in writing. Bro. Stat. Fr. § 439; Manning v. Riley, supra. The fraud must be inherent in the transaction, such as a false representation that a contemplated written agreement has been executed pursuant to the parol agreement, or other similar artifices. The authorities do not appear to support the dictum of Mr. Justice Wells, in Glass v. Hulbert, 102 Mass. 24, as contained on page 39 of the reported case, to the effect that the assurance that a settlement would be executed, will remove the case from the bar of the statute. 2 Story Eq. Jur. (13th ed.) § 768; Montacute v. Maxwell, 1 P. Wms. 618; S. C., Pr. Ch. 526; Eq. Cas. Abr. 19. In the counter-claim here presented no written agreement or settlement was contemplated by the parties and no 'fraud appears.

It is urged in support of the counter-claim that it discloses an antenuptial parol agreement made in contemplation of marriage, as distinguished from an antenuptial agreement made in consideration of marriage.

Adjudications are to be found in which- certain ante-nuptial parol agreements which, though made in expectation or contemplation of marriage, have been enforced on the theory that adequate consideration for their support has been found to exist independently of the contemplated marriage; in such cases the contemplated marriage has been regarded as a mere incident of, and not the consideration of, the agreements. Other adjudications are to be found which specifically repudiate that view.

The several cases adopting the view suggested by counter-claimant appear almost uniformly to- arise in agreements of mutual release. Thus, in Remington v. Remington (Supreme Court of California), 193 Pac.. Rep. 550, the parties by parol agreed each to release all claim to the other’s property. After marriage the formal agreements of mutual release were executed. The claim was made that since the parol agreement was void no consideration existed for the written agreements. The parol agreement was held to have been in contemplation of marriage but not in consideration of marriage, since neither party was to receive anything by the marriage; it was there said that “contracts in consideration of marriage provide for the moving of some benefit to one of the parties as an inducement for marrying.” In Steen v. Kirkpatrick, 84 Miss. 63, the parties by parol agreed before marriage that each should enjoy only a life estate in the other’s property. It was held that the consideration was the mutual releases and not marriage, and hence the contract was merely in contemplation of marriage, since no benefits were to accrue to either by the marriage. Rainbolt v. East, 56 Ind. 538, was also a ease of agreement for mutual release. The antenuptial parol agreement was there held to be in consideration of mutual relinquishment and not in consideration of marriage. Bnt as real estate was included in the contract it was held non-severable and unenforceable under the statute. Larsen v. Johnson, 78 Wis. 300, is also a case in which there was held to be an adequate valuable consideration, with a contemplated marriage as a mere incident. There the husband, before marriage, agreed to perform definite service, including the payment of certain indebtedness of the wife, in consideration of a conveyance to him of certain real estate of the wife. After marriage the service was performed and the debts paid and a conveyance made to the husband pursuant to the antenuptial agreement. In Riley v. Riley, 25 Conn. 154, intestate borrowed money on notes from a lady who seven years later became his wife. In an interview shortly before marriage he promised her that if she would not enforce the notes, they should remain good and collectible against his estate. It was held that this promise was made in expectation or contemplation of marriage, but in consideration of forbearance to collect the notes, and not in consideration of marriage. The view is there adopted that since no benefit was to accrue to either in the event of marriage, it was not possible to consider the marriage as a consideration of the promise.

In a recent case in Washington the prior decisions of the class above named are reviewed and condemned. Koontz v. Koontz, 83 Wash. 180. There the parol agreement was the mutual engagement that neither should share interest in the estate of the other at the other’s death. The claim was made that the consideration was the mutual release, and not marriage. In the reported opinion (at p. 185) it is said: “It is idle to say that the promise of each is made in consideration of the promise of the other. But for the marriage, neither had any right or interest, present or prospective, in the property of the other to relinquish when the promise was made, and neither relinquished or agreed to relinquish to the other any right in his or her own property in any event. The mutual promise related to the property status to be created by the marriage, and which would have no existence but for the marriage. But for the marriage there would be neither subject-matter, actual or potential, nor consideration, present or future, for either promise.” Mallory’s Adm’rs v. Mallory’s Adm’rs, 92 Ky. 316, is another case of mutual agreement to release claims against the other’s property. Held to be within the statute, since the real consideration for the contract was the agreement to marry. Henry v. Henry, 27 Ohio St. 121, was another case of mutual agreement to release. It was there held that the real consideration was marriage, and could not be severed. In Dienst v. Dienst, 175 Mich. 724, the husband gave up his'business prospects to marry. It was there held that the consideration of the wife’s promise was marriage and not the giving up of the husband’s business.

Certain English cases are to be found in which parol agreements in consideration of marriage have been enforced under what is known as the “doctrine of representations.” In Reed Slat. Fr. it is stated that cases of that nature do not apparently extend to representations made by the husband or wife to the other, but are confined to representations made by others, such as parents or guardians. 1 Reed Stat. Fr. § 177 (at ¶. 289).

I find nothing in the agreement set forth in the counterclaim, against which this motion is directed, to remove it from the operation of our statute. It was a parole agreement upon the part of defendant, now the wife, that if counter-claimant, her present husband, would marry her at an early date she would, after marriage, apply her income and property to the personal expenses of herself and her husband. It was a parol promise made by her in. consideration of marriage; a promise made to induce counter-claimant to marry her. The circumstance that counter-claimant, by the marriage, may have sacrificed his business prospects or suffered other detriments, renders the contract no less one made by defendant in consideration of marriage. Since her promise was made solely in consideration of marriage no element of consideration based upon detriment suffered by him can change that plain fact. It is that fact that renders her promise unenforceable. Nor is the fact that for some years the wife has applied her income to the joint support of herself and her husband to be regarded as a part performance operative on the statute. When part performance can be considered, it is only part performance on the part of the party seeking performance that in any case can be considered as invoking equitable considerations. Russel v. Russel, 60 N. J. Eq. 282, 287, 288; affirmed, 63 N. J. Eq. 282. But, as already stated, in this class of cases marriage cannot be considered as part performance. Manning v. Riley, supra.

The counter-claim contains excerpts from letters passing between counter-claimant and defendant before their marriage, leading up to the final agreement; but the agreement as finally made is specifically declared in the counter-claim to have been a parol agreement. That agreement is set forth in paragraph 17 of the counter-claim as follows: “Defendant [counter-claimant] avers the proposed financial arrangement in its final form, while general in its terms as to both income and property, was unlimited both as to time and amount, yet was clear and definite as to its terms. The offer was orally made, and was that complainant [defendant in the counterclaim] was willing to use them for the personal expenses of herself and defendant [counter-claimant], . should they marry.” Again, in paragraph 27 of the counter-claim, the agreement here sought to be enforced is referred to as a “parol antenuptial agreement between her and defendant.”

Specific objections are also made to various paragraphs of the counter-claim. These need not be considered. The objections to the entire counter-claim will be sustained for the reasons herein stated.


author: Lewis, V. C.

text:
    Mary S. H. Miller and Clause E. Miller, complainants, v. Walter C. Shoup et al., defendants. Jennie S. Sykes et al., complainants, v. Walter C. Shoup et al., defendants.
    [Decided April 17th, 1924.]
    1. Where second preferred stock of a corporation was regularly canceled on the books of the company, it cannot be re-established without affecting the lights of the common stockholders.
    ' 2. Where second preferred stock of a corporation is alleged to have been canceled on false representations in respect to the financial condition of the company, the court must be satisfied from: the evidence that there was no such necessity, and that the statements showing the necessity were untrue when made, in order to grant relief to the former holders of such stock.
    3. Evidence examined and held not to show fraudulent representations as to the financial condition of the company at the time the second preferred stock was surrendered for cancellation.

      Messrs. McDermott, Enright .& Carpenter, for the complainants.

      Mr. Merritt Lane, for the defendants,
   Lewis, V. C.

This controversy was begun by a bill of complaint filed by Henrietta P. Shoup in 1920, but her ease was settled. In the same year a bill was filed by the complainant Mary S. H. Miller and Clause E. Miller, her husband, and later a bill of similar purport was filed by Jennie S. Sykes and Engene Lanier Sykes. These parties, including the defendant Walter C. Shoup, are all members of the same family. The controversy arises over the cancellation of the second preferred stock of the Autographic Register Company, in which the active figure was Walter C. Shoup. Henrietta P. Shoup is the mother of.Walter and Mrs. Miller and Mrs. Sykes are his sisters. The business of the Autographic Register Company was established by James 0. Shoup about 1884 to sell a device invented by him. He was the father of Walter C. Shoup, Mrs. Miller and Mrs. Sykes. Mr. Shoup died on August 14th, 1898. In addition to the children just before mentioned, he left two sons, A. Hardy Shoup, who is not a party to this litigation, and George C. Shoup, now deceased. Mr. Shoup gave practically all the stock of his original corporation to his wife shortly before his demise. On the death of his father his son George continued to manage the business until his death, November 5th, 1908. The concern was originally incorporated in New York, but in 1900 became a Now Jersey corporation.

On February 9th, 1910, Mrs. Henrietta P. Shoup and her surviving children entered into a family agreement for the division of the business among the children. Hnder the terms seventy-five thousand dollars ($75,000) of the first preferred stock of this company was placed in trust, the income to be paid to Henrietta P. Shoup during her life, and after her decease the corpus to be divided equally between Mary S. H. Miller and Jennie S. Sj'kes. Likewise, under the terms of this family settlement, Mary S. H. Miller received twenty-five thousand dollars ($25,000) of the second preferred stock, and Jennie S. Sykes received twenty-five thousand dollars ($25,000) of the second preferred stock.

In February, 1915, it being represented that the company was in financial difficulties,- both Mary S. H. Miller and Jennie S. Sykes surrendered their second preferred stock for cancellation. The twenty-five thousand dollars ($25,000) of second prefered stock owned by the Millers was sent to Walter C. Shoup on February 9th, 1915, and later the second preferred stock held by the Sykes was sent to him. All this second preferred stock was canceled on the books of the company in February, 1915. The business of the company was reorganized. The corporate edifice was completely changed. The cancellation of this second preferred stock owned by the complainants effaced the entire issue of second preferred, and common stock has been sold from time to time as appears by the stock book. The common stockholders bought with reliance, that the second prefered stock had been canceled. A decree could not be made to re-establish this second preferred stock without affecting the rights of the common stockholders, but none of them have been made parties to this proceeding.

. Walter 0. Shoup continued to manage the business under the reorganization, and no demand was made by either of the complainants for any accounting with respect to this second preferred stock, or for any relief whatsoever in reference thereto until 1920, or five years after the event, when the bill above referred to was filed by the mother, Henrietta P. Shoup. I need not review Mrs. Shoup’s case. It was settled, and the complainants filed their bills, and, subsequently, proceeded to hearing before me. There was a great amount of testimony taken and the final briefs were not filed until last year. It is asserted by the complainants that they were led to cancel their second preferred stock upon false representations made by their brother, Walter 0. Shoup, with respect to the financial condition of the company in February, 1915, and that the company was not in financial straits at that time. To retain the bill I must be satisfied from the evidence that there was no necessity for the cancellation of the second preferred stock, and that the statements made by Walter C. Shoirp to his sisters, in respect to the financial condition of the company, were untrue. The testimony offered by the complainant to support their case is not satisfactory, and I think a perusal of the evidence will convince anyone that the company was seriously involved and practically insolvent at the time of the cancellation, and that Walter C. Shoup’s representations to his sisters were made in good faith. Shoup at this time had exhausted all his resources; his avenues for raising of money were closed, and the endorser on his paper in the bank had refused to continue further unless the second preferred stock was canceled. In the middle of January, 1915, Shoup had his final talk with this endorser, George C. Edwards, and was told that something must be done to solve the situation. He then consulted with Mr. Justice P. Sheffield, and, at Mr. Sheffield’s suggestions, it was decided to apply for a receiver, and the firm of McCarter & English was named to file a bill for this purpose. Shoup had to move speedily to save the situation, for it is clear that he was in great financial distress, but I cannot say that, in procuring his sisters’ stock, he was dishonest with them. There was no promise on his part to do anything with respect to the second preferred stock which they owned except to cancel it. A perusal of the testimony of the Millers and Sykes must lead one to the conclusiop. that they were not deceived as to the situation, and there was ample time afforded them to refuse Shoup’s proposition if they did not regard it as advantageous. All complainants had due notice of the meeting when the stock was canceled, and they were not left in the dark on any matter connected with the transaction. They knew that it was the life of the company that Was at stake, and the fact that it has prospered since they gave up the stock does not give them any right, because of their prior holdings, to participate now. The prosperity which has come to the company since the event may in some measure be attributed to the effect of the great war on business generally, but it is not necessary to dwell on this phase of the case. Of course, the success of the company may be assigned as one cause for this tardy litigation, and not the alleged misrepresentations of Walter C. Shoup.

Another motive which may have induced the complainants to proceed against their brother at this late day was this: Walter remarried in October, 1920, and it was not until this occxxrrence in the same month that Mrs. Henrietta P. Shoup retained counsel in the present proceedings. This is rather significant, as it must have occurred to Mrs. Shoup and her daughters that the money might go out of the family.

A fact of moment in connection with this litigation, and one which it is important to consider in disposing of it, is, that although Mrs. Miller and Mrs. Sykes lost their second preferred stock, they, nevertheless, were benefited by the reorganization of the company and its accompanying success. If the company had gone into the hands of the receiver the first preferred stock could not have been paid, and in this stock they both have an interest as the daughters of Mrs. Henrietta P. Shoup. Under the family agreement, upon the death of their mother, Mrs. Miller and Mrs. Sykes each gets one-half of the first preferred stock. This must have been a strong inducement for cancellation if the true situation of the company was apparent to them, as I believe it was.

, The bills must be dismissed.


text:
    Alexander Von Fell, complainant, v. Amalia Spirling et al., defendants.
    [Decided May 6th, 1924.]
    Where it is plain from the face of a will that the testator intended to include a step-cliild and lier children by the words “children” and “grandchildren,” such step-child and her children are entitled to share in the distribution of the estate under the provisions of the will.
    On bill for construction of will. On pleadings and proofs.

      Mr. Le Roy Vander Burgh and Mr. Wendell J. Wright, for the complainant.

      Mr. Robert Carey, for the defendants Amalia, Wilma, Norma, Hilda and Charles Spirling.

      Messrs. Morrison, Lloyd & Morrison, for the defendants George Yon Fell and Norma Yon Fell.
   Lewis, V. C.

The bill in this case was filed to obtain a construction of the last will and testament of Otto Yon Fell, deceased. It alleges that the estate is ready for distribution, if a distribution can be had at this time under the terms of the will.

The defendants have answered and joined in the prayer of the bill. In the construction of the will the following questions are submitted:

(a) If the step-daughter of deceased and her children are entitled to share in the residuary estate; (b) is complainant a trustee under the provisions of the third paragraph of the will requiring him to hold the share of each minor child until such child shall arrive at the age of twenty-two years; (c) if under the third paragraph of the will above referred to complainant is to retain both the legacies given by the first paragraph and the share of such child in the residuary estate until the child arrives at the age of twenty-two years, or does the third paragraph relate only to the legacies given by the first paragraph; (d) is such minor child whose legacies or share is held under the third paragraph of the will entitled to receive the net income from such legacy or share, or is it to accumulate until the child arrives at the age of twenty-two years; (e) in case of the death of a minor child before arriving at the age of twenty-two years, will the legacies given such child by the first paragraph of the will lapse or will the representative of such child be entitled to same.

The pertinent portions of the will are as follows:

“First, after my lawful debts are paid, I give and bequeath the following legacies, namely: the sum of five thousand ($5,000) dollars to my son Alexander Von Veil; the sum of one thousand ($1,000) dollars to my daughter Amalia Spirling; the sum of one dollar ($1) to my son George Von Fell; the sum of two thousand ($2,00) dollars to my granddaughter Wilma Spirling; the sum of two thousand ($2,000) dollars to my granddaughter Norma Spirling; the sum of two thousand ($2,000) dollars to my granddaughter Hilda Spirling; the sum of two thousand ($2,000) dollars to my granddaughter Norma Von -Fell; the sum of two thousand ($2,000) dollars to my granddaughter Henrietta Von Fell; the sum of two thousand ($2,000) dollars to my grandson Edmund Von Fell; the sum of two thousand ($2,000) dollars to my grandson Charles Spirling.
“Second. I give, devise and bequeath to my children and grandchildren mentioned above, excepting my son George Von Fell, all the rest and remainder of my estate, both real and personal, share and share alike.
“Third. I give to my executor hereinafter named five per cent, of niy whole estate for his services.
• “The legacies of any of the above named are to be retained by the executor until they reach the age of twenty-two years.
'“Likewise, I make, constitute and appoint my said son Alexander Von Fell to be my executor of this, my last will and testament, without bonds, hereby giving and granting to my executor full power and authority to grant, bargain, sell and convey any or all my lands at such time and upon such terms as to him may seem fit.”

TEe testator was eighty-three years of age at the time of his death. He died in November, 1922. The will was made in Majq 1922, and a few days after it was executed the testator sailed for Germany on a visit, and died there as a result of an operation which he underwent. He had been in good general health until that time.

The testator had been twice married. He had no children by his first wife. His second wife was a widow with one child by her former husband. That child is the defendant designed as Amalia Spirling, and she is the step-daughter of the testator. She was a child of about eight years of age at the time testator married her mother. She now has four children, namely, Wilma, Hilda, Norma and Charles.

Alexander Yon Fell and George Yon Fell are children of the testator by his second marriage. Alexander Yon Fell has one child, Edmund, and George Yon Fell has two children, Henrietta and Norma.

By the first clause of the will certain bequests were made to the children and grandchildren named therein, and by the second clause the residue of the estate was devised by testator to his “children and grandchildren mentioned above,” except his son George, to be divided among them equally.

The present contest arises through the claim of the stepdaughter, Amalia Spirling, and her four children, to participate in the distribution of the residuary estate under the second clause of the will, as “children” and “grandchildren” of the testator. This claim, however, is resisted by testator’s own son Alexander Yon Tell, and his child, Edmund, and the two children of testator’s own son George Yon Tell, who claim that they are the only ones that are meant to share in the residuary estate under the provisions of the second clause of the will referred to.

It is the contention of this latter group that the words “children and grandchildren mentioned above,” contained in the residuary clause, limits the distribution of the residuary estate technically to testator’s own children and grandchildren, and excludes from participation therein his stepchild and her children.

The other group, however, contend that they also are entitled to participate in the distribution of the residuary estate, because (1) they were specifically named as “daughter” and “granddaughter” and “grandson,” respectively, in the first clause of the will, and hence, fall within the description of the language “children and grandchildren mentioned above” in the residuary clause; and (2) because testator had always referred to them as his child and grandchildren, and had specifically instructed the draftsman of the will to include them in the group to take under the residuary clause.

Evidence was offered, showing clearly the testator’s practice in this regard. The scrivener testified that the testator, at the time the will was prepared, described the parties to him to enable him to draft the will, and that all the data was given him by the testator; and that when the testator gave him the data of the various bequests desired to be made under the first clause of the will, the testator also stated that he wanted the residuary estate divided among the same persons as already described by him, with the exception of his son George. In re Gluckman's Will, 87 N. J. Eq. 638; Veader v. Veader, 89 N. J. L. 399; State v. Ready, 88 N. J. L. J. 112, citing (at p. 114) with approval Sugden v. Lord St. Leonards, L. R. 1 Pro. Div. 154; Rusling v. Rusling, 36 N. J. Eq. 603, also citing with approval (at p. 608) Sugden v. Lord St. Leonards, supra.

There can be no doubt from this evidence that it was the intention of the testator that his step-daughter, Amalia Spirling, and her children, should participate in the distribution of the residuary estate, but, regardless of that evidence, I think that testator’s intention, as indicated, is also clearly to be gathered from the face of the will itself. There could be no object in testator’s designating Amalia Spirling as his daughter, and her children as his granddaughters and grandson, in the first clause of the will, unless he desired it to be clear that he regarded them as such, and intended that they should be included in the group of children and grandchildren as designated in the residuary clause of the will, otherwise he could have merely made the bequests to them,' by name, in the first clause, without the description of relationship, and that would have been the end of it.

Testator must be taken to have used the designation with some object and purpose, otherwise it would be meaningless, and I cannot disregard the express language of the will and say that it meant nothing. I hare no doubt that he intended to clearly define just whom he intended to take under the residuary clause when he used this language and description in the first clause.

Furthermore, it is significant that in the residuary clause, testator used the words “my children,” excepting, however, his son George. Kow, if, under that clause he had not intended that his step-child should also share in the residuary estate, there would have been no necessity for the use of the words “my children,” for, after excluding his child George from participation in the residuary estate, he had but one child remaining, Alexander.

My conclusion is, therefore, that on the face of the will it is plain that the testator meant that his step-daughter and her four children should -share in the distribution of the residuary estate, and, buttressed by the testimony of the scrivener, which, under the eases cited I am satisfied is competent, this conclusion becomes irresistible.

The other questions submitted, which have not been argued by counsel, may be disposed of upon the settlement of the terms of the decree.

I will therefore advise a decree in accordance with these views.


text:
    Nellie T. Kelleher, complainant, v. George H. Bragg, defendant. Elizabeth Driscoll, complainant, v. George H. Bragg and Nellie T. Kelleher, defendants.
    [Decided May 15th, 1924.]
    1. Specific performance is a remedy within the sound discretion of the court, and should not be granted unless the right thereto is clear and conclusively established, and the burden of establishing it is on the complainant.
    2. A real estate agent, having property in her hands for sale, should use her best endeavors, on behalf of the owner, to accomplish a sale advantageous to him, and where the agent purchases this property personally, a court of equity does not look upon the transaction with favor, and where a fiduciary relation also exists between the agent and the owner, this court will not enforce specific performance of a somewhat informal agreement of sale."’
    On bill for specific performance, &e. On pleadings and ' proofs.

      Mr. Edward, A. Marlcley, Mr. David A. Neiolon, Mr. Benjamin F. Dowden, Mr. Charles M. Egan, of counsel with Nellie T. Kelleher.

      Mr. Thomas J. Brogan, of counsel with Elizabeth Driscoll.

      Mr. Charles M. Mason, of counsel with George Bragg.
   Lewis, V. C.

The complainant, Nellie T. Kelleher, filed her bill against the defendant George H. Bragg, to compel specific performance of wdiat she contends to be a contract to convejr to her certain real estate situate in the city of Jersey City, which reads as follows:

“Jersey City, N. J.
Feb. 2nd, ’21.
Received from N. T. Kelleher $100.00 as deposit on property known as 2709 and 2711 and 2713-2713a Boulevard, price to be $31,-000. Terms to be $3,000 cash, balance to remain on mortgage, 1st mortgage of $12,000 to be assumed by purchaser, mortgage held by Carteret Trust Co., otherwise mortgage to be arranged by purchaser.
Signed, this 2nd day of Feb., 1921.
Geo. H. Bragg,
N. T. Kelleher.
Witnesses by A. Black.”

Miss Kelleher conducted a real estate business in Jersey City through the medium of the Boulevard Realty Company, a corporation. A short time prior to the making of the memorandum upon wfhich the suit for specific performance is based, Bragg executed the following document:

“Jersey City, N. J.
Jan. 15, 1921.
I hereby agree to give the Boulevard Realty Co. the privilege of selling property known as 2709, 2711, 2713 and 2713a Boulevard-Giving them the exclusive right and agency to sell same and price to be $35,000 and commission to be paid to the Boulevard Realty Co. Said privilege to extend for thirty days. Terms to be $3,000.00 cash and balance on mortgage.
Signed George H. Bragg.
Allie Black, Witness.”

Miss Kelleher testified that she endeavored to sell the property in accordance with the authorization of January loth, 1921, hut was unsuccessful, and she thereupon made Bragg an offer to purchase the property herself in accordance with the terms set forth in the memorandum of February 2, 1921.

Bragg, however, testified that he understood that the property was being sold to Mrs. Driscoll, whom he desired to have it, and that he did not know that Miss Kelleher was to become the purchaser. Mrs. Driscoll claims that whatever Miss Kelleher did with respect to the purchase of the property from Bragg, was done by Miss Kelleher in Mrs. DriseolPs behalf, and as her agent, and for her benefit, and she therefore, filed her bill to establish a resulting trust in her favor as to the property in question, in the event that specific performance be decreed in favor of Miss Kelleher as against Bragg; but Mrs. DriscolPs testimony in this respect is not positive, and, on the other hand, seems to indicate that she never concluded to bind herself to take the property. And Miss Kelleher denies that she acted for Mrs. Driscoll in the purchase of the property, and asserts that Mrs. Driscoll refused to go into the transaction with her.

Bragg testified that he is about fifty-one years old, but he is not certain as to his age, and the indications are that he is much older than he states himself to be. His demeanor and actions also indicate a feeble condition of mind; he is far from being mentally alert. Miss Kelleher has very much the superior intellect.

Aside from the contract itself, which is but a memorandum in the form of a receipt, and which Bragg denies having agreed to, although he admits having signed it, the evidence in the case is limited to that of the three parties to the respective suits, viz., Nellie T. Kelleher, Elizabeth Driscoll and George H. Bragg; each one tells a different story, and each endeavors thereby to obtain the advantage of the other with respect to the property involved, which has doubtless increased materially in value since the alleged transaction took place.

Bragg paid $32,500 for the property when he bought it, at a time when real estate values were much lower than at present. He gave Miss Kelleher’s realty company the privilege of selling the property for $35,000, and she and her company were his agents to obtain a purchaser t'o his best advantage. She had her office in the building sought to be sold, and she desired to remain there, and negotiated with Mrs. Driscoll for a ten years’ lease in the event that Mrs. Driscoll should become the purchaser of the property.

Miss Kelleher testified that she offered the property for sale to several persons, but was unable to recall more than one. She also testified that she advertised the property for sale, but did not specifically identify it in the advertisemer+ This, she stated, was customary in the trade.

Bragg testified that Miss Kelleher told him that Mrs. Driscoll had purchased the property finally for $31,000, and had left the memorandum and a check for $100 on account for him, but when he spoke to Mrs. Driscoll about it, Mrs. Driscoll stated that she had not made the memorandum or the check. He thereupon refused to cash the check and said that he never would have received it from Miss Kelleher had he realized that it was hers and not Mrs. Driscoll’s. He desired Mrs. Driscoll to have the property because of old friendship, and because she had said that he could always have a room in it for himself. Mrs. Driscoll appears never to have taken any steps to assert her alleged rights either as against Miss Kelleher or Bragg until after the suit for specific performance was commenced by Miss Kelleher.

Specific performance is a remedy within the sound discretion of the court, and should not be granted unless the right ant has the burden of proof in establishing her right to thereto is clear and conclusively established. The complain-specific performance, and, under the circumstances of this case, I do not feel that she has sustained the burden.

Taking the testimony as it stands, she, or her realty company, was the agent of Bragg to sell the property, and she should have exerted her best efforts in Bragg’s behalf to accomplish a sale advantageous to him. If what Mrs. Driscoll says is true, Miss Kelleher was also acting in her behalf as a purchaser, and under those circumstances she would be bound to use her best efforts in order to accomplish the most advantageous results to the purchaser. This is a position which a court of equity does not look upon with favor. And Miss Kelleher appears to have gone one step further than is usual in such a situation, and became the purchaser herself, which, according to the claim of Bragg and Mrs. Driscoll, left them both high and dry.

In addition to this, it must he borne in mind that Bragg’s enfeebled mental condition made it easy for the superior intellect to take advantage of him, and he had no advisor except Miss Kelleher, who, as his agent, occupied -a fiduciary relationship to him.

I am therefore constrained to refuse to grant specific performance to the complainant Kellie T. Kelleher, and to dismiss her bill. It follows that the hill of Elizabeth Driscoll must also be dismissed.

I will therefore advise a decree in accordance with these views.


text:
    Mi1chael S. Mitchell, petitioner-respondent, v. Catherine Mitchell, defendant-appellant.
    [Filed July 15th, 1924.]
    1. By the established practice of our court of chancery a proceeding to open and vacate a decree, whether before or after enrollment, may be instituted by petition and order to show cause.
    2. Such proceeding may be instituted after the time for appealing from the decree has expired, for surprise or upon some new matter discovered after the decree, and which could not have been used at the time the decree was made.
    J. A decree may be opened partially and only for the purpose of permitting a rehearing.

      4. The question whether a final decree shall be opened rests in the sound discretion of the court of chancery, and a rehearing is always granted when the court sees reason to apprehend that a mistake may have been made in law or in fact.
    5. Evidence examined and held to warrant a rehearing.
    On petition of defendant for a rehearing.

      Mr. Alexander R. Be Seva and Mr. Alexander Simpson, for the petitioner.

      Mr. George E. Quigley, for the respondent.
   Lewis, V. C.

In this case a decree nisi of divorce was granted to the petitionar against the defendant, July 12th, 1918, and a final decree January 13th, 1919. On February 2d, 1920, a petition was preferred praying that the decrees nisi and final, theretofore entered against the defendant, be vacated and set aside; that the same had been fraudulently procured; that petitioner had no notice of the proceedings and no opportunity to have her day in court, and that she was not guilty of the matters and things recited in the petition—that is, that she was not guilty of desertion; that at no1 time was she personally served with any notice of proceedings (for divorce), although at all times her husband knew her address, and that she first learned, in or about the month of November, 1919, from a letter from the petitioner’s sister in Germany, that her husband had secured a divorce from her and was married a second time; that the depositions made against her were false, that she never refused to live with him, but that she has always been eager and willing to live with him. Shall the rehearing be granted?

Although no objection was made or question raised as to the procedure pursued in this matter, nevertheless three questions suggest themselves:

1. Whether the proceeding to open the decree may be taken by petition instead of bill of review.

2. Whether such proceeding can be instituted after the time for appealing from the final decree has expired.

3. Whether the decree may be opened partially and only for the purpose of permitting the question presented to be tried.

First. As to whether the proceedings to open a decree in chancery may be by petition instead of bill of review.

By the practice of the high court of chancery in England a bill of review, or a bill in the nature of a bill of review, was the method to procure a reversal, alteration or explanation af a decree. If the decree had been signed and enrolled a bill of review had to be filed; if not, the bill was in the nature of a bill of review. A bill of this character could only be brought upon error of law appearing upon the face of the decree or upon some new matter which had been discovered after the decree, and could not possibly have been used when the decree was made. Dan. Ch. Pl. & Pr. (6th ed.) 1575. Application had to be made for leave to file such bill, and was usually made by petition, but was also allowed to be made on motion. The petition or notice of motion was served oar the other parties to the cause. Ibid. 1578. If the decree had not been enrolled the application could also be by petition for rehearing. Ibid. 1072. The same practice obtains, in this state. See the form of order for leave to file a bill of review on discovery of new matter, which recites the filing of the petition, praying for leave to file the bill, and its coming on to be heard bv counsel of all parties, &c. Dick. Ch. Prec. (rev. ed.) 508. See, also, the petition for a rehearing where the decree lias been filed but not enrolled (Ibid. 182), and the notice of presenting the petition for rehearing and order for rehearing, reciting due notice to counsel for the parties. Ibid. 185.

Tn our state the decisions seem to have been somewhat variant. For instance, in Cook v. Weigley, 69 N. J. Eq. 836, the court of errors and appeals affirmed an order appealed from upon the ground that the validity of a decree of the court of chancery, after it had been affirmed on appeal, cannot be brought- in question by a petition; that a bill of review is the only proceeding by which such a decree may be challenged, and it majr not be done even by that proceeding unless the conditions existed which justified the filing of such a bill, and. that the court then recently (in Watkinson v. Watkinson, 68 N. J. Eq. 632) had occasion to point out what the conditions were.

In Sparks v. Fortescue, 75 N. J. Eq. 586, it was hold by the court of errors and appeals, in a ease where a petition to open a decree had been filed after the expiration of the period within which an appeal might be taken, that such a petition should not be entertained, and that the only proper proceeding by which such a decree could be challenged was by bill of review.

It is to be observed that this decision, like that in the Watkinson Case, supra, is to the effect that a petition will not lie to open a decree after ike limp limit for appeal had expired, but only a bill of review.

In Cumberland L. Co. v. Clinton Hill L. & M. Co., 84 N. J. Eq. 557, Vice-Chancellor Emery said (at p. 566), that final decrees axe opened by bill of review is a settled rule in this state, and that such a bill cannot, be filed after three .years (the then period for appeal), except for new evidence discovered after the decree.

But the court of errors and appeals in Jones v. Read-Jones, 84 N. J. Eq. 479, Mr. Justice Parker, writing the opinion, said (a.t p. 480) that there was adequate authority for the proposition that, when fraud or surprise axe relied on to opon an apparent default, a decree may be opened on petition, even after enrollment, citing cases. And Vice-Chancellor Backes, in the same case in this court (Jones v. Jones, 82 N. J. Eq. 558), observed (at p. 561) that, as he understood it, the court of errors and appeals in the Walkinson Case, and those that followed, did not intend to lay down a hard and fast rule which was to obtain under all circumstances and conditions, nor prevent this court from proceeding by petition in a case where a bill of review would lie.

The latest case on the question of proceedings to> review a decree in this court is to be found in the opinion of the chancellor in Shinn v. Smiley, 94 N. J. Eq. 583, m which he observed (at p. 585) that it was, doubtless, the English practice to proceed by bill of review, which may still be'resorted to in this state, but that it is, however, an established practice in this court to permit of applications for rehearing by petition.

In White v. Smith, 65 Atl. Rep. 1017, Vice-Chancellor Garrison said (at p. 1018) that, under the authorities, it is proper practice to apply by petition to vacate an enrollment and open a decree, and that it is to be encouraged, if not exclusively prescribed. In Boyer v. Boyer, 77 N. J. Eq. 144, Vice-Chancellor Learning said (at p. 145), that the modern practice in this court has been to proceed by petition and order to show cause on application to open a final decree, which simplifies the practice and procures an early determination.

.After all, this question concerns only a matter of practice in the court of chancery, and the. practice of proceeding by petition has been in vogue for upwards of a century. Shinn v. Smiley, supra.

The first reported case in this state oar the question of rehearing is Glover v. Hedges, Sax. 113. The bill was one for injunction and relief, and was dismissed on the hearing. Complainarat filed a petition for a rehearing, but Chancellor Vroom adhered to his former decision and dismissed the bill.

Perrine v. White, 86 N. J. Eq. 1, was heard on petition for a rehearing oar arew trial, duly verified. After hearing Charrcellor Ruoryon dismissed the petition. On appeal (S. C. (McDowell v. Perrine), 36 N. J. Eq. 632), the court of errors and appeals, iar an opinion by Mr. Justice Parker, observed that the appeal was from an order dismissing appellant’s petitioar to open a final decree, but aro criticism was made of this course, and the order dismissiarg the petition was affirmed.

In Miller v. Rushforth, 4 N. J. Eq. 174, the defendant applied by way of verified petition for the opeoriarg of a decree after enrollment, which was opened for the purpose of ascertaining the amount of credits to which the defendant was entitled on the mortgage.'

Upon the authorities, therefore, it seems to me that there is abundant ground for the proposition that a rehearing may be had, even after enrollment, by petition. The party respondent, who holds the decree, is not harmed, for he has the same opportunity to litigate on the order to show cause the question as to whether a rehearing should be granted, as he has on application for leave to file a bill of review. The practice on such a bill is antiquated, cumbersome, tedious and expensive. The practice by petition is modem, simple, expeditious and less expensive. It has everything to commend it, and I agree with the chancellor, and Vice-Chanceilors Garrison, Learning and Backes, that it should be upheld as the established practice of this court. In the case at bar, as already remarked, the respondent makes no objection to the proceeding by petition instead of bill of review.

Second. There can be no doubt of the petitioner’s right to institute this proceeding after the time limited for appeal has expired. Formerly, an appeal from a final decree could be taken within three years; now, by statute, the time has been reduced to one year, except in certain cases not here pertinent. But the Divorce act (P. L. 1907 p. 474 21) provides that appeals shall be taken only from the decree nisi and not from the final decree, and shall be taken within six months from the filing of the decree nisi. The strict law of review might operate to prevent the filing of a petition either for leave to file a bill of review or for a rehearing after the final decree had been entered. But it is, and always has been, the law that a rehearing could be had after the time for appealing has expired, for new matter discovered after the decree, which could not have been used when the decree was made. Watkinson v. Watkinson, supra, expressly holds this. And the petition in the instant case avers surprise and fraud practiced upon the petitioner.

Third. While it is probably true that proceedings for review and rehearing of a decree in chancery may be entertained without opening the decree to any extent, nevertheless, it is quite the practice, both in equity and at law, to open decrees and judgments for limited purposes, such, for instance, as letting in a defense. There are many such cases in this court, and one from the law courts will serve to illustrate the practice. In McTague v. Pennsylvania Railroad Co., 44 N. J. Law 62, a judgment was opened on terms of letting the judgment and execution stand as security. Chief-Justice Beasley, speaking for the supreme court, said (at p. 64) that if the defendant desired a trial on the merits the proceedings would be so far opened and no further, and the judgment, execution and proceedings already taken would stand as security to the plaintiff.

Fourth. As to the meritorious question involved, the right of the defendant to have the cause reheard. This question rests in the sound discretion of the court. In Williams v. Lowe, 79 N. J. Eq. 173, the court of errors and appeals held that whether or not the final decree shall be opened is discretionary with the court of chancery, and that that court would not review such order for the mere purpose of substituting its discretion for that of the court of chancery. In Brumagim v. Chew, 19 N. J. Eq. 337, it was held in this court that a rehearing is always granted.when the court of chancery sees reason to apprehend that a mistake may have been made in the decision, either in law or fact. It is true that Chancellor Zabriskie said in that case that such rehearing is not granted when the introduction of new evidence is necessary to show the mistake, but he was not referring to evidence newly discovered, remarking (at p. 338) that no error was suggested as to facts except as to what, in fact, was the law of New York as to the fact of a judgment, &c.

Fifth. As to the facts relied on for rehearing, the suit for divorce was instituted April 24th, 1917. The defendant and her witnesses say that she had a residence at Union Hill, this state, but she was not served personally. Publication was resorted to and the notice and order were mailed to a New York address, but returned to the sender. The claim of the petitioner is that the defendant evaded service, but this is not convincingly shown, and, moreover, the testimony discloses that both petitioner and his solicitor admit meeting and conferring with the defendant during the pendency of this suit prior to and after the ex parte hearing occurred before the special master, and no effort was made to serve her or give her copies of papers in the divorce case. Solicitor of the petitioner says that in one of these interviews with the defendant he told her to get an attorney—that her husband had started a. divorce and informed her- as to what the petition contained. In the interviews between George R. Simpson, a New York attorney and friend of the defendant-, and the solicitor of the petitioner, which interviews were held, it is claimed, for the purpose of effecting a reconciliation and the evidence indicates that the claim is true, the former says that he was not advised as to the progress of the divorce suit. This is denied by solicitor of the petitioner, who says the divorce proceedings were discussed. There is a telegram-in evidence, alleged to have been signed by Catherine Mitchell, to the clerk in chancery, reading as follows:

“Pleased that I have additional time in Michael S. Mitchell, petitioner, and Catherine Mitchell, defendant, No. 32-230. Have had no papers served on me. My address is 775 East Boulevard, Weehawken, N. J.”

Defendant says that she did not send the telegram and knew nothing about it. She testifies the first she learned of the divorce was in November, 1919, in a letter from petitioner’s sister in Germany, and through her attorney she started'proceedings to have the decree opened. The petition for this was filed in January, 1920. After the entry of the decree nisi, the petitioner called upon the defendant and had her sign and swear to a questionaire that she, as his wife, was dependent upon him for support to enable him to avoid the draft, leading her to believe that no- divorce proceedings had been instituted. The petitioner has remarried, but a brief perusal of the testimony clearly shows that the present Mrs. Mitchell, was not an innocent third party.

A consideration of the case leads me, unhesitatingly, to the conclusion that a studied effort was made by the petitioner to keep the defendant in the dark as to his action against her, and thus prevent her from having a day in court. I believe he could have secured personal service of the original process upon her had he SO' desired.

The views above expressed lead to the granting of the application for rehearing.

Order accordingly.


author: Baches, V. C.

text:
    Benjamin Klein, complainant, v. John J. Stamler, defendant.
    [Decided April 26th, 1924.]
    Permission in writing to enter lands for the purpose of repairing an adjoining building is a mere license, not an easement; is personal, revokable, not assignable, and is terminated by a conveyance by either the licensee or licensor of his land.
    On final hearing.

      Mr. Samuel Roessler, for the complainant.

      Mr. Samuel Koestler, for the defendant.
   Baches, V. C.

The complainant agreed to sell to the defendant, 825 Elizabeth avenue, Elizabeth, free of encumbrance, and the defendant agreed to buy. The defendant refused to take title, and brought an action at law to recover the down money, and upon the filing of this bill, to compel him to perform, the action at law was restrained. The building on the land extends over the adjoining lot six inches. By deed made by a former owner of the adjoining lot to the former owner of the land in suit the right to maintain the encroachment was granted. In the deed, and in consideration thereof, the former owner of the land in suit covenanted and agreed to permit the former owner of the adjoining lot to enter upon the premises in suit for the purpose of repairing or painting the easterly side wall of his house. The defendant refused to take title because of the encroachment and the permission, claiming that the title was not marketable. At the trial he waived the first objection and defended on the ground of an easement of the adjoining owner in the land in suit.

The permission to enter for the purpose of repairing and painting was a mere license, not an easement, was personal to the former owner, revokable, not assignable, was not terminated when he or the licensor conveyed. 25 Cyc. 644; East Jersey Iron Co. v. Wright, 32 N. J. Eq. 248; Eckert v. Peters, 55 N. J. Eq. 379; Standard Oil Co. v. Buchi, 72 N. J. Eq. 492; Polakoff v. Halphen, 83 N. J. Eq. 126; Hopper v. Herring, 75 N. J. Law 212.

. A license with an interest or an equity will be protected, as will appear by some of the cases cited, but in the instant ease there are no circumstances to bring it within the principles upon which relief is granted.

The complainant is entitled to a decree.


author: Backes, V. C.

text:
    Frank R. Wollenburg, Jr., complainant, v. Harry Rynar and Isadore Rynar, partners, trading under the firm name of Rynar Brothers, and Harry Rynar, individually, defendants.
    [Decided April 26th, 1924.]
    1. On a bill for the specific performance of a contract for the sale of land, parole evidence is admissible to identify land mentioned in a memorandum of the contract.

      2. A memorandum 'of a contract for the sale of land complies with the statute of frauds, though it does not in terms state an agreement to sell, if from a consideration of the whole memorandum it may be gathered that it is the intention of one party to convey and the other party bo purchase.
    On final hearing.

      Mr. Fred J. Herrigel, for the complainant.

      Mr. Michael I. Estrin, for the defendants.
   Backes, V. C.

The defendants agreed to sell to the complainant a strip of land ten feet wide and to the depth of their lot on Clinton Place, Newark, adjoining the land of the complainant, for $560, of which $60 was paid down. A receipt was given which reads as follows:

"Newark, N. J. Nov. 15, 1922. Received from F. R. Wollenburg, $00.00, deposit on 10 ft. (ten ft.) land adjoining stores at Clinton Place and Hawthorne Avenue; depth according to deed. Balance to be paid within two months, the sum of five hundred dollars.”

The defense is that the memorandum does not comply with the fifth section of the statute of frauds, which requires that an agreement for the sale of land, or some memorandum or note thereof, shall be in writing. Comp. Stat. p. 2612. The memorandum must contain all the essential terms of the contract, expressed with such degree of certainty that it may be understood without recourse to parole evidence to show the intention of the parties; but, as stated in 27 Corp. Jur. 277, it

“Need not contain apt, definite and explicit words expressing the agreement to convey; it is sufficient if such an agreement may be implied from the language employed, and if, from a consideration of the whole contract, it may be gathered that it is the intention of one party to convey and the other party to purchase.”

In Lippincott v. Bridgewater, 55 N. J. Eq. 208, specific performance was denied on a receipt which read deceived from Elizabeth A. Lippincott $5 on account of lot 544 As-bury avenue.” Vice-Chancellor Gray observed that it did not meet the statutory requirements, in that it did not state any undertaking by the signor to convey; that nothing appeared to show for what the money was paid, whether for rent, for mortgage, for lease or for a conveyance in fee.

The land is sufficiently described so that with the aid of parole evidence it can be readily identified. Evidence for this purpose is admissible. Bateman v. Riley, 72 N. J. Eq. 316. The point particularly stressed is that the memorandum does not disclose an agreement to sell. It does not in terms, but there is no other reasonable interpretation. If the preposition for after the word “deposit” had been used instead of on, and the memorandum read “Received $60 deposit for ten feet of land,” &c., there could be little or no question as to its sufficiency. The contracting parties are of a foreign mother tongue and unschooled in our language, and “on” was obviously used to denote “for.” The purchase price is stated, and the recital that the balance was to be paid implies a purchase. It is not claimed that the amount was to be loaned, to be secured by the land. The sum total to be paid according to the receipt is in actual proportion to the price paid by the defendants for their entire lot, and the testimony shows that they agreed to sell at the cost price. In the Lippincott Case the intention to sell could not be gathered from the meagre language, while in the case in hand the recital that the balance, of what was undoubtedly the purchase price, was to be paid in two months, supplies the evidence of intention of a purchase and sale.

Another objection is that the complainant agreed to use the strip of land for a terrace and that he intends to use it as a driveway. If this were true, equity would not aid the complainant, but the burden of establishing the allegation is on the defendants and it is not sustained by the weight of the evidence.

A decree compelling performance will be advised.


text:
    Meyer J. Kobrin, complainant, v. George I. Hull et al., defendants.
    [Decided April 25th, 1924.]
    1. Usury must be pleaded timely and precisely.
    2. Usury is not purged by taking new security upon settlement of accounts or the giving of a new consideration.
    3. Blohm v. Hannan, 82 N. J. Eq., explained.
    4. Usury may be recovered in an action at law and be set off in mortgage foreclosure.
    On final hearing.

      Mr, Milton M. Unger, for the complainant.

      Messrs. Rosenhrans & Rosenlcrans, for the defendants.
   Backes, V. C.

This is a bill to foreclose a mortgage. The defense is usury. On January 5th, 1922, the complainant loaned the defendant Beyer $3,500 on bond and mortgage on property in Hackensack. On April 11th, 1923, Beyer paid $1,000 of the debt and gave a new bond and mortgage.for $2,500, the one under foreclosure. It is established, as pointed out in the court’s findings at the conclusion of the argument, that the complainant corruptly agreed with the defendant Beyer to lend him $3,500 upon the promise to pay interest at the rate of three per cent, per month, and that interest at that rate was paid for one year, three months and six days, a total of $1,330 above the legal rate.. It is also established that, in pursuance of the corrupt bargain, three per cent, per month was exacted and paid on the mortgage in suit for the first month, $75.

The usury was not timely pleaded, and hence the defendant cannot claim the statutory forfeiture of interest and costs. Dunlap v. Chenoweth, 88 N. J. Eq. 496. But he is entitled to have the usury applied in reduction of the mortgage debt. Kohn v. Kelley, 76 N. J. Eq. 132, and eases cited.

The contention that the usury was expunged by the surrender and cancellation of the mortgage and the taking of new security finds support in the case of State Bank v. Ayers, 7 N. J. Law 130; Morris v. Taylor, 22 N. J. Eq. 438, but the doctrine of these cases was repudiated by the court of errors and appeals in the last-named case (Ibid. 606), and it is there held that as between the parties to the usurious instrument, or as against a subsequent holder with knowledge of the defect, the original taint attaches to all substituted obligations or securities, however remote, unless the original vice be removed by expunging the usurious elements, and that no recovery can be had upon any succeeding obligation which operates to secure the usurious exaction, and that a new settlement of the accounts between the borrower and lender, and the cancellation of the original security, or the introduction of a new consideration in the shape of an additional loan, will not operate to give such an instrument validity. See, also, Mahn v. Hussey, 28 N. J. Eq. 546; Boyd v. Engelbrecht, 36 N. J. Eq. 612; Trusdell v. Dowden, 47 N. J. Eq. 896. Blohm v. Hannan, 82 N. J. Eq. 192; affirmed, 83 N. J. Eq. 347, is in harmony with the principle. There the complainant held two usurious mortgages upon which there was actually due, after eliminating the usury, $6,950. By agreement he surrendered them for $6,000 in cash and a mortgage for $1,500, an inferior security. Vice-Chancellor Garrison, who heard the case, in a communication to counsel, printed in the court of errors and appeals records, and after his retirement Vice-Chancellor Lewis, who decided the case, found that the consideration for the $1,500 mortgage was, the balance of the debt, $950, and $550, the price agreed upon for the surrender of the superior security. In their view the original transaction had been purged of usury and the mortgage in suit was not a substituted security, but one on a new consideration. Here the complainant agreed to extend the time for the payment of the debt upon the payment of $1,000 on account and the continuance of the payment of usury. The money was raised, it is true, by increasing a first mortgage, and the complainant surrendering his and taking in substitution an inferior security, but there was no purging of the usury; the unlawful element was retained, not eliminated.

The defendant is also entitled to credit for the amount of usury by way of set-off. He could sue at law and recover the usury. Hintze v. Taylor, 57 N. J. Law 239; Weitz v. Quigley, 88 N. J. Law; 617. Hnder section 61 of the Chancery act (Comp. Stat. p. 433) set-offs are allowed in mortgage foreclosure in the same manner as set-offs are allowed at law.

The defendant may amend his pleading by adding a