text:
    George N. Bliss and Edward H. Gibson, partners, as George N. Bliss & Company, v. Amelia C. Cronk, individually and as executrix of her husband, William H. Cronk.
    [Submitted June 12, 1901.
    Decided November 16th, 1901.
    Filed December 21st, 1901.]
    1. A mortgage of the separate property of a wife to a partnership consisting of her husband and another, reciting that it is to secure her debt to the firm, when she owes them nothing, but for which her husband is given credit on the firm books, cannot be enforced, to collect his indebtedness to the firm.

      2. Where it is claimed that a mortgage on a wife’s separate property, which recites that it is to secure her debt to the firm in which her husband is partner, is to secure his debt to the firm, she may show the agreement between her and her husband that it should not be so used.
    On final hearing on bill, answer and proofs.
    The object of the bill is to enforce, by foreclosure, a mortgage covering the lands of the defendant, Amelia C. Cronk, executed by her and her late husband, William H. Cronk, to the firm of George N. Bliss & Company, of the city of New York, dated December 31st, 1896, to secure the sum of $1,500. The mortgage recites that the
    “said Amelia Oronk is justly indebted to the said party of the second part [the complainants] in the sum of $1,500, secured to be paid by her certain obligation bearing even date with these presents in the sum of $1,500, conditioned for the payment of the said first-mentioned sum of $1,500 on the 31st of December, 1899,”
    with interest, payable semi-annually; and after conveying the premises in the usual form, it contains a covenant by Amelia C. Cronk to pay to the party of the second part the said sum of money, with interest. No separate obligation was given.
    The mortgage was not recorded until January 12th, 1899.
    The circumstances attending its execution, as developed by the evidence, are as follows:
    The firm of George N. Bliss & Company, at that time, consisted of George N. Bliss, one of the complainants herein, and William H. Cronk, the husband of the defendant. They were engaged in the business of manufacturing ladies’ coats and cloaks, in the city of New York,'and the interest of Mr. Bliss in the concern was three-quarters and that of Mr. Cronk one-quarter. The business had been running for two years, and had been unsuccessful. The firm started with little or no capital, and after counting the amount withdrawn by each partner for living expenses, which left each considerably indebted to the firm, it was substantially insolvent at the end of the year 1896. It was then agreed between the partners that some contribution should be made by each to the common fund, in order to prevent their being pronounced insolvent by the mercantile agencies. Mr. Bliss borrowed from his wife $4,000 in cash, and put it to his credit on the books. Mr. Cronk procured his wife to execute the mortgage in question, and it was credited to him on the books at its face value. At the time of crediting it his account was overdrawn $4,175, and it still remained overdrawn $2,675. The understanding between the partners at the time, as testified to by Mr. Bliss, was that thereafter they were to be more economical in drawing money for their personal expenses, and that out of the profits which they hoped to make, when sufficient for that purpose, the mortgage given by Mrs. Cronk was to be treated as paid and surrendered before the $4,000 was repaid to Mrs. Bliss, but that was also to be repaid. The understanding was that, after the date of these contributions, Mr. Cronk should draw but $100 a month for living expenses and Mr. Bliss $200 a month, and no more.
    No direct communication was had between Mrs. Cronk and Mr. Bliss with regard to the giving of the mortgage. Mrs. Cronk was induced to give the mortgage upon the representation, by her husband, that the firm wished to use it for the purpose of making a show of assets for the mercantile agencies, and an express verbal statement by him to her that Mr. Bliss had told him that it would never be a lien against the property, and Cronk drew, signed and handed to her a statement in these words:
    “127 Pennington Ave.
    “Passaic, N. J.
    “N. Y., Dec. 31, 1896.
    “This is to certify that the mortgage given to us by Mrs. Amelia O. Cronk for $1,500, on the property situated on Pennington Ave., Passaic, N. J., was given without any consideration whatever, and is not taken as a lien on the property aforesaid. We being financially embarrassed and wishing to make a statement to the Commercial Agencies, so that our credit would not be impaired, asked Mrs. Cronk to make the mortr gage aforesaid, so that we could use the same as an asset in making out our report. Fifteen hundred dollars being the amount of shrinkage to our capital for the last six months of the year, that with previous losses had made the credit of the firm doubtful with some houses.
    “Geo. N. Bliss & Co.:

      No authority was given by Mr. Bliss to Mr. Cronk to make such representation to Mrs. Cronk, and he did not know that any such representation was made, except so far as it may be inferred from his own statement of the arrangement above stated.
    The-business was continued for two years, with the result that, without charging against the business as expenses the amount drawn'by the two partners, the share of the profits to be credited to Mr. Cronk for the year 1897 was $630.06, and for the year 1898, $511.04, or $1,141.10 in all; but during that time Cronk drew over two thousand dollars for his living expenses, which increased the balance against him at the end of the year 1898 to over' five thousand four hundred dollars. He retired from the firm in January, 1899, and was succeeded by Mr. Gibson, one of the complainants, who had all the time been an employe of the firm and familiar with the facts hereinbefore stated. Shortly afterwards the mortgage was put on record, and after Cronk’s decease this bill was filed.

      Mr. Vivian M. Lewis, for the complainants.

      Mr. William W. Watson, for the defendant.
   Pitney, Y. C.

The deed has a dual character—first, it contains a covenant by Mrs. Cronk to pay a sum of money to the complainants, stated to be a pre-existing debt due from her to them; second, a conveyance of land to secure that debt.

The first is an executory contract by a married woman, and the second an executed conveyance whose validity and liability to be enforced depends upon the enforceability of the' executory contract.

There was, in fact, no debt due and owing by Mrs. Cronk to the complainants, and this was well known by them when the mortgage was delivered to them and credited to Mr. Cronk on their books; hence, the complainants are not entitled to relief in that aspect of the ease.

The true aspect of. the case, from complainants’ standpoint, is that the wife became the surety of the husband for the amount mentioned.

For that purpose the covenant is entirely void, both under our statute and before its enactment, under the ruling of the court of errors and appeals in Perkins v. Elliott, 8 C. E. Gr. 526.

Nevertheless, it is quite clear that a married woman may convey her land by way of mortgage to secure her husband’s debt. Campbell v. Tompkins, 5 Stew. Eq. 170; S. C. on appeal, 6 Stew. Eq. 362; Merchant v. Thompson, 7 Stew. Eq. 73.

It follows, that if the mortgage had recited a debt from the husband to the complainants, instead of one from the wife, which did not exist, an entirely different question would have arisen.

But not only does the mortgage contain no such recital, but it does not appear that the wife knew or had any reason to believe that any such indebtedness existed, or that she was giving the mortgage to secure her husband’s debt; but the contrary, appears affirmatively.

Further: no question arises of estoppel in favor of third parties who have given credit to the firm on the strength of finding this mortgage among its assets. No equities on behalf of the complainants have intervened, unless the permitting of Cronk to remain in the firm may be considered as such. I think it does not raise an estoppel.

It is quite plain that the firm never made any profits, in the proper sense of the term, while Cronk was a partner which should be applied in payment, pro tanto, of the mortgage, for I think that a proper allowance'for the living expenses of the partners, in lieu of salary and by way of compensation for services rendered, was a proper charge against the 'apparent profits mentioned as being credited to them.

If, however, I am wrong in this view, the result is the same,. for it is quite in accord with the understanding testified to by Mr. Bliss that the whole of Cronk’s overdraft, at the date of the mortgage, should be paid out of the profits before the mortgage was surrendered,-and that overdraft was twice what the supposed profits afterwards amounted to.

The result of the evidence is that from complainants’ standpoint it is quite consistent with justice and equity that the mortgage should be enforced. But this does not include the whole case. On the contrary, from the defendant’s standpoint, it is equally clear that it should not be enforced.

■ The complainants insisted at the hearing and in argument— and at the hearing I was inclined to adopt the view—that the defendant could not be permitted to set up the representations made to her as an inducement to execute the instrument; but, upon consideration, I have changed my mind. The mortgage, on its face, contained a false recital, which ought to have attracted the attention of Mr. Bliss, namely, that Mrs. Cronk was indebted to the firm and gave that mortgage to secure her indebtedness.

As I have said, that rendered the mortgage, in the absence of circumstances to create an estoppel, unenforceable between the parties.

Some other ground must be found for its enforcement. The only other ground suggested, or that can be suggested, is that it was* given to secure the husband’s debt for that amount.

Now I think it entirely competent for the wife to show that she did not consciously give it for any such purpose. And I think this is so even if the burden does not rest on the complainants, as I think it does, to show affirmatively that it was so given; hence, it seems to me that the circumstances under which it was given are clearly competent, and I think that if any fraud was practiced upon or misrepresentations made to Mrs. Cronk which induced hex to execute the instrument, the complainants must take it subject to any defence which arises out of such misrepresentations.

As we have seen, they advanced nothing on the strength of it. They do not occupy the position of tona -fide purchasers, and they are subject to the general principle'that a party, however innocent, in the absence of estoppel, cannot claim through the fraud or misrepresentation of another.

But independent of that principle, I think that it .was the duty of the complainants, under the circumstances of this case, to see to it that the wife executed this mortgage with a full understanding of the effect of so doing.

There are express authorities in favor of this view.

In the case of Michener v. Cavender, 2 Wright 334, which was a scire facias, by mortgagee against mortgagor, corresponding with our proceedings to foreclose, the mortgage was given by the wife to secure a debt, whether of the husband or of the wife, or for money loaned, does not appear. It was delivered by the husband, in the absence of the wife, to the mortgagee, and purported to be executed by the wife and properly acknowledged by her before an alderman of the city of Philadelphia, who had authority for that purpose. In point of fact, the alderman had signed the certificate of acknowledgment, filled up in the ordinary form and covering the acknowledgment by the wife as well as the husband, without seeing the wife, before she had, in fact, executed the mortgage, and it was shown that she never did acknowledge it. It was held that those facts could be relied upon in defence of the scire facias, and that it was the duty of the mortgagee to have seen to it that she had executed it, in accordance with the requirements of the statute, and that he could not rely upon the mere certificate of the acknowledging officer.

Then, in Cridge v. Hare, 2 Outerb. 561, which was also a scire facias, by mortgagee against mortgagor, the circumstances were that Hare, the mortgagee, proposed to sell and convey to a Mrs. Workman certain chattels, by a bill of sale which gave time for the payment; and Cridge induced his wife to execute a mortgage to Hare to secure the payment of the consideration money mentioned in the bill of sale, upon his representation to her that the goods were conveyed and the bill of sale made to him (Cridge), and concealing from her the fact that the chattels were to be conveyed to Mrs. Workman. The trial judge excluded an offer to make proof of this, and in the end directed a verdict for the plaintiff. The supreme court reversed the judgment, and held that Mrs. Cridge was entitled to prove her husband’s representations made to her as an .inducement to the execution of the mortgage, although those representations were not made in the presence, or by the authority, or with the knowledge, of Mr. Hare, or any person in his behalf. It'held distinctly that the fact that Mr. Hare had taken the mortgage as collateral security for the payment by Mrs. Workman to him of the consideration money mentioned in the bill of sale did not raise an estoppel to prevent the wife from setting up the true facts accompanying the execution of the mortgage. ■

The case is on all-fours, in principle, with, and goes beyond, that before the court, and I think it was rightly decided.

It is to be observed here that .the representations made by the husband to the wife in this case are quite consistent with the actual facts as testified to by Mr. Bliss; and it is quite easy to believe that the husband felt entirely justified in making them, and that he practiced no fraud upon his partner, and, if so, then none on his wife.

The result is that the proofs show that the mortgage was made for a temporary purpose, and, in effect, as a loan, without any expectation that it was to be enforced, and it should not be enforced.

I will advise that the bill be dismissed, with costs.


source: Caselaw Access Project

author: Pitney, Y. C.

license: Public Domain

text:
    Hoboken Bank for Savings v. Henry Schwoon and Arthur Seitz, executor of Helena Roche.
    [Decided November 2d, 1901.
    Filed December 21st, 1901.]
    Where one having a deposit in a bank signed a document in a book of the bank, whereby she directed that the account be placed in the name of another jointly with herself, and that either of the parties, or the survivor of them, might at any time draw any or all of the deposit, and thereafter a new pass-book was issued to her, which new book contained ah indorsement to the effect that the account was a joint one between the depositor and the other, payable to either or survivor, and she placed the pass-book in the hands of a friend, and instructed her to deliver it to the other after her death, there was a complete declaration of trust in favor of the other.
    On bill of interpleader.

      The contest is over a sum of upwards of one thousand four hundred dollars standing on the books of the complainant’s bank to the credit of “Helena Roche or Hy Schwoon, payable to either or survivor.”
    The defendant Schwoon claims under a bank-book showing the credit as above.
    . The defendant Seitz claims under a will of Mrs. Roche, made on the-day of November, 1898, duly admitted to probate after the decease of the testatrix, which occurred on March 2d, 1900.
    Mrs. Roche was a widow, without children, and had a life interest in and occupied certain living apartments in' the city of Hoboken.
    The defendant Schwoon was her grandnephew, who had learned the trade of a carpenter with her husband somewhere between 1870 and 1880, and for several years before testatrix’s death resided with his wife and family in the city of Brooklyn.
    The testatrix had, for many years prior to her death, an ordinary deposit account in the complainant’s bank, and some time shortly before the 17th of April, 1899, she sent for Schwoon to come and see her, and upon his arrival on that day went with him to the complainant’s banking-house with her pass-book. An examination of that book shows that at this time her name did not at all appear in the interior thereof, but was written on the outside simply “Helena Roche,” with the number of the book— “No. 44522.” On that day, at her request, and in the presence of Schwoon, a clerk in the bank wrote at the head of two of the three double pages of the book, which were prepared for cash entries, the words, “Helena Roche or Hy Schwoon,” on the left-hand side, and stamped on the opposite side the words, “Payable to either or survivor.” So that the heading read, “Helena Roche or Hy Schwoon in account with Hoboken Bank for Savings, payable to either or survivor.” And .at the same time added to the original endorsement on the outside of the pass-book, “Helena Roche,” the words, “or Henry Schwoon.”
    At the same time Mrs. Roche signed a contract, partly printed and partly written, in a book kept for that purpose by the bank, as follows:

      “No. 44522. I, Helena Roche, hereby authorize, empower and direct The Hoboken Bank for Savings, in the Oity of Hoboken, to place the account now in my name on the books of said bank, in the name of Henry Schwoon, jointly with mine. And we, the said Helena Roche and Hy Schwoon, do hereby agree with each other to become and be co-partners in the ownership of said moneys, and of all accrued and accruing interest thereon, and of all moneys hereafter to be deposited to said account. And it is agreed that each and either of said parties and the survivor of them may, at any and all times, draw and receive from said bank the whole or any part of said moneys, and that each of said parties is authorized and empowered to sign their respective names of Helena Roche or Hy Schwoon to any receipt, check, draft or other voucher for the moneys so drawn.”
    At that time she had to her credit a little over one thousand seven hundred dollars.
    She retained possession of that bank-book until the 2d of November, 1899, having in the meantime drawn about thirty dollars each month.
    On the day last named—November 2d, 1899—she went with the old bank-book, which was filled with figures, and in person surrendered it to the bank, and took a new book, No. 73355, to which the balance then standing to her credit, $1,595.08, was transferred. She then drew $200 in money from which she retained $25 for her own immediate needs, and handed the balance of $175, with the bank-book, to an old and intimate friend who accompanied her to the bank—a Mrs. Rengier—with instructions to keep the money subject to her draft in such sums as she might choose, and to keep the bank-book until her death, and then deliver it to her nephew, the defendant Henry Schwoon.
    That new bank-book contained the endorsement, “Helena Roche or Henry Schwoon,” and the heading on the inside pages was similar to the previous one, “Helena Roche or Henry Schwoon in account with Hoboken Bank for Savings, payable to either or survivor.”
    Mrs. Rengier observed Mrs. Roche’s directions and paid out $60 of the $175, to or for Mrs. Roche’s use during her lifetime, and after her death delivered the balance to her executor, but delivered the bank-book to Schwoon.
    The original bank-book, No. 44522, contains the following and no other restrictions upon the draft of money by depositors:

      “All deposits and drafts must be entered, when made or drawn, in the depositor’s pass-books; and deposits will be received and drafts paid only on the days and times before mentioned. * * * This institution will not be responsible to depositors for any fraud that may be practiced on them by any person presenting a depositor’s book, and thereby drawing money without their knowledge or consent, although the strictest caution will at all times be’ used. * * * Depositors unable to come to the bank to sign their drafts, must send a regularly executed power of attorney.”
    The new bank-book, No. 73355, contained, in addition, the following provisions:
    “Drafts for money may be made personally or by order in writing of the depositor or by power of attorney, but no person shall have the right to demand the whole or any part of his or her money without producing the pass-book in order that such payment may be entered therein, and such entry is to be evidence of the payment of the money specified. * * * Should a depositor lose his pass-book, he is required to give immediate notice thereof to the bank, and the bank shall prescribe the conditions on which a new book may be issued.”
    The will of the testatrix divided her estate between the daughter of Schwoon and a distant relative in Germany.

      Mr. Ralph W. Skinner, for Seitz.

      Mr. Charles L. Garrick, for Schwoon.
   Pitney, Y. C.

Parol evidence was given as to the relation between Mrs. Roche and the defendant Schwoon, and as to her object in making the change which she did in her bank account. The evidence satisfies me that she had a strong regard for Schwoon by reason of his kinship, and by reason of his having lived in her family for several years while an apprentice to her husband.,

It also satisfies me that after she had executed the will and deposited it in the hands of the executor she became dissatisfied with it and desired to destroy it and make Schwoon her sole beneficiary, and that she attempted to get possession of the will from the executor for that purpose, but failed, either by reason of misunderstanding on his part of her desire in that respect, or because she was afraid that she would offend him by demanding outright that the will should be destroyed. I do not find it necessary to adopt a construction of the testimony on this subject which will attribute to the executor a willful disregard of the testatrix’s desire in this respect.

Be that as it may, however, the evidence thoroughly satisfies me that she sent for Schwoon for the express pronounced purpose of having her little fortune, in the savings bank placed at his disposal. She was past eighty-one years old, had suffered a slight stroke of paralysis, which rendered her locomotion somewhat laborious and difficult, and she was conscious that she had not long to live, but she retained her mental faculties without serious impairment until an apoplectic seizure, which occurred two days before her death.

Some time before that she sent her friend, Mrs. Rengier, to the bank to inquire whether the people at the bank were sure that her deposit there was in such shape that her nephew could get it after her death,’ and received a message from the bank that it was perfectly safe.

There is no reason to doubt that she fully understood the character of the contract which she signed in the books of the bank. Mr. Clark, the witness thereto, who was an officer of the bank, swears that he has no recollection of this particular transaction, but the Piaking of such contracts was quite frequent, so. that he witnessed a great many, and his invariable practice was to carefully explain the document to the party signing it, and he is quite sure that he did so in this case.

The mouth of Schwoon, who was present at the transaction, is closed as against the executor, but he swears that he was present, and that there was a conversation between Clark, the witness, and his aunt.

The attempt by the executor to prove that the account was put in the joint names of the aunt and nephew for convenience in drawing money for'her wants in case of her disability, I think fails. The nephew lived in Brooklyn, was closely confined by his business, and it was not convenient for him to cross over to Hoboken to assist her in that respect.

The question raiséd is an important one,' in’ view of the frequency of such transactions.

I dealt with one in Skillman v. Wiegand, 9 Dick. Ch. Rep. 198, where many of the authorities are collected. 'Those found in the English reports arise principally out of procuring government or other stock to he issued to two persons jointly, with the right of survivorship; and many cases are collected in a note by the late Mr. Stewart to the case of Smith v. Speer, 7 Stew. Eq. 336. I have found only one ease in England of a joint bank account, namely, Marshal v. Crutwell, L. R. 20 Eq. 328, before Sir George Jessel, master of the rolls. The circumstances of that case were quite similar to those in Skillman v. Wiegand, and the result was the same.

I also dealt with the question in the recent unreported case of Dennin, Administrator, v. Hilton (since reported, 50 Atl. Rep. 600), where I awarded the fund to the survivor. The evidence of the intention of the decedent to make a gift to the survivor was quite as clear and strong as in the present case; but the two cases differ 'in this: In Dennin v. Hilton there was no written contract signed by the original owner, such as we have here, but the bank pass-book was delivered by her in her lifetime to the survivor, and held by him at her death.

The objection to this mode of making a gift is that it is testamentary in its character, and in effect a will, and therefore void under our statute. In support of this conclusion is pointed out the circumstance that the power of disposition by the donor continues during his or her lifetime.

But this circumstance has not deterred the 'courts from giving effect to such arrangements. This has been done on two grounds—first, that a joint estate or interest is created with an express right of survivorship, which operates naturally and legally upon whatever of the fund remains unused at the death of the donor; and second, on the ground of a completed trust.

The authorities on this subject are Ray v. Simmons, 11 R. I. 266, 15 Am. L. Reg. (N. S.) 701, and cases cited in notes; S. C., 23 Am. Rep. 447, and eases cited in notes; Howard v. Savings Bank, 40 Vt. 597; Gerrish v. New Bedford Institution for Savings, 128 Mass. 159; Martin v. Funk, 75 N. Y. 134, where all the’cases up to that date are collected in the arguments of the counsel and the opinion of the court'.

In our own state I refer to Green v. Tulane, 7 Dick. Ch. Rep. 169. There, as here, the evidence of the debt was deposited by the donor with a third party, accompanied by a written direction signed by the donor to deliver the same to the donees at the death of the donor.. It was held, on the authorities cited, that the trust was complete.

In the present case the document signed by the donor in the books of the savings bank, the executed direction to put the account previously standing to her credit in a new account in the joint names of the donor and donee, with right of survivor-ship, and the delivery of the evidence of the indebtedness—the pass-book—to a third person for the donee, makes a complete declaration of trust—one which needs no aid in equity to enforce it.

The bank would have been perfectly justified in paying the amount due on the book to the donee upon presentation of the book. This was distinctly held, and I think rightly, in Metropolitan Savings Bank v. Murphy, 82 Md. 314.

I will advise a decree that the fund be paid to Schwoon. As there is no fund in the hands of the executor, it is idle to decree costs against him. The complainant will, of course, receive its costs out of the fund, unless the same have already been paid.


text:
    Hester Wallace v. William Wallace.
    [Decided November 15th, 1901.
    Filed December 21st, 1901.]
    1. Where, in divorce, it appeared that there were some reasons which' probably influenced the action of complainant in moving into the state other than a desire to acquire a divorce therein, but complainant and her mother both testified at their first examination that their object in coming into the state was to enable the daughter to procure a divorce, and a year later, on re-examination, complainant stated that she was informed of the possibility of getting a divorce in the state by some notices she saw in the newspaper before the moving, and that she and her mother had talked of getting a divorce prior thereto, the evidence sufficiently showed that the principal reason for coming into the state was that a divorce might be acquired there.
    2. Where a complainant in divorce has been deserted in another state, and moves into New Jersey for the purpose of securing a divorce in such state, she acquires no domicile, such as to give the courts of New Jersey jurisdiction where no service is had on the defendant within New Jersey.
    On bill for divorce. Heard ex parte before a special master.

      Mr. Thomas 8. Henry, for tbe petitioner.
   Pitney, Y. C.

The special master who beard and took tbe testimony in this cause has reported tbe same, and recommended that a decree of divorce be granted to tbe complainant.

Tbe history of tbe cause is as follows: Tbe bill was filed December 11th, 1899, a subpoena was issued and banded to the sheriff of Hudson county, and returned by him not served, with the usual affidavit that tbe defendant could not be found,' but that he resided in tbe State of New York; and an order of publication was made January 17th, 1900, expiring March 17th, 1900.

By an affidavit made in the cause on May 14th, filed May 17th, 1900, it appeared that the defendant herein had sued the complainant herein in the supreme court of New York, and a trial had been had therein, but what was the nature of the suit did not appear, and that the defendant had been duly served in the State of New York with a notice of this suit, according to the statute and the practice of the court.

No appearance or answer having been filed, an order of reference was made on May 29th, 1900.

Depositions were taken before the special master on July 19th, 1900, and again, after a lapse of more than a year, on August 27th, 1901, those taken on the latter day being a re-examination of the complainant and one of the witnesses previously examined.

The facts elicited are the following: Complainant was born and-lived continuously in New York City up to November, 1897. She lived with her parents, who were domiciled there, until she was married, in 1890, and afterwards with her husband, until he deserted her, in August, 1896. After the desertion she lived with her mother, then a widow, in the city of New York, until the fall of 1897, when both moved to New Jersey, and have ever since lived here.

Both mother and daughter, at- their first examination, testified that their object in coming to New Jersey was to enable the daughter to procure a divorce from her husband. The language used by the mother, on her first examination, is as follows:

“I came to New Jersey to live with my children [she had a son] so that she could get rid of the bad rascal she had. My daughter and I support ourselves at work that comes from New York City—work on neckwear. My son is an actor, with a desk in a room on Fourteenth street. His regular voting place is New Jersey, when he is home. I consider myself a permanent resident of New Jersey.”

And the daughter swears:’

“I moved to New Jersey in order to get a divorce. That was my idea. I do not intend to move back to New York if I get it. I mean to live on with my mother in New Jersey.”

When re-examined a year later complainant said that she was informed of the possibility of getting a divorce in New Jersey by some notices she saw in the newspapers, and that, before she moved to New Jersey with her mother, her getting a divorce was a subject of conversation between them. She did not talk about it with her uncles, who live in New Jersey.

There were other reasons which might well, and probably did, influence the action of the mother and the daughter in coming to New Jersey to live, which were given when they were recalled in August, 1901. But taking all the evidence, it is clear that the principal reason for their coming was the desire on the part of the daughter to procure a divorce; and it-is not clear that they would have changed their' residence except for the accomplishment of that purpose.

The desire to obtain a divorce was meritorious to a degree sufficient to excite the sympathy of the court. But it should always be borne in mind by the judge who deals with this class of cases ex parte that he naturally and necessarily hears but one side of the affair.

But sympathy for the complainant, however well exercised, should not induce the court tp act if it lacks power for want of jurisdiction over the person of the defendant. The defendant has always, so far as appears, resided in the State of New York, and was served with a notice of this suit in that state. No service of any kind was made in this state.

In stating my reasons for being unable to agree with the conclusion of the learned master, I shall assume, as stated by Chief-Justice Beasley, in Doughty v. Doughty, 1 Stew. Eq. 582, that each state has complete power over the marriage relation of its citizens, and may dissolve it at its pleasure. Such power was exercised by the legislature of this state prior to the adoption of the constitution of 1844; and, however arbitrary and unjust the action of that body might be, its result was binding within its territorial jurisdiction; but beyond its limits it might'be, and often was, of no binding force, and was not recognized by the courts of other jurisdictions.

It must, moreover, be admitted that many of the divorces granted by courts of one state, and binding upon all parties within the territorial limits of that state, are of no binding force beyond such territorial limits.

The principal cause of such invalidity is the want of jurisdiction over the person of the spouse proceeded against, by reason whereof the decree is not recognized as binding by the courts of other states, under that clause of the constitution of the United States which provides that “full faith and credit shall be given in each state to the * * * judicial proceedings of every other state.”

In interpreting that clause the federal courts have always held that, in order to maintain the validity of a foreign judgment, it must appear that the court pronouncing it had jurisdiction of the person of the party proceeded against, as well as of the subject-matter, and that the adjudication of the court pronouncing ihe decree that it had such jurisdiction is always open to question in another jurisdiction.

It follows, as a corollary to this thoroughly-established proposition, that no state can, by legislative enactment or otherwise, authoritatively determine what state of facts shall be sufficient to give the judgments and decrees of its courts validity in other states.

There must, of course, be jurisdiction over both the subject-matter and the person.

The question of jurisdiction over the subject-matter may be finally determined by the courts of the state exercising it, but the question of the jurisdiction of the person must be determined in accordance with the fundamental rules of justice, as interpreted by international law, and that, in this country, under our system, is a federal question, to be finally determined by the supreme court of the United States.

The courts of New Jersey have always interpreted the statute conferring jurisdiction of the subject of divorce upon this court, and regulating its proceedings thereunder, as requiring the court to so conduct suits against non-residents as that its decree shall, when set up-in the court of a foreign jurisdiction, not only command the respect of that court, because manifestly obtained after a due observance of the fundamental maxims of justice, but also shall compel obedience and acquiescence under the federal constitution.

I feel quite sure that no judge of this court has ever consciously granted a divorce that he thought would be open to successful attack in a foreign jurisdiction for want of jurisdiction of the party decreed against. I deem the policy of the legislation on the subject decidedly against granting a divorce which shall be valid in this state, but invalid in another state. In this view I am supported by what was said in the opinion of the court of errors and appeals, in the case of Felt v. Felt, 14 Dick. Ch. Rep. 606.

The general, undoubted and unvarying principle of law and fundamental rule of justice is that a court cannot obtain jurisdiction of any person, as a person, without service of process upon him within its territorial jurisdiction, and any judgment or decree in personam based upon anything short of such a service or a voluntary appearance, is absolutely void.

There is only one apparent exception to this rule, and it is only apparent, and that is that when the subject-matter of the suit, or the res, lies within the jurisdiction of the court, it may act upon that “subject-matter” after giving an absent party claiming an interest therein such reasonable notice as is required by the fundamental rules of justice.

The “subject-matter” which thus attracts the attention of the court is, naturally, primarily confined to physical, tangible property, and of rights therein and ehoses in action located within the territorial jurisdiction.

To this familiar class of subjects has, by a process of rather artificial reasoning, been added the “marriage state.” This has been done upon the idea that it constitutes a distinct “matter,” and it is accorded a situs as an incident to the domicile of one or both of the spouses within the territorial jurisdiction. Its foundation is a domicile, with residence. This result has been reached with much difficulty, and not without strong protest. See the opinion of Chief-Justice Beasley, in Doughty v. Doughty, 1 Stew. Eq. 581. Some courts, including those of New York, have held, as suggested by the learned chief-justice, that a divorce decreed under such circumstances is valid in the jurisdiction making it, but invalid elsewhere.

The right of a court to take jurisdiction of a subject-matter within its territorial jurisdiction, by service of notice outside that jurisdiction upon the person interested therein has its foundation in the very necessity of the case, and in that necessity only.

A party claiming a right in a subject-matter cannot be prevented from asserting and enforcing that right by the absence from the territorial jurisdiction of the party claiming an interest against him; and the effect of the action of the court has, in all such cases, been confined to judgments affecting the subject-matter, and does not warrant any judgment or decree in personam against the absent party. Lynde v. Lynde, 9 Dick. Ch. Rep. 473; S. C., 10 Dick. Ch. Rep. 591; Hervey v. Hervey, 11 Dick. Ch. Rep. 424; Elmendorf v. Elmendorf, 13 Dick. Ch. Rep. 115.

This absolute inability to render a judgment or decree in personam based upon extra-territorial service of notice has led many jurists to doubt, as we have seen, and some to deny the power to decree a divorce upon extra-territorial service.

But it has been finally determined in a great majority of jurisdictions, including the supreme court of the United States as the final arbiter, that such a decree may be made which will have extra-territorial force. Atherton v. Atherton, 181 U. S. 155.

The foundation of the jurisdiction in such cases, as I have said, is found in the domicile Of the complaining spouse within the jurisdiction.

Unless jurisdiction exists in such case the spouse who has good ground for divorce may lose his or her remedy by the mere ability of the delinquent spouse to escape out of the jurisdiction before service made; hence, the “necessity” above mentioned.

It is to be observed that the supreme court of the United States, in the recent batch of cases involving this question, confined its opinion, upon the precise point now under consideration, to the ease of a matrimonial domicile—that is, a case where the domicile relied upon by the complaining spouse was the domicile of both spouses while cohabiting as such. The cases are reported in 181 U. S. (between pages 151 and 187); and (at p. 170) Mr. Justice Gray, after reciting the principal authorities on the subject, says: “The authorities above cited show the wide diversity of opinion existing upon this important subject, and admonish us to confine our decision to the exact case before us. This case does not involve the validity of a divorce granted, on constructive service, by the court of a state in which only one of the parties ever had a domicile; nor the question to what extent the good faith of the domicile may be afterwards inquired into.

“In this case the divorce in Kentucky was by the court of the state which had always been the undoubted domicile of the husband, and which was the only matrimonial domicile of the husband and wife.

“The single question to be decided is the validity of that divorce, granted after such notice had been given as was required by the statutes of Kentucky. The husband alwaj's had his domicile in Kentucky, and the matrimonial domicile of the parties was in Kentucky. On December 28th, 1892, the husband filed his petition for a divorce in the court of appropriate jurisdiction in Kentucky, alleging an abandonment of him by the wife in Kentucky, and a continuance of that abandonment for a year, which was a cause of divorce by the laws of Kentucky. His petition truly stated, upon oath, as required by the statutes of Kentucky, that the wife might be found at Clinton, in the State of New York, and that at Clinton was the post-office nearest the place where she might be found.” And (at p. 172) : “We are of opinion that the undisputed facts show that such efforts were required by the statutes of Kentucky, and were actually made, to give the wife actual notice of the suit in Kentucky, as to make the decree of the court there, granting a divorce upon the ground that ' she had abandoned her husband, as binding on her as if she had been served with notice in Kentucky, or had voluntarily appeared in the suit. Binding her to that full extent, it established, beyond contradiction, that she had abandoned her husband, and precludes her from asserting that she left him on account of his cruel treatment. To hold otherwise would malee it difficult, if nob impossible, for the husband to obtain a divorce for the cause alleged, if it actually existed. The wife, not being within the State of Kentucky, if constructive notice, with all the precautions prescribed by the statutes of that state, were insufficient to bind her by a decree dissolving the bond of matrimony, the husband could only get a divorce by suing in the state in which she was found; and, by the very fact of suing her there, he would admit that she had acquired a separate domicile (which he denied), and would disprove his own ground of action, that she had abandoned him in Kentucky.”

No difficulty arises in applying the principle previously stated, when the domicile relied upon is matrimonial; but when either of the spouses seeks to establish a domicile separate from the other, without the matrimonial quality, in a different jurisdiction, nice questions arise which have led to much contrariety of judicial decision. This question, as we have seen, is left undecided by the supreme court of the United States in the cases just cited. But the carefully considered language of the court shows clearly enough that the true and only ground of jurisdiction in the class of cases in question is, as I have before remarked, “necessity.” It further admonishes all courts to be very careful how they proceed in sucNcases upon anything short of a matrimonial domicile. See Bell v. Bell, 181 U. S. 175.

It is apparent at once that, conceding the right, doubtful at best, of either spouse, after separation, to abandon the matrimonial domicile and acquire a new and separate domicile in a different jurisdiction,. and to found upon it the right to sue the other spouse by service of notice in a different jurisdiction, the character of the domicile so relied upon is of the utmost importance and should be inquired into with great care and severely criticised. The question is, is it really a domicile, or onty a residence ? And I cannot but think the motive in acquiring it is of the utmost importance in solving it.

And in this connection it is to be observed that the party acquiring & new and separate domicile voluntarily creates the very situation of “necessity” which, as we have seen, requires the court to exercise its exceptional, and, under the latest utterances of the supreme court of the United States, doubtful, powers to compel the other spouse to leave the matrimonial domicile and litigate in a foreign jurisdiction.

Take the present case: Desertion is a matrimonial offence in New York, for which a remedy is there given, not, however, of a divorce a vinculo, however long the desertion be continued. The complainant, after being deserted in New York, conies to New Jersey and resides here for two years and claims, and must establish, in order to succeed, that it was her husband’s duty to follow her to New’Jersey and live with and support her here, or, at the least, provide a home for and support her somewhere, and that his failure to do so amounts to desertion here in this jurisdiction, where desertion for that length of time of a resident of the state is a cause of absolute divorce, and then asks the court to compel her husband to come here to defend himself against that charge or go undefended, for, of course, the offence under our statute, upon which the complainant must rely, is not the desertion, however long the time, while complainant was a resident of New York, but a continuation of that desertion for two years in the State of New Jersey.

It is thus seen that’the complainant voluntarily creates the situation—the “necessity”—which enables her to make a matrimonial offence sufficient to entitle her to a divorce, which offence does not have that effect in the matrimonial domicile. Ought this court to assist a party to attain such a result, unless there is some controlling reason for acquiring the new domicile, other than the mere desire for an absolute divorce? I think not.

It is neither necessary nor proper to attempt to state here what influential circumstances will, in my judgment, suffice to legalize the acquisition of such new domicile. I will, however, mention one out of several which has heretofore influenced my judgment in that direction. It is this: a woman whose parents and relatives all live in New Jersey may marry a man living in New Y.ork and may become domiciled there with him; he may commit the matrimonial offence of desertion against her there and leave her in such circumstances that she has no lióme to go to except that of her parents or relatives in the State of New Jersey.

Great injustice has been done in many instances, by a spouse acquiring an apparent, and in many cases simulated, domicile thousands of miles distant from his or her matrimonial domicile, and calling upon the other spouse who retains the matrimonial domicile to defend a suit for divorce all that distance from his or her residence.

Then it is so easy to impose upon and deceive the court in the matter of domicile, and so difficult to detect such imposition when the case is heard ex parte.

Spouses who seek to establish a distant domicile for the purpose of procuring a divorce, do not hesitate to swear, in the most positive manner, that they intend to remain and live permanently in the new domicile, and yet, as soon as their decree is granted they return to their former residence. All judges who have dealt with such cases have observed this phenomenon. I have myself read the evidence underlying the decree of a western court in several such cases, and in each, after swearing positively as just stated, the spouse returned at once to his-former home and occupation. No doubt the same phenomenon was present in the case of Bell v. Bell, above cited.

It may be that this question is of little practical importance in New Jersey in one aspect. There is but one state which, so far as I know, does not include continued desertion among causes for divorce, namely, New York, and comparatively little injustice can arise by compelling a party to come from New York to New Jersey to defend a divorce suit.

But in another aspect it is ‘of great importance. If our courts assume to act upon a simulated domicile we cannot criticise other courts, however distant, for doing the same thing. We must observe the rule of comity, and do as we would be done by.

It has been my rule, and I believe that of the other members of the court, not to grant a decree for divorce for desertion based upon a service out of the jurisdiction and a domicile not matrimonial, unless such domicile has been acquired under circumstances showing sufficient and controlling reasons for its acquisition, other than the desire to procure a divorce, and certainly never when the avowed object was to obtain that relief.

Such was the ratio decidendi in McGean v. McGean, 15 Dick. Ch. Rep. 21. The court of errors and appeals, .in affirming the decree in that case, does not disapprove of that ground, but saw fit to put its approval on another ground. McGean v. McGean, 49 Atl. Rep. 1083.

In Tracy v. Tracy, 15 Dick. Ch. Rep. 25, I made some of the suggestions hereinbefore stated, and declined to ,advise a decree, on two grounds—first, want of continued residence for two years, and second, because there was no sufficient proof of the animus manendi.

The court. of errors and appeals, in reversing that decree (Tracy v. Tracy, 48 Atl. Rep. 533), held that the petitioner had acquired a “residence” for two years, and so brought herself within the statute of this state. But the learned judge who spoke for that court did not notice, or deal with, the question of the power of the court to acquire jurisdiction of the defendant, by service of notice upon him out of the state, based upon the residence there proven. I cannot believe that that aspect of the case was brought to their attentipn. The case of Atherton v. Atherton, in the supreme court of the United States, had not then been published, and the learned judge, in his opinion in Tracy v. Tracy, omits to refer to some of the leading cases defining domicile, particularly Harral v. Harral, 12 Stew. Eq. 279.

And on that subject I beg leave to say that the words “inhabitant” and “resident,” used in the first section of the statute, do not, naturally or neeessarity, imply that the party, in order to be an “inhabitant” or a “resident,” must have any established domicile in this state.

A person may reside in, and be a resident of, a place or state for years without ácquiring a domicile.

The word “inhabitant” was used by Judge Paterson in drafting the act of 1794, which first gave jurisdiction to this court over the subject-matter of divorces; and the word “resident” was first introduced in the act of February 3d, 1818. P. L. of 1818 p. 20. It seems to be synonjmious with “inhabitant.” The object of the original act was, as I have said, to give this court jurisdiction of a new subject-matter, and not to define in what cases it should have power to proceed upon service of notice upon a non-resident out of the jurisdiction. (A careful study of the whole course of legislation shows this. The first legislation applied only to cases where both spouses were residents of this state.) And, if it had assumed to do so, its effort, as we have seen, would have been futile.

The legislature has the power to declare certain conduct to be a cause for divorce when committed against a resident spouse or inhabitant of the state who has no domicile here. And if such party brings suit here, and is able to effect service upon the other party within the state, the court will have complete jurisdiction of both the subject-matter and the party defendant, and may make a decree binding in all jurisdictions, without regard to the question of the real domicile of either of the parties. Such a case was Pohlman v. Pohlman, 15 Dick. Ch. Rep. 28.

Now, as before remarked, I think there is a clear distinction between a residence, of a nature sufficient to give the court jurisdiction of the subject-matter, under our statute, and also for the purpose of making a case of desertion as a cause of divorce, under the same statute, on the one hand, and the domicile which is necessary to give this court jurisdiction, under international law, to decree a divorce based upon service of process or notice upon a non-resident out of its territorial jurisdiction, which decree shall stand the test of criticism by the supreme court of the United States. And I am unable to find in the opinion of the court of errors and appeals, in Tracy v. Tracy, evidence that the court had that distinction called to its attention, or that'it intended to intimate an opinion upon it.

However, be that as it may, the opinion in Tracy v. Tracy carefully distinguishes that case from the McGean Case, and leaves the doctrine stated in the latter case in the opinion below undisturbed.

Then there is the great authority of Chancellor Green, as expressed in his opinion in Brown v. Brown, 1 McCart. 78, a case, for present purposes, like the present, although it does not appear by the report—whatever the record may disclose—that the jurisdiction there was found on extra-territorial service, or that the attention of the court was called to the question I have tried to discuss. After discussing the question of statutory jurisdiction of the cause, he says (at p. 80) : “Waiving all consideration of the question whether the wife can thus acquire a domicile distinct from that of her husband, whether she was not, in law, at the time of filing her bill, a resident of the-State of New York, the actual residence in this state was adopted under circumstances which warrant the conclusion that the change of residence was made for the purpose of obtaining a divorce. Sound policy forbids that the judicial tribunals of this state should thus be used by citizens of other states, in evasion of their own laws, or to procure redress for which resort should be had to their own tribunals.” It is true that his decree based upon that opinion was reversed upon appeal, but the opinion was not filed, and it may have been-based upon, a different view of the facts.

Chancellor Zabriskie does, indeed, say of Brown v. Brown, in Coddington v. Coddington, 5 C. E. Gr. 265: “It is well understood that the last case was reversed in the court of appeals on the ground that the chancellor held that, notwithstanding the act of 1857, a residence of five years during the desertion was still required; the complainant had resided in the state more than three years during the desertion; and also because the chancellor held that a residence resumed in this state, seemingly for the purpose of bringing a suit, although there was an actual change of residence, was not sufficient under the requirements of the act.”

I think, that an examination of the evidence will show that the original domicile of complainant, before marriage, was in this state, and that after desertion by her husband in New York she naturally enough returned to her original domicile.

But, notwithstanding his reversal, we find the same great judge expressing himself to the same effect in incisive and graphic language in Winship v. Winship, 1 C. E. Gr. 107 (at p. 109).

For these reasons I must decline to advise a decree for the complainant, and think that the bill should be dismissed.

It is proper to add that the learned master acted upon the erroneous supposition that the case of McGean v. McGean was reversed by the court of errors and appeals.

Since preparing the foregoing I have had the opportunity to read an opinion prepared by the chancellor in the case of. Sweeney v. Sweeney (since reported, 50 Atl. Rep. 785), which discusses from the standpoint of actual authority in New Jersey the questions which I have dealt with, and comes to the same conclusion, and I am authorized to say that he also agrees with my view of the duty and the power of the court to proceed in such a case upon service out of the jurisdiction.

I append the following digest of the statutes creating jurisdiction of the court of chancery over divorces:

. The original act, passed the 2d of December, 1794 (Pal. L. of 1794 p. 143), provides:

“that the court of chancery shall have jurisdiction of all causes of divorce by this act directed and allowed, provided the parties be inhabitants of this state.”

There is no provision in it for acquiring jurisdiction of spouses out of the state, but it declares that the like process and course of practice and procedure shall be had and pursued in all causes of divorce as are usually had and pursued in other causes on the equity side of the said court, except, &c.

There was at that time no provision, so far as I am aware, for acquiring the jurisdiction or non-resident parties. I will refer to these provisions later.

On the 4th of March, 1795, the legislature passed a supplement to the Divorce act (Pat. L. of 1795 p. 160), providing:

“that in all divorce causes brought, or to be brought into the court, of chancery of this state, if the party against whom complaint is or shall be made, hath or shall, after the cause of comploMit hath arisen, remove without jurisdiction of the said court, so that the process thereof cannot be served or if served, the party cannot be compelled to appear and answer or plead, it shall and may. be lawful for the chancellor, on bill .filed and due proof that the defendant hath removed as aforesaid, to order a hearing on the facts charged in the said bill, and thereupon to pass a decree in the same manner as if the defendant had appeared and were present in court; provided, nevertheless, that a copy of said order for hearing be published in one of the public papers in this state, and in one of the public papers of the states of New York and Pennsylvania, or served on the party against whom complaint is or shall be made, for the space of two months at least before the day appointed for the said hearing.”

These two acts show clearly enough that the legislature clid not intend to give jurisdiction to the court of chancery over the subject of divorce except in those cases where the matrimonial residence at the time of the commission of the offence was in this state.

By the act of February 3d, 1818 (Pat. L. of 1818 p. 20), the legislature enlarged the jiirisdiction by declaring that the court of chancery shall have jurisdiction:

“provided the parties [complainant and defendant] were or shall be inhabitants of this state [at the time of the injury, desertion or neglect complained of, or where the marriage shall have been solemnized or taken place within this state, and the complainant shall have been an actual resident in this state at the time of the injury, desertion or neglect complained of, and at the time of exhibiting the bill].”

It will be observed that the word “inhabitant” is retained in the first part of the act, and the words “actual residence” are inserted in the latter part, which is an amendment to the original act.

By the twelfth section the chancellor is authorized to proceed against a non-resident by publication, and by the thirteenth section the previous acts were repealed.

This act was followed by the act of February 16th, 1820 (P. L. of 1820 p. 43; Rev. L. of 1821 p. 667).

That act repealed the three previous acts above mentioned, and by its first section defined the jurisdiction. By that act the jurisdiction was enlarged by adding to the text of the act of 1818, after the words "provided the parties, complainant and defendant,” the words "or. either of them,” and by adding at the end of the first section of that act the words:

“Or where the adultery was committed in this state, and the parties, complainant and defendant, or either of them, reside in this state at the time of exhibiting the bill; provided, such complainant shall make his or her oath or affirmation, to be annexed to the bill of complaint, that his or her complaint is not made by any collusion between him or her, and the defendant, for the purpose of dissolving their marriage, but in truth and good faith for the causes set forth in the bill of complaint.”

That act makes no provision for proceeding against absent defendants, but reliance was had upon the provision of that section which said that the like process and course of practice should be had in divorce cases as in other cases in the court of chancery.

These were as follows:

The act of March 12th, 1798 (Pat. L. of 1798 p. 303), provides for the bringing in of non-resident defendants in foreclosure cases only.

The act of June 13th, 1799 (Pal. L. of 1799 p. 428 § 16) (at p. 430), provides for proceeding against non-resident defendants only in cases where there are several defendants and some of them reside out of the state and some within the state. It does not provide for a case where all the defendants or a single defendant reside out of the state.

The act of February 29th, 1820 (P. L. of 1820 p. 99), first provided for the bringing in, by publication, of any and all absent defendants in all causes. Rev. L. of 1821 p. 702.

By the act of December 13th, 1824 (Harr. Com. 69), the legislature provided that suit for divorce may be brought by petition and citation, as well as by bill.

The next legislation was an act passed on the 22d of February, 1843 (P. L. of 1843 p. 84), which recites doubts as to the construction of the act of 1820, and declares as follows:

“That the act to which this is a supplement shall be construed so as to' give to the court ot chancery jurisdiction of all causes of divorce, and of alimony or maintenance, in cases of desertion, by the said act directed and allowed; provided the complainant or defendant shall be a resident of this state at the time of the filing of the bill of complaint, and the complainant or defendant shall have been a resident of this state for the term of five years, during which such desertion shall have continued.”

These sections were consolidated in the revision of 1846 (at p. 922), as follows:

“That the court of chancery shall have jurisdiction of all causes of divorce and of alimony or maintenance, by this bill directed and allowed, provided the parties, complainant and defendant, or either of them, were or shall be inhabitants of this state at the time of the injury, desertion or neglect complained, or where the marriage shall have been solemnized or taken place within this state, and the complainant shall have been an actual resident in this state at the time of the injury, desertion or neglect complained of, and at the time of exhibiting the bill, or where the adultery was committed in this state, and the parties complainant and defendant, or either of them, reside in this state at the time of exhibiting the bill, or where the complainant or defendant shall be a resident of this state at the time of filing the bill of Complaint, and the complainant or defendant shall have been a resident of this state for the term of five years during which such desertion shall have continued ; provided, such complainant shall make his or her oath or affirmation, to be annexed to the bill of complaint, that his or her complaint is not made by any collusion between him or her and the defendant, for the purpose of dissolving their marriage, but. in truth and good faith for the causes set forth in the bill of complaint.”

By tlie act of March 20th, 1857, it was enacted

“that divorces from the bond of matrimony may be decreed for willful, continued and obstinate desertion for the term of three years [and] that all acts or parts of any act, inconsistent with the provisions of this act, be and the same are hereby repealed.”

It was held by Chancellor Green, in Brown v. Brown, 1 McCart. 78, that this act did not repeal, by implication, that clause in the first section of the act of 1846 which required a five years’ residence in order to give the court jurisdiction, but the court of appeals held the contrary.

By the revision of' March 27th, 1874, the first clause of the revision of 1846 was re-enacted, with two changes—instead of the word “bill” in the first section the word “act” was inserted, and instead of the words “five years” the words “three years” were inserted.

By the act of March 7th, 1889 (P. L. of 1889 p. 40), the first section was amended by inserting the word “two” instead of the word “three” in the statement of the length of residence and desertion necessary to confer jurisdiction of the subject-matter.


author: Emery, V. C.

text:
    James T. Gough v. Mary E. Williamson.
    [Filed November 2d, 1901.]
    1. Where, on a bill to specifically enforce a contract to sell real estate, made at public auction, but not signed by defendant or her agent the auctioneer, defendant’s answer makes admissions as to the contract, and fails to set up the statute of frauds, the contract can be enforced against defendant so far as the admissions in the answer extend.
    2. Where, on a bill to specifically enforce a contract to sell real estate, made at public auction, but not signed by defendant or her agent the auctioneer, defendant’s answer expressly refers to the advertisement of sale and to the contract, such instruments may be identified by parol, and, if the complete terms of the agreement are shown by them when so identified, the statute of frauds is satisfied.
    3. An advertisement of an auction sale recited that the auctioneer was instructed to sell “the choice business corner-property known as No. 368 G. st.,” and that “the lot, being 25 feet front on G. street, made a desirable investment.” The owner of an adjoining lot made the purchase, and signed the written conditions of sale, to which a copy of the advertisement was attached. The actual frontage of the property was twenty-five feet five and three-quarter inches.-—Held, that the statement as to size of the lot was not intended as a description of the property, or to cut the lot down to twenty-five feet, and that the purchaser was entitled to a conveyance of the whole corner, according to the general description in the advertisement.
    4. In order to reform a written contract for the sale of realty by substituting a description by metes and bounds for a general description by lot number, a mutual mistake with respect to the form of the contract as actually signed is necessary.
    5. Where, on a bill to reform such a contract and for its specific enforcement as reformed, the prayer for reformation is refused, the relief of specific performance of the contract, as found to be proved, may be granted under the prayer for general relief, inasmuch as it is relief of the same general nature as that specially prayed.
    On bill for specific performance. Heard on bill,-answer, replication and proofs.

      Mr. Charles II. Kartshorne, for the complainant.

      Mr. Boyd McLean, for the defendant.
   Emery, V. C.

The special relief sought by the bill in this case is the reformation, on behalf of the purchaser, of a contract for the sale of a lot of land in Jersey City, and a specific performance of the contract as reformed. It is alleged by the purchaser that a mistake was made in the description of the property in the contract of sale, in relation to the width of the lot intended to be sold. The bill does not set out in hcec verba, or at length, the contract of sale claimed to have been made, but says that the contract described the lot in question as “the choice business corner property, known as No. 368 Grove street, southeast corner of First street, Jersey City,” but with what are called in the bill, the additional words of description, in another part of the contract, “the lot being 25 feet front on Grove street and 100 feet on First street.” The actual width of the lot owned by defendant on this corner is twenty-five feet five and three-quarter inches. Complainant, who owned the adjoining lot on Grove street, and who purchased, as he supposed, the whole lot to his line, claims that the lot intended to be sold was the lot twenty-five feet five and three-quarter inches wide, and seeks to reform the contract by inserting this particular description, and then to have the contract as reformed specifically enforced. Defendant admits a contract to convey a lot twenty-five feet in width and denies any mistake on her part. On the hearing it appeared that the contract of sale, which was made at public auction, although signed by complainant, was not signed either by defendant or her agent, the auctioneer. Under the statute of frauds, therefore, the contract could not be enforced, but for the fact that the answer of the defendant makes admissions as to the contract and fails to set up the statute. The contract can, therefore, under the rule stated in Ashmore v. Evans, 3 Stock. 151 (Chancellor Williamson, 1856), be enforced against defendant, so far as the admissions of the answer extend; and the principal question for decision in the. case is as to the scope and effect of the admissions made in the answer, as to the contract made between complainant and defendant’s agent. The answer does not set out the written contract signed by complainant, and the admissions of the answer are admissions as to the terms and legal effect of the contract' and in reference to the description of the property are substantially as follows, viz., that defendant is the owner of lot on the southeast corner of Grove and First streets, Jersey City; that on May 8th, 1900, her agent, Montgomer3r, contracted to sell and convey a lot twenty-five feet on Grove street and one hundred feet oar First street to coanplainant; that the contract was for a lot of this size and that she refuses to convey a lot of different dimensions; that she deaiies that she intended to coaivey a lot of greater width than twenty-five feet, or supposed that was all the land owned by her, but she believed she owned twenty-six feet on Grove street by one hundred feet on First street, of which she instructed her agent to sell twenty-five feet by one hundred at auctioar sale. The further admission is, however, then made:

“that the advertisement of the sale so stated the dimensions of the property, and that she intended to sell to the highest purchaser so much of her property as was included in the description in the said advertisement and contract.”

The advertisement and the contract made between complainant and defendant’s agent being thus expressly referred by the answer as describing the property intended to be conveyed, the advertisement and the contract thus referred to may be identified by parol evidence as the writings or papers referred to in the answer, and if from them, when so identified, the complete terms of the agreement appear, the statute of frauds is satisfied. Ridgeway v. Wharton, 6 H. L. Cas. 238, *257 (1857); Johnson v. Buck, 6 Vr. 338, 344 (Supreme Court, 1872).

The evidence at the hearing in reference to the description of the property shows that on June 39th, 1899, defendant, by a writing signed by her, appointed Montgomery her agent to sell and dispose of “my property situate on the southeast corner of Grove and First streets, Jersey City,” without any further or other description in the paper. After unsuccessful efforts to dispose of the property at private sale, Montgomery, after consultation with defendant, and after showing the proposed advertisement to defendant, advertised the property for sale, as follows:

“Valuable Grove street corner-property to be sold at auction.
“W: J. Montgomery, Auctioneer,
“Office, 58 Montgomery St.,
“Has received instructions' to sell, on Tuesday, May 8th, 1900, at 2 p. at., on the premises, the choice business corner-property lmown as No. 368’ Grove street, southeast corner of First street, Jersey City.
“Said property has a three-story frame building, with brick and stone basement thereon, containing fourteen (14) rooms, with improvements, all in good condition.
“The lot being 25 feet front on Grove and 100 feet on First street, near the business centre of Newark avenue, makes it a very desirable investment, and positively will be sold to the highest bidder.”

There were written conditions and terms of sale to which a copy of the advertisement was annexed. Complainant, who owned a lot on Grove street adjoining defendant’s lot, purchased the premises at public auction for $6,450, and signed at the foot of the conditions the following memorandum:

“I have bid off the property described above for the sum of six thousand four hundred and fifty dollars, subject to the above terms of sale, to all of which I hereby agree to comply.”

Neither the defendant, nor her agent, the auctioneer, signed the advertisement or conditions of sale, but inasmuch as the answer substantially admits that a contract was made between complainant and Montgomery, as her agent, for the sale of the property described in the advertisement and contract, the identification of this written contract, which was the only one signed by complainant, as the contract admittedly made by complainant with defendant’s agent, is made out by evidence sufficient to satisfy the statute of frauds. And inasmuch as the answer refers to the advertisement of sale and contract as describing the property, the case does not come within the rule laid down in Johnson v. Buck, 6 Vr. 338 (Supreme Court, 1872), that where the unsigned paper is not referred to in the signed paper, they cannot be connected by parol evidence. Taking, then, the contract of sale to be evidenced by the advertisement, the conditions of sale to which it is attached, and the memorandum at the foot of the conditions, the property described as the subject-matter of sale, and intended to be sold, was “the property known as No. 368 Grove street, southeast corner of First street, Jersey City.” • The subsequent statement in the advertisement was a representation as to the size of the lot—twenty-five feet on Grove street by one hundred on First street, and was not intended as a description of the property, to cut down the lot to twenty-five feet frontage, if it was more than twenty-five feet, or to guarantee that frontage if it was less. It was intended, I think, only as a statement of the substantial width of the lot, in connection with circumstances, as to its -location and the buildings on it, which made it a desirable business property. The defendant being then, as complainant also knew, the owner of but one lot on this corner, the difference of a few inches either way, from the figures stated, would not have relieved either vendor or purchaser from the contract to sell or purchase the lot known as No. 368 Grove street.

The complainant is entitled to a conveyance of the lot purchased, as described in the contract signed by him—that is to say, “the property known as number 368 Grove street, southeast corner of First street, Jersey City.” He is not entitled on this bill and answer to a conveyance of a lot, by the special description by the metes and bounds set out in the bill, for the reason tliat no contract to convey a lot by that description has been proved, either by the answer or the advertisement and contract admitted by and referred to in the answer. Neither has it been shown that either of the parties intended that the form of the contract should be other than the one actually signed. A mutual mistake in this respect must be made out, in order to correct or reform an agreement reduced to writing. Henderson v. Stokes, 15 Stew. Eq. 586 (Vice-Chancellor Bird, 1887); Green v. Stone, 9 Dick. Ch. Rep. 387, 397 (Errors and Appeals, 1896).

The contract admitted by defendant’s answer to have been made by her agent, was signed by complainant in the precise form in which both parties at the time intended it should be signed, and the circumstance requiring equitable interference or aid, is that in the contract so admitted and signed, the general description of the property is, or is claimed to cover, more property than the particulars given. If both the general and the particular descriptions had been embraced in a deed for the premises and they did not agree, the question would have arisen as to which description governed. The inconsistency having-been discovered before the deed had been actually delivered, the question in relation to specific performance of the contract is, what was by the true construction of the written contract the description of the property sold? Finding that the property intended to be sold was the property as described by the general description, complainant is entitled to a deed in the terms of the general description in the contract, and if there is any dispute as to how much this description covers, the purchaser is entitled only to a deed in the words of the agreement as to the property conveyed. Waters v. Bew, 7 Dick. Ch. Rep. 787, 790 (Vice-Chancellor Green, 1894). The complainant now claiming that the lot which he purchased and which was known as No. 368, is twenty-five feet and six inches wide, he is entitled to have a deed in which the ’lot purchased shall be conveyed by the general description, and cannot be obliged to take a conveyance, in which the dimensions of the lot are laid out by a particular description which would or might have the effect of limiting or controlling the general description. Nor, on the other hand, is complainant entitled to require a deed from defendant in which a particular description shall be used, covering the lot by the particular description which complainant claims to be the lot No. 368.

The special prayer of complainant’s bill to reform the contract by describing the lot particularly, and then specifically enforce the contract, must therefore be denied. But itíasmuch as the complainant’s bill prays for general relief and sets out that the contract of sale described the lot as "the choice business corner property known as No. 368 Grove street,” &c., the relief of specific performance of the contract as now found to be proved, can be granted under the prayer for general relief, inasmuch as this is relief of the same general character as the special relief prayed. Read v. Cramer, 1 Gr. Ch. 277 (Chancellor Pennington, 1839); Berryman v. Graham, 6 C. E. Gr. 378 (Errors and Appeals, 1869); 1 Dan. Ch. Pr. (6th Am. ed.) *378, note 2. A decree for specific performance will he advised.