author: Vredenburgh, J.

text:
    The Township of Franklin, respondent, v. Mathias F. Crane, appellant.
    [Submitted July 8th, 1912.
    Decided November 18th, 1912.]
    1. The legal relation of a tax collector toward the township which he-serves, in respect to tax moneys collected by him for its use, is not of such a fiduciary character as to be the subject of equity jurisdiction, but is rather that of a debtor toward his creditor, and a court of equity will not entertain jurisdiction of a suit brought by the township against the collector for an accounting by him, and the collection of tax moneys unlawfully appropriated or wasted by him, for the reason that adequate-remedies against him to enforce such accounting and collection are available at law.
    2. Discovery alone will not sustain a bill for an accounting.
    3. The discovery prayed for by the bill of complaint is not such as will give jurisdiction to a court of equity; it relates, solely, to matters of defence which the complainant anticipates, the defendant will set up as to the disbursements by him of tax moneys shown by the bill to have been received by him, and is not matter sought for in aid of the facts-necessary to establish complainant’s case.
    4. The trusts which equity administers and enforces are, principally, private trusts arising from contracts express or constructive, exhibited generally in writings, or verbal only, except where prohibited by statute. A public office does not rest upon contract, hut on duty, and the appropriate forum .for the enforcement of official duties is primarily a court of law—by mandamus if the duty be clear and the amount involved is not fairly disputable, or by action at law upon the common counts if the-amount claimed he not certain or fixed.
    5. The township records show how much money came originally into its-officer’s hands, and while the moneys he may have illegally disbursed may be unknown, yet he does not cease to owe them to the municipality. He-is its debtor to that extent, and the proper remedies against him fortlieir recovery are those which the courts of law afford. The effect of holding the relation of the defendant to the township to be that of a trustee and cognizable in equity is to deprive him of the right of a ■trial by jury and the protection of the statute of limitations.
    On appeal from a decree of tlie court of chancery advised by Vice-Chancellor Learning..

      Mr. Austin R. Swaehhamer, for the appellant.

      Mr. Harvey F. Carr, for the respondent.
   The opinion of the court was delivered by

Vredenburgh, J.

The hill of complaint in this cause is filed by the township of Franklin, Hew Jersey, against its former tax coi lector to obtain a decree for money charged to have been collected and received by him by virtue of his office during the years 1893, 1894, 1895, 1896, 1897, 1898, 1899, 1900, 1901, 1902, 1903, 1904, 1905 and 1906, aggregating the sum of $153,413.64. It charges that after this tax money was so received the defendant made many disbursements thereof without proper or lawful warrant or authority and to divers persons unknown to- the- complainant. The prayer of the bill is that the defendant discover to what persons, ■and for what purposes, and upon what warrant and authority he paid out and disbursed the funds of the complainant from time to time, and that he may discover all vouchers or warrants for the payment of funds; that he may account to complainant for the moneys by him received and disbursed, and may be decreed to pay over and refund to complainant all moneys paid out and disbursed by him for the payment and disbursements of which there was no lawful or proper warrant or authority. The bill docs not charge that a fiduciary relation of any sort existed between the complainant and defendant with regard to any of the matters set up in the bill respecting the tax moneys sought to be recovered in this suit, nor that such moneys were received or disbursed by the defendant as a trustee for complainant, 'nor under any relation partaking of the character of either a public or private trust.

• Demurrer to the bill was filed by defendant setting up, among the causes of demurrer, that the complainant had not by its bill stated such a case as entitled it in a court of equity to any discovery from defendant, or any relief against him as to the matters contained in the bill; that the facts stated in the bill did not bring the cause under any head of equity jurisdiction, and that the complainant had an adequate remedy at law.

The demurrer was overruled by the learned vice-chancellor in an opinion advising an order to that effect. In it he said that the defendant was an officer of the complainant municipality entrusted with duties of a fiduciary nature—that the relation between such an officer and the municipality is essentially the relation of trustee and cestui que trust, and that this relation affords grouhd for equity jurisdiction.

We think this conclusion of the vice-chancellor is based upon an unsound premise, and that the relation of the defendant toward the township in respect to tax moneys collected by him in the performance of his official duties, is not of such a fiduciary 'nature as to be the subject of equity jurisdiction, but is that rather of a debtor toward his creditor.

The vice-chancellor, in his opinion, says, that few cases of bills in equity against such public officers for an accounting are to be found, but that in the case decided in this court of the Borough of Rutherford v. Alyea, 54 N. J. Eq. (9 Dick.) 411, no suggestion was made of want of jurisdiction of the court to require an accounting from an officer of a municipal corporation, and that he was unable to distinguish that case from the present. The silence of the opinion of this court upon the point of jurisdiction in that, case cannot, I think, be regarded as having the significance or effect attributed to it above The preliminary and controlling question in that case was the manifestly multifarious character of the bill as framed, and this court met that question at the very threshold, and, deciding that it was clearly multifarious, ordered (of its own motion) the dismissal of the bill.

It is true that this court, in so deciding, also found other reasons why the bill should not be entertained, holding, inter alia, that a bill for am account would not be retained when it shows on its face the complainant is informed of all the items of the account, and no relief is prayed with reference to the balance. ■It was nowhere intimated in the opinion that the nature of the relation of the defendant-collector with the township was fiduciary, but, quite to the contrary, the court evidently regarded such relation as only that of a debtor to his creditor, the distinguished author of the opinion remarking (on page 413 of the case) that “an ordinary .action for money had and received would seem to afford the complainant an ample remedy.”

An examination of the reports of that case, both in the court of chancery (53 N. J. Eq. (8 Dick.) 580) and in this court (54 N. J. Eq. (9 Dick.) 411), will make it apparent that this jurisdictional question was neither presented nor argued by counsel, and, presumably, for that reason the opinion of the courts do not advert to such a question.

The trusts which equity administers and enforces are mainly private trusts arising from contracts, express or implied, in law, exhibited generally in -writings, or verbal, only, except so far as forbidden by the statute of frauds. . 1 Pom. Eq. Jur. §§ 152, 153; 2 Ibid. 987. A public office does not rest upon contract,' but on duty, and the appropriate forum for the enforcement of official duties is primarily a court of law—by mandamus, if the duty be clear, and tire amount involved is not fairly disputable (State, ex rel. Meinzer, v. Disbrow, 42 N. J. Law (13 Vr.) 141), or by action at law upon the common counts if the amount claimed is not certain or fixed.

All the tax money tire defendant has paid out without authority of law he still holds, in legal contemplation, to the use of the township, and for that he is liable to respond in an action at law for money had and received. He cannot successfully defend that he lias paid the moneys of the township to pothers than those lawfully entitled to them. Manifestly, he had no more right to disburse the tax funds without the authority of the township,, or to persons not legally entitled to them, than to throw the money into' the sea.

The defendant held toward the township no trust relation of any kind with respect to tax moneys collected by him. As to these he was neither a public nor private trastee. While in a popular sense a public office is often called a public trust, it is not so in any proper legal sense, and there is certainly no room for the position that the relation of the collector to the township was that of a trustee administering a private trust.

The records kept by the township show precisely how much money came, originally, into its officer's hands, and while the •sums of money he may have illegally disbursed may be unknown, yet he does not cease to owe them to the municipality. He was its debtor to that extent, and the remedies against him for their recovery are those which the courts of law fully afford. The effect of holding that the relation of the defendant to the township was that of a trustee and cognizable, in. equity, is to deprive him of the right of a tabal by jury, as well as to take away from him the protection of the statute- of limitations. In an early leading case (Foley v. Hill, 2 H. L. Caa. 28) it was held by the house of lo-rds that the relation of banker and customer is not fiduciary in its character, but was regarded by the able equity judges who decided the ease (including Lords Campbell and Brougham) as that of debtor and creditor. The doctrine of this decision—that the relation of the banker and its customer is not fiduciary in its character—is applicable, I think, to the situation of the tax collector who is a custodian of tire tax moneys of the township. He is a debtor to the township to the extent of its mone3r in his keeping, precisely as is the banker a debtor to his depositor to the extent of the deposits in the hands of the former. Eor default in their payment to the depositor, upon-his demand, it is not open to dispute that the banker would be liable for them in a suit at law. Smith v. Chosen Freeholders of Essex, et seq.

Professor Pomeroy, in volume 1 of his Equity Jurisprudence 178, states the general rule thus:

“Where the primary right of the plaintiff is purely legal, arising either from the non-performance of a contract, or from a tort, and the money sought to be recovered as a debt, or as damages, and the right of action is not dependent upon or connected with any equitable feature or incident, such as fraud, mistake, accident, trust, accounting or contribution, and the like, full and certain remedies are afforded by actions at law, and equity has no jurisdiction; these are eases especially within the sole cognizance of the law.”

Respecting the feature of accounting above excepted from the general rule lie adds, as follows, viz.:

■“Whenever an action at law will furnish an adequate remedy, equity floes not assume jurisdiction because an accounting is demanded, or needed, nor because the case involves or arises from fraud, nor because a contribution is sought from persons jointly indebted, nor even to recover money held in trust, where an action for money had and received will lie.”

'That ihe courts of law will furnish the complainant the adequate relief just indicated by Pomeroy can, 1 think, be easily displayed. Atnong the official duties required by our statute of the township collector (Comp. Stat. 1911 p. 5578 § 17) are the following:

’ “The collector shall on or before the fifth day of February, annually make to the township committee and file with the township clerk, a full and detailed account of his receipts and disbursements as such collector for the next preceding fiscal year, the names of all persons delinquent in the payment of their taxes, at the close of such fiscal year together with the amount of taxes due from them respectively, which account shall be in writing and verified by his oath.”

The township, by force of this statute, has certainly a clear remedy by a writ of mandamus issuing out of the supreme court, to compel its collector (in the event he has neglected or refused to perform his duty) to file with its clerk, in writing, under oath, the account of his receipts and disbursements of tax moneys which it is now seeking to obtain by a resort to 'equity. Hot only so, but (unless there is a fair question of dispute as to the amount) to also compel him to perform his further duty to pay over to the township the amount of the tax funds which ■either are, or should be, in his hands. State v. Disbrow, supra. If in such a mandamus proceeding it should appear there exists a fairly disputable question as to the amount of such moneys clue from him, and the ■mandamus proceeding should, for that reason, fall short of complete relief, the township has the additional .and adequate remedy to recover from him what may be due it by an action at law against him for money had and received. I think the adequacy of these two remedies, supplementing each other, must be conceded, and that further discussion on this head is uncalled for, except to quote from the case of Smith v. Chosen Freeholders of Essex, 48 N. J. Eq. (3 Dick.) 627, where Chancellor Magie, expressing the opinion of this court, said: “The line of division between legal and equitable remedies is fixed in this state by a long course of precedents, and even legislative authority is forbidden to intermingle these remedies by the constitutional prohibition against interference with the ancient jurisdiction of the courts.” * * * “The result is that respondent, on its own statements, has an adequate and complete remedy at law, and may not, therefore;, maintain this bill against appellant.”

It is urged that the complainant’s bill should have been sustained because of the discovery prayed for, but it is well settled that discovery alone will not sustain a bill for an accounting.

The opinion below concedes that the bill cannot be entertained a.s 'a bill for an accounting upon the" sole ground that it sought a discovery, and the case there cited of Daab v. New York Central Railway, 70 N. J. Eq. (4 Robb.) 489, fully supports that view. The decision of the court of chancery in that case holds that where the primary rights of the complainant, for the enforcement of which a suit in equity is brought, are strictly legal, the mere fact that the bill prays for a discovery presents no ground for extending the jurisdiction of equity to compel the defendant to account. This principle is fully sustained by the numerous authorities referred to on page 491 of .the cited opinion, and is in accord with the views we entertain and which we have above intended to express.

The discovery especially prayed for by the bill is not, we think, such as -will give jurisdiction to a court of equity; it relates entirely to matters of defence which the complainant anticipates the defendant will interpose as to the payments and disbursements by him of tax funds charged by the bill to have been received by him, and is not matter sought for in aid of the facts necessary to establish complainant’s case.

The right of discovery is thus expressed in 1 Dan. Ch. Pl. & Pr. 606, viz.:

“The principle upon which the cases proceed, is that the right of a plaintiff in equity to the benefit of a defendant’s oath is limited to a discovery of such material facts as relate to the plaintiff’s case, and does not extend to a discovery of the manner in which, or of the evidence by means of which the defendant’s case is to be established, or to any discovery of the defendant’s evidence/’'

Daniel's, supra (at p. 606), and authorities cited in note (2) on that page; 2 Story Eq. Jur. § 1497; Gelston v. Hoyt, 1 Johns. Ch. 543.

The bill does not show that the facts, discovery of which is sought, are necessary to complainant's case, and not facts by which the defendant intends to- establish his case. They should relate to the case of the party presenting them, and are not to be used for the mere purpose of prying into the case of the adversary. 14 Cyc. 315, 354, and cases there, cited; Wolters v. Fidelity Trust Co., 65 N. J. Law (36 Vr.) 130, 132.

The order overruling the demurrer is, for the reasons given, reversed.

For affirmance—None.

For reversal—The Chancellor, Chief-Justice, Garrison, • Swayzb, Trenchard, .Bergen, Yoorhees, Minturn, Kalisch, BCgert, Yredbnbuegh, Congdon, White, Treacy—14. •


source: Caselaw Access Project

license: Public Domain

text:
    The Township of Franklin, respondent, v. Wilson T. Jones, appellant.
    [Submitted July 8th, 1912.
    Decided November 20th, 1912.]
    A prayer for discovery in a bill in- equity, in order to give jurisdiction in a suit otherwise cognizable at law, will not be- deemed sufficient if it is not in aid of the facts necessary to establish the case of the complainant.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning’.

      Mr. Austin H. Swackhamer, for the appellant.

      Mr. Harvey F. Carr, for the respondent.
   The opinion of tire court was delivered by

Vredenburgh, J.

This bill is filed by the township against its clerk to collect from him various sums of money charged to have' been illegally paid to and received by him from the township for his services and salary as clerk of the township. It exhibits certain payments made by it to him taken from the township ledger and minute books, commencing in the jrear 1893 and ending March 4th, 1910, totalling the sum of $3,050.37, purporting to have been paid him at certain dates during these years, for his attendance at committee meetings, for his services as township clerk, and for his salary as such clerk. These payments, for various reasons set forth in the bill, are charged to have been unlawful and contrary to the provisions of the statute in such ease provided.

The prayer of the bill, so far as now material, is, that the defendant may set forth and discover what services were rendered by him as clerk during his continuance in office, for which he was entitled to be compensated by law; the nature and particulars of the services for which he presented bills or statements, and how the same were made up, and what particular services, item by item, are comprehended thereby; and discover how many meetings of' tire township committee he attended as clerk thereof; and that he may be decreed to account to the complainant, and to pay over to it all moneys paid to him as aforesaid, to which he was not entitled by law.

Demurrer to the bill was filed by tire defendant setting u¡r that the complainant had not stated such a case as entitled it to any discovery from the defendant or any relief against him as to the matters contained in tire bill; that the facts stated in the bill did not bring the cause under any head of equity jurisdiction, and that tire complainant had an adequate remedy at law, and other causes not necessary to be noticed.

The demurrer was overruled in the court below.

It is evident, from the statement on the face of the bill and its prayer for discovery, that this is a pure collection suit by a creditor against his debtor for money had and received to the use of the former for which an action at law will lie, and that no fiduciary relation existed between the parties in respect to the money sued for. It is also plain that the discovery prayed for is not such as will give jurisdiction in equity since the matter sought to be elicited relates solely to the defence which the complainant expects the defendant will interpose to its suit, and is not matter sought for in aid of the facts necessary to establish complainant’s case.

Under the principles settled in this court in the suit between the same township and Mathias E. Crane, decided at the present term, and for reasons given in tire opinion there filed, I think the demurrer should have been sustained, and the order overruling it should therefore be reversed.

For affirmance—None.

For reversal—The Chancellor, Ci-iiée-Justice, Garrison, Sfayze, Trenchard, Bergen, Yoorhees, Minturn, Kalisoi-i, Bpgert, Vredenburgii, Congdon, White, Treacy—>14.


author: Per Curiam.

text:
    Walter H. Condict et al., complainants-appellants, v. Erie Railroad Company, defendants-respondents.
    [Argued June 20th, 1912.
    Decided November 18th, 1912.]
    On appeal from a decree of the'court of chancery advised by Vice-Chancellor-Stevens, who filed the following opinion:
    It seems to me plain that the complainant’s proper remedy is ejectment. He claims to have the legal title and to be in possession of a lot of land in Montclair, through which, forty years ago, the predecessor of the defendant, company constructed a tunnel. The possession which he proves is possession of the surface. The company does not deny his possession of the surface, but, bf its answer, says that since 1871 it and its predecessors have been the owners of the tunnel forty feet below the surface, and in the open, notorious and exclusive possession thereof to the extent that it was capable of being owned and possessed. It does not pretend that it ha,s a paper title.
    It appears, by the evidence, that the tunnel was constructed through complainant’s land in 1871, apparently without objection, but, because of the pecuniary embarrassment of the corporation, not through the. whole of the Orange mountain. It further appears that the tunnel has, to some extent, though not entirely, fallen in. The evidence does not show that complainant or his grantor ever entered upon the tunnel or that either complainant or defendant ever actually made any use of it. If defendant now has possession, it is because its predecessor once had possession and because the possession thus had has never been taken away. It is obvious that these are questions within the exclusive jurisdiction of a court of law. There is nothing to prevent complainant from trying them in a legal action. It is true that defendant company in addition to its defence that the action is legal sets up certain equities. These alleged equities may have to he passed upon, hereafter in this court, at defendant’s instance, but the legal question, which is the only question raised by complainant, must first be determined. There is no cross-bill. The bill, may be retained till the action at law is decided.

      Messrs. Condick, Con-diet & Boardman, for the complainants.

      Messrs. Cortland!, .& Wayne P writer, for the defendants.
   Per Curiam.

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

For affirmance,—The Oh cef-Justice, Garrison, Swayze, Tbenchard, Bergen, Voorhbes, Mjntuen, Kalisci-i, Bogert, Congdon, White, Teeacy—12.

For reversal—None.


text:
    Hannah Emson Wilbur, appellant v. William C. Jones, respondent.
    [Argued June 21st, 1912.
    Decided November 18th, 1912.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Walker, who- delivered the following opinion:
    The bill in this cause was filed to foreclose a mortgage for $600 made by the defendant, William C. Jones, to the late Ephriam P. Emson, November 29tb, 1894, and contains this recital, “said $600 is part payment as purchase-money.” The mortgagee •died in June, 1896. Ho interest was paid on the mortgage to him in his lifetime,,and none has been paid to his executrix since his death. Mr. Jones was married at the time tire mortgage was given, but his wife did not join in it, and the bill'alleges that because the mortgage was a purchase-money mortgage its lien is’ superior to the inchoate right of dower of Mrs. Jones. The defendants, Mr. and Mrs. J ones, answer and say that the mortgage in question, was given as collateral security for the pajnnent of a chattel mortgage of $1,200 made by Mr. Jones to Senator Emson, on Hovember 28th, 1894, the day before the making of the real estate mortgage, and that because the chattel mortgage has been fully paid and satisfied there is nothing due on the real estate mortgage, and in a cross-hill they pray that the mortgage for $600 may be delivered up to be canceled. Although these instruments bear different dates their delivery was contemporaneous, as was also that of a deed from Emson to Jones for’the premises upon which the mortgage sought to he 'foreclosed was given.
    The only 'living witness to the transaction and of the delivery of the deed by Emson to J ones and the making .of the mortgage in question is Captain Charles Ewan Merritt, of Mount Holfy, a member of the bar, who represented Mr. Jones, Senator Emson representing himself. Captain Merritt testified that the sale from Emson to Jones was for $3,800, paid as follows: A mortgage of $2,500 to clients of his, $100 cash paid by Jones and $1,200 in a chattel mortgage made by Jones to Emson. He further says that after this transaction Senator Emson stated to him (Merritt) in his office that he (Emson) had asked Jones to give him a mortgage on the real estate for $600 as- securit)" for his $1,200 chattel mortgage; thar that might not “pan out” to $1,200, and there was, in his judgment, something more than $2,500 in the real estate and he wanted a mortgage for $600 ’as further security for the indebtedness of $1,200, and asked Captain Merritt what objection he had to it, and he replied that it was with Mr. Jones and him (Emson), whatever they decided to do was right and they could do it. He then says that Mr. Emson wrote the $600 mortgage in his office, and that Mr. Jones “accepted” it in his (Merritt’s) presence for the purpose mentioned. It appears that Captain Merritt told Mrs. Wilbur several years ago' that he could not recollect the figures for which the property was sold, hut he said in explanation that since that time his attention had been called to the whole matter and he had gone over and examined letters that he wrote to Mr. Jones and that the whole thing had come back to him.
    The entire premises, real and personal, which figured in the .transaction were a lot with a dwelling-house and drug store thereon erected, and the stock in trade in the store. They were owned by a man named Compton who conveyed them to a man named Butterworth to secure a debt of $900. Butterworth offered the entire premises to the defendant Jones for $3,800. Compton also owed Emson $900, and he (Emson) learning of the offer Butterworth had made to Jones, got Butterworth, with Compton’s consent, to convey the property to him (Em-son), he paying Butterworth’s claim. On the clay he (Emson) and Butterworth settled, Emson told him that he (Emson) had offered the property to Jones for $3,800.
    .We come now to a piece of evidence' of great cogency. It is a note written by Senator Emson to Mr. Jones, December 31st, 1894, about a month after the transaction had been consummated, in which Emson asks Jones to send him a note for $1,-200 (the $1,200 secured by the chattel mortgage), and says that be (Jones) can send him (Emson) a check for interest and discount or add it to the note, remarking that lie (Jone«) would owe him (Emson) interest since the day lie was at Mount Holly—that is, the day the transaction was closed and the papers exchanged. After his signature and at the bottom of the note, in his own handwriting, Senator Emson adds this statement by way of postscript, “the $1,200 is what is due me as you will recollect.” Senator Emson was a careful man, a man of considerable business acumen. Tie drew his own conveyances, and was a man of affairs. One month after this transaction he wrote to Jones about'it, and, in my judgment, if Jones owed him the $600 mortgage at that time he would have informed him that $1,800 was due him, and not $1,200, as stated in the communication. This declaration of Senator Em-son, in his own handwriting, practically contemporaneous with the transaction, when considered in connection with all the other evidence in the case, to my mind points unerringly and conclusively to the fact that the $600 mortgage on the real estate was given and taken as additional security for tire payment of the $1,200 secured by the chattel mortgage on the fixtures and stock in trade in the drug store.
    On the law of the case much that is apposite is to be found in O’Brien v. Paterson Brewing and Malting Co., 69 N. J. Eq. (3 Robb.) 117, in which Vice-Chancellor Pitney said (at p. 127) :

    “Against any relief is urged tire time-honored rule that parol evidence cannot be used to vary or contradict the terms of a written contract.
    “Without stopping at this moment to enumerate and classify the numerous exceptions to that rule, especially in a court of equity, it is sufficient to say that the evidence here relied upon does not tend to vary the terms of the contract. There is no contention that the complainant did not understand that lie was-signing an absolute promissory note in favor of the defendant,, payable one dáy after date, and negotiable in its terms. What he does contend is, that it never had any binding effect upon him in equity.
    “To show this by parol is no more a breach of the rule invoked than it is to prove that an absolute deed is given as a mortgage, or that a promissory note is given by the maker to-the payee without consideration and as an accommodation, to-the latter, or that it was given for a consideration that hacl wholly failed, or was a mere gift, as in Metler v. Metler, 18 N. J. Eq. (3 C. E. Gr.) 270, and affirmed on appeal, 19 N. J. Eq. (4 C. E. Gr.) 457.”

    The defendant in the case at bar is not attempting by parol evidence to vary the terms of a written instrument, but is asserting a parol agreement made at tire time the conveyances-were executed, showing that the mortgage sought to be foreclosed, although absolute in terms, was given as additional or collateral security for the payment of the chattel mortgage. And in this I think he has abundantly succeeded on the evidence. Another thing, the defendant sets up and proves that- he has paid the chattel mortgage, and avers that there is nothing whatever due from him to the complainant on account of the mortgage sought to be foreclosed in this cause. This amounts to a defence of payment, and, upon familiar principles, the defendant is entitled' to show that he has paid a mortgage sought to be enforced against him. Upon the question of payment, the evidence concerning the reason for the giving of the real esate mortgage, and the subsequent payment of the chattel mortgage (which, under the defendant’s contention, operates as payment of the real estate mortgage), is receivable.
    A mortgage has a dual character—first, it is a covenant to pay a sum of money upon an expressed consideration, and second, it is a conveyance of land to secure the debt. The first is-an executory contract, and the second an executed conveyance with a defeasance, and liable to be defeated if at the time it is sought to be enforced there is nothing due upon the executory contract it was given to secure. See Perkins v. Trinity Realty Co., 69 N. J. Eq. (3 Robb.) 723, 727; affirmed S. C., 71 N. J. Eq. (1 Buch.) 304.

    Upon this whole matter I have no- doubt at all but that the real estate mortgage for $600 was given as collateral security for the payment of the $1,200 chattel mortgage, and that, the latter being paid, the former must he canceled.
    There will be a decree for the defendant denying the relief sought by the complainant, and ordering the $600 mortgage to be surrendered and delivered up for cancellation, but without costs as against the complainant. The reason for this is that the defendant was indifferent enough to make a mortgage absolute on its face, when intended only for collateral security and he could have protected himself by insisting upon a proper recital in it. Not having done so, and the mortgage coming to the executrix of the mortgagee after his death, who, the executrix, knowing nothing about the original transaction, was justified in filing a bill to foreclose the mortgage, and should not be subjected to the payment of costs as the mortgagor succeeds only upon an affirmative defence.

      Mr. Samuel A. Afíeinson, for the respondent.

      Mr. Aaron V. Dawes, for the appellant.
   Per Curiam.

The decree appealed from will be affirmed, for tire reasons stated in the opinion filed in the court .below by Vice-Chancellor Walker, but without costs.

For affirmance—The Chiee-Justice, Garrison, Swayze, Trenohard, Bergen, Voorhees, Minturn, Kalisch, Bogert, Vredenburgh, White, Treacy—12.

For reversal—None.


text:
    In the matter of the probate of the last will and testament of George F. Johnson, deceased.
    [Argued June 26th, 1912.
    Decided November 18th, 1912.]
    No. 78. Appeal of Nate Cabaniss from decree of prerogative court.
    No. 79. Appeal of Mary J. Winfield and others from same decree.
    These are two appeals from a decree of the prerogative court advised by Vice-Chancellor Walker, affirming a decree of the Union county orphans court, admitting to probate the last will and testament of George P. Johnson, deceased. The reasons which led the orphans court to admit the will to probate are set forth 'in the following opinion of

      Atwater, Probate Judge:
    “George E. Johnson died at Mountainside, Union county, New Jersey, June 1st, 1910, in the seventy-eighth year of his age. He was a widower, without children, and had lived at Mountainside on a farm since the year 1905. He called his farm ‘Place Tilla Johnson.’ There was a dwelling-house oxr the farm which he occupied aloxie since the death of his wife in 1907: his attendants being a Fx’enchman named Henri and his wife. Mr. Johnson had a forexnan, or managei’, for the farm, naxned Stewart M. Hazlett, who lived with his wife in a sxnall ■dwellixxg on the premises. Hazlett had occupied the position since November, 1909, succeeding soxne other foreman.
    “Mrs. A. Josephine Sxxxith; a cousin of Mr. Johnsoxx’s wife, fx*eqxxently visited the home of Mr. Johnson. She testified that she had known Mr. Johnson sixxce she was; seven years of age. hut that she did not visit at Mountainside until after Mrs. ■Johnson’s death, owixxg to her occupation and absexxce from the country, and that she was there infrequently until Mr. Johnson’s illness, which began ixi September, 1909, and then she devoted •as much tixne as she could possibly give him. Her visits were generally made on Wednesday and Saturday, she spending Wednesday night and Saturday and Sunday there.
    “Lettex'S wex*e produced, written in 1904, 1905 and 1906, from Mr. Johnson’s wife to Mrs. Smith, showing that their relations were of the friendliest kind. Letters were also produced from Mr. - Johnson to Mrs. Smith, which show that their relations were also friendly, the latest hearing date September 16th, 1909.
    “Mr. Johnson had spent the greater part of his business life in New York City, where he was engaged in the produce commissioxx business, and dxxring the last twenty-five or thirty years •of his life he was a general agent of the Equitable Life Assurance Society.
    “Mr., Johnson’s relatives living at the time of his decease were his sister, Jennie, wife of Judge Morris Winfield, a-lawyer, practicing in Logamsport, Indiana; a brother and nephews and nieces. ’ I think the weight of the evidence is that Mr. Johnson had no special affection for these relatives. lie was hospitable and was frequently visited by his neighbors.
    “A paper (or rather four sheets of paper not fastened together), purporting to be his last will and. testament, bearing date December 23d, 1909, was produced in the surrogate’s office .by Mrs. A. Josephine Smith, the executrix named therein.
    "Caveats have been filed by Mr. Johnson’s sister, Mrs. Jennie Winfield, wife of Judge Morris Winfield, and heirs and next of kin.
    “Mr. Johnson was taken ill in September, 1909, and- from that time on was confined to his house. He suffered from a . complication of diseases which affected his breathing to such an extent that he was obliged to remain in a sitting posture and •could not lie down to sleep. His feet and legs became swollen and locomotion was very difficult for him. At the time of executing the document in question he was confined to the second floor of his house and hardly able to move from one room to another.
    “It appears from the admission of counsel that the estate is valued at about $75,000, subject to a deduction of $10,000 for indebtedness.

      “Execution of the Will.—The evidence seems to be decisive that the document was executed in Mr. Johnson’s bedroom between nine and ten a. m. on December 23d, 1909. This is the ■ date written on the will in Mr. Johnson’s handwriting. Stewart M. Hazlett, one of the witnesses to the will, says it was executed on Christmas day, December 25th, 1909. I think he is mistaken.
    "Dr. Wright, the other subscribing- witness, testifies that he •called on the morning of December 23d and that Mr. Johnson .asked him to witness his will. He further testifies that Mr. Johnson spoke of having a Mr. Badgley, a neighbor, as the other witness, but that Mr. Badgley was not available at the time. Then the doctor suggested that Mr. Hazlett, the foreman on the farm, be called, and that he was summoned. When Mr. Hazlett came into the room Dr. Wright testifies that he told him, in testator’s presence, that Mr. Johnson wished him to witness his will.

      “Mrs. Smith testifies, referring to Hazlett coming into the room of Mr. Johnson just before the will was signed:

      “‘Q. He hid him good'morning?
    “ ‘A. As I recall it,' it is as Mr. Hazlett came in in the room with a look of inquiry on his face, Mr. Johnson said to him, “I want you to •witness my signature to a paper.”

      “‘Q. Mr. Johnson said that?
    “ ‘A. Yes, sir.’
    “When the paper was executed there were present Mr. Johnson, Dr. Wright, Mr. Hazlett and Mrs. Smith.
    “Mrs. Smith -produced the four sheets and then Mr. Johnson signed the Jast one, the sheets being all together, hut not fastened. Dr. Wright testifies that Mr. Johnson signed the will and dated it. He 'wrote as follows:
    “ ‘George F. Johnson,
    Place Villa Johnson,
    Dee. 23rd, 1909.’
    “Dr. Wright also testifies that he and Hazlett were standing in front of or a.t the angle of testator’s table and that they both saw him sign it.
    . “I quote from Dr. Wright’s testimony as to what next occurred:
    “ ‘Q. You stepped forward, you said?
    “ ‘A. Yes, sir, X stepped forward as he lay back exhausted, after he had signed his name, and as I did so he gave me to understand that I was there to witness his signature.
    “ ‘Q. What did you say?
    “ ‘A. Then I took the pen, and in doing that I said, before signing my name to the paper, I said, to Mr. Johnson, “Mr. Johnson, you acknowledge this to be your last will and testament” and I said “I want to know what I am signing”—and he said “he did.”
    “ ‘By Mr. Voorhees.
    “ ‘Q. He said he did what?
    “ ‘A. Xle said, “I do.”
    “ ‘By Mr. Giihooiy.
    “ ‘Q. Was there anything said about the witness?
    “ ‘A. And then I said, “And this, I understand, I am witnessing and you acknowledge this to be your last will and testament, and I am to sign as a witness.”
    “ ‘Q. Was there anything said about Mr. Hazlett signing it?

      “ ‘A. No, nothing was said about Mr. Hazlett signing it, only I stepped back and handed the pen to Mr. I-Iazlett, or he took the pen, I don’t know which, and then Mr. Iiazlett signed his name to the paper as a witness.’
    “Iiazlett testifies that Mr. Smith produced the four sheets and that he saw Mr. Johnson sign one of them. I quote from Hazletfs testimony:
    “ ‘Q- After Mr. Johnson signed that paper, did not Dr. Wright say to Mr. Johnson, “Do you acknowledge this to be your last will and testament?”
    “ ‘A. He did, yes, sir.
    “ ‘Q. You heard Dr. Wright say that?
    “ ‘A. Yes, sir.
    “ ‘Q. And what did Mr. Johnson do then?
    “ ‘A. Mr. Johnson made no reply, but hung his head on his little table like that [illustrating].
    “ ‘Q. Didn’t he nod his head?
    “ ‘A. No, sir; he did not.

      “‘Q. Dr. Wright said Mr. Johnson replied “Yes, I do?”
    “ ‘A. No, sir; he never made any reply.
    “ ‘Q- You do not agree with Dr. Wright in that then?
    “ ‘A. No, sir, decidedly not.
    “ ‘Q. And Dr. Wright says that Mr. Johnson said “I ask you to be my witnesses?”
    “'A. No, sir.
    “ ‘Q. You didn’t hear him say that?
    “ 'A. No, sir.
    “ ‘Q- After Mr. Johnson signed, who signed next?
    “ ‘A. Dr. Wright.
    “ ‘Q. Did you see Dr. Wright sign?
    “ ‘A. Yes, sir.
    “ ‘Q. After he signed, who signed next?
    “ ‘A. I signed.
    “ ‘Q. And you signed in the presence of Dr. Wright and Mr. Johnson, didn’t you?
    “ ‘A. Yes, sir.’
    “•The counsel for the caveators admitted on tire argument that the paper-writings offered as the last will of George E. Johnson has been executed and published in accordance with law. After the witnesses for the proponents had given their testimony on that phase of the case I permitted the said paper-writings to be offered in evidence. A further consideration of the evidence confirms my opinion that the document was duly executed in conformity with the provisions of the New Jerse}'' statute relating to wills. The only testimony which militates against this conclusion is that of Iiazlett. I am satisfied that when he came into. Mr. Johnson’s room on the morning of the execution of the will, he was informed either by Dr. Wright, or Mr. Johnson, the testator, that he was wanted to witness a paper; that the execution of the will was forthwith proceeded with; that sufficient publication was made in his presence and hearing, and that he saw testator sign and also Dr. Wright, and that he, Hazlett, immediately signed in their presence. See Ayres v. Ayres, J-3 N. J. Eq. (16 8Lev;.) 565, 571, 57£, and cases cited. It will be seen from the testimony that Hazlett immediately took a position antagonistic to the will—that is, he forthwith expressed the opinion that it was not a, valid document.

      “Document in Four Sheets.—As this document consists of four sheets, which were not fastened together and only one of which was signed by the testator, a question arose as to whether these four sheets were in fact before the testator and constituted the document which he published as his will. As the four sheets offered in evidence are in the handwriting of Mrs. A. Josephine Smith, she became a very important witness on the subject, and she was examined and cross-examined at length. She testifies that they are the same four sheets of paper, and it is to be said that there is no evidence to the contrary.
    “Joseph M. Wright, one of the subscribing witnesses, is quite positive that the papers are the same which he witnessed. He did not read them.
    “Stewart M. Hazlett, the other subscribing witness, says there were four sheets. When asked whether the sheets offered were the same sheets he saw that day he said, U can only vouch for the one, that is the one I signed.’ He sa3rs he didn’t see the writing.
    “After hearing the witnesses I was satisfied as to the identity ot the papers.
    “The contents of the papers sustained this conclusion. The evidence shows that Mr. Johnson had long had in mind to erect a hospital in Logansport, Indiana, in memory of his parents. This was his birthplace and the place where the early part of his life was spent. The will is crudely drawn, but the purport of it is that the bulk of his property shall go to the establishment of a hospital in Logansport in memory of his parents.
    “A paper was offered in evidence which the testimony shows was in the handwriting of Mr. Johnson. It was written with lead pencil. It was found among his papers. It was an incomplete draft of a will, in which he is named as testator. This paper contains a provision for the erection of a hospital in Logansport and deals with the subject in much the same way as the will in question. It also contains a provision for the benefit of Mrs. George W. Miles similar to that of the will in question.
    “There is also a provision for an annuity for Mrs. George W. Miles, a sister of his wife, who was in destitute circumstances. Mr. Johnson had for a number of years prior to his death contributed $33 per month to her support.
    “Abner T. Bowen is one of the executors named. From Mr. Bowen’s testimony it appears that Mr. Johnson had asked him to be his executor some five or six years before. They had been acquainted since 1892 and their relations appear to have been of a very friendly nature.
    “It will be seen therefore that in the respects named, viz., hospital, Mrs. Miles, Bowen, as executor, the will is consistent with previously expressed views of the testator.
    ' “Mrs. Smith is made executrix of the will. This clause is not on the signed sheet, but on this sheet reference is made to ‘the executor and executrix.’
    “The jewelry, clothing and other personal effects of testator’s wife, who died in 1907, are given to Mrs. Smith. Testator also gives to her such part of his furniture and personal effects ‘as she may wish to retain.’
    “A reference is made in the will to some indebtedness of ‘The Mrs. Smith Go.,’ which is the name under which Mrs. Smith was doing business in Mew York. The amount of the indebtedness is seven or eight hundred dollars. The reference to this indebtedness does not discharge it, but appears to have the effect of allowing some extension of time in payment.
    “An examination of the document, and a consideration of its contents, in the light of testator’s previously expressed views and purposes seem to me to make the supposition that any change had been made in it after its execution or any sheet or sheets substituted incredible.
    "'My conclusion in regard to this part of the case can be expressed in the language of the court in the case of Ela v. Edwards, 82 Mass. (16 Gray) 91, as follows:
    Un the present case the different papers are obviously connected in their provisions, and are sufficiently shown to have composed a connected series and the same that are shown to have been attested by the witnesses/
    “It was not contended that a will might not be lawfully executed, although written on detached pieces of paper, but it was contended that a document so composed affords opportunities for fraud, and the evidence should be very carefully considered and great caution exercised before admitting such a document to probate. This proposition is indisputable. There is nothing in the law of New Jersey requiring each sheet to be signed, however wise a precaution it might be.
    “In Schouler Wills (3d ed.) § 284, the author says:
    “ ‘A will may, of course, be written on several sheets of paper incorporated together in sense as one instrument. And, unless the local statute provides differently, the will is well signed and attested on the last sheet alone, provided the execution was bona, fide and meant to cover the whole.’

      “Mental Capacity.—It is claimed by caveators that testator had not sufficient mental capacity to make a will, at the time of the execution of the document in question.
    “He was in very feeble health at the time, suffering from very serious physical infirmities, the results of disease.
    “Mr. Johnson had been an active business man up to the time of his last illness. lie was a man of unusual mental vigor and force, of character. It is claimed, however, that his faculties had failed to such an extent that he was disqualified on that 'account from executing a will.
    “The witnesses produced on this point are Judge Winfield, the Hazletts, Miss May E. Lewis, who was stenographer for the testator the last two years of his life, and Mr. Zopher D. Hawkins.

      “Judge Winfield is the husband of the sister of Mr. Johnson, a lawyer by profession and at one time a judge in the State of Indiana, and a man. of ability and discrimination. He expresses the opinion that Mr. Johnson was incompetent to malee a will. He had not seen Mr. Johnson since 1906. He made a visit to him in January, 1.910. He refers to the physical condition of Mr. Johnson; to the change in his mode of dress, he having formerly been a man fastidious in this respect, and at the time he saw him he was quite the reverse. He also refers to certain statements made by Mr. Johnson in regard to the value of his farm; in regard to the prospects of realizing from the peach crop; in regard to the prospects of the candy business in which Mr. Johnson had an interest and other matters going to show that Mr. Johnson had exaggerated ideas on this subject. I think, however, a careful reading of Judge Winfield’s testimony will show that in his conversation with Mr. Johnson, the latter manifested mental capacity; ability to reason and powers of memory. It seems to me that in these conversations Mr. Johnson showed ability to carry on conversations; to talk reasonably on the matters which formed the subject of the conversations. While it may well he said that he did not manage his business affairs with all the skill and care that he would have shown a few years previous, yet, nevertheless, he showed capacity to' understand Judge Winfield’s criticishis. According to the judge’s own testimony Mr. Johnson resented what he called prying into his affairs by Judge Winfield.
    “Judge Winfield testifies as to a conversation with Mr. John-, son on one of the judge’s visits in 1910. He testifies to the effect that he explained to Mr. Johnson why it would be inexpedient to erect a hospital in Logansport, Indiana, one reason being that he did not think the city of Logansport would take upon itself the burden of supporting the hospital. He further testifies that Mr. Johnson said, ‘J have given up the idea of the hospital.’ According to Judge Winfield’s testimony, Mr. Johnson comprehended the reasoning of Judge Winfield and adopted it. Erom Judge Winfield’s testimony it seems quite clear that Mr. Johnson understood Judge Winfield’s point of view in regard to the hospital and treated it as a man of intelligence naturally would.
    “I think the same may be said of the testimony of the Hazletts and Miss Lewis.
    “Zophew L. Hawkins had known Mi*. Johnson for twenty-nine years; was employed by him in 1881 and 1882 and had kept up his acquaintance. He testifies that in the summer of 1909 Mr. Johnson asked him to be his executor; but did not say anything about the nature of his will, or how he proposed to dispose of his estate.
    “He testifies that he saw Mr. Johnson in the early part of December, 1909. His description of Mr. Johnson’s physical condition corresponds with that of the other witnesses. He says, Tie [Mr. Johnson] was, I should say, in his dotage.’ T thought he was erratic in everything/ Mr. Hawkins testifies to being with Mr. Johnson some two hours and conversing with him on various subjects.
    “Alfred E. Pearsall, a man sixty-five years old, living at Mountainside, had been somewhat intimate with Mr. Johnson after the latter came to Mountainside. He saw him in the early part of 1910. He testifies in detail and gives strong testimony as to Mr. Johnson’s mental capacity.
    “To a like effect is the testimony of Mrs. Alfred E. Pearsall.
    “James A. Ruck, who resides at Mountainside, and who is connected with the Equitable Life Assurance Society, and who had known Mr. Johnson for about sixteen years, gives testimony « as to calling on Mr. Johnson at his home in Mountainside some few times. The last time be saw him was about a month prior to his death. He refers to conversations that he carried on with him then and testifies that he did nof notice any impairment of his faculties. He says he noticed difficulty of speaking. He thinks he saw him between Christmas and Hew Years, and testifies that he had conversation with him then, and -that he did not notice any impairment of his faculties.
    “Henry Hale, who lives at Orange, Hew Jersey, and who had known Mr. Johnson in connection with, the life insurance business, testifies to two interviews with Mr. Johnson; one visit was about Thanksgiving, 1909, and the other in February, 1910, and lie refers to conversations had with him on those occasions, and to his talking about different matters. He testifies that he could sustain a conversation.
    “Dr. Wright, his medical adviser, testifies that he saw Mr. Johnson every day from the latter part of September, 1909, until' the 15th or 16th of March, 1910. He is very positive as to Mr. Johnson’s mental capacity; that his mind was clear and that he did not show any lack of mental vigor up to the time of the making of the will.
    “Louis Bath, fifty-four years old, residing at 309 Seventh avenue, New York, testifies as to a conversation with Mr. Johnson before he died. He testifies as to his ability to keep up conversation and his understanding of the conversation. The conversation related to the sale of some property by Mr. Johnson to Mr. Bath. He testifies to seeing him in May just before he died, also the previous 4th of January, also on February 16th and 24th. "While he found Mr. Johnson in very bad condition physically, he found him able to discuss matters of business and did not observe any impairment of his mental faculties.
    “Paul Q. Oliver, thirty-seven years old and a counselor-at-law of this state, residing at Westfield, New Jersey, testifies that he saw him in his last illness and had a little business matter for him. He saw Mr. Johnson in the winter of 1910. He fixes it as after the time of Mr. Pearsall’s return from Florida. He observed him particularly with reference to his capacity for making a will and he testifies that he certainly would have' felt warranted in making a will for him if he had been asked to do so. The evidence shows that Mr. Pearsall returned from Florida after the opening of the year 1910.
    “Edward J. West, age thirty-five, residing in Long Island, a counselor-at-law, became acquainted with Mr. Johnson in May or June, 190?, and acted as counsel for Mr. Johnson. He testified that in the fall of 190?, or early in 1908, he talked with Mr. Johnson about his will, and Mr. Johnson then stated he wanted to leave all his property to establish a hospital in Logansport, Indiana. Mr. West had frequent interviews with Mr. Johnson. He saw Mr. Johnson in September, 1909, after he was taken sick. Mr. West testifies that he wanted to talk over his will .and plans for tlie hospital with him and Mrs. Smith, and that he wanted Mrs. Smith to have the furniture or whatever there was in the house, and he wanted her to have Mrs. J ohnson’s personal effects. He testifies to an interview October 10th, in which the subject of the candy factory was discussed. He testifies to seeing him December 8th, when the subject of tire claim of a Dr. Godson was discussed. He also saw him on February 13th, 1810, and discussed certain matters of business with him. tie testifies as follows:
    “‘Q. What was Mr. Johnson’s condition on the.visit of February?
    “ ‘A. He seemed perfectly clear, I think, if anything, a little better than he had been when I saw him in December; he seemed quite vigorous and took hold of things, and I was a little surprised at the way he kept up with things. He told me about his plans for the farm.’
    “Mr. West in his visits to Mr. Johnson during the time of the latter’s illness discussed business matters with him and matters of business were decided upon.
    “'My conclusion is that under the rules laid down in this state, Mr. Johnson at the time he executed the paper in question had sufficient capacity to make a will.

      “In re Carter’s Will, 51 All. Rep. 65, it appeared that the testatrix was about eighty-one years of age, and from an injury to her hip, was somewhat of an invalid and was unable to read or write; it was, however, shown that she was thoroughly conversant with her own. affairs and with the kind and value of her property, and with a full knowledge of the number and degree of kinship of her relations, and it was held that she had mental capacity to make a will.
    “In the case of Bennett v. Bennett, 50 N. J. Eq. (5 Dick.) 446, it is said that—
    “Hf.he [the testator] is capable of recollecting of what his property consists, and who, either in consequence of ties of blood or friendship, shoitld be the objects of his bounty, and has a mind sufficiently sound to enable him to know and to understand what disposition he wants made of his property after his death, he is competent to make a valid will.’

      “In my opinion, Mr. J ohnson was competent within the meaning of the definition given in the Bennett Gase. The presumption of the law is.in favor of capacity and the burden of proof is upon those who assert to the contrary. See McCoon v. Allen, 45 N. J. Eq. (18 Stew.) 708, 719; Elkinton v. Brick, 44 N. J. Eq. (17 Stew.) 154, 158. 1 think in this case the caveators have not showed a lack of capacity in Mr. Johnson.

      “Undue Influence.—It is quite plain from a study of the testimony that if any undue influence was exercised upon Mr. Johnson, which resulted in the execution of the document in question, that such influence was brought to bear by Mrs. A. Josephine Smith. I have already referred to the acquaintance and relations which existed betunen Mrs. Smith and Mr. Johnson. These relations appear to have been of a most friendly nature. Her visits to him were largely after the time that he was taken ill, although her acquaintance with him and lvis wife, prior to the wife’s death, appear to have been rather intimate. It can properly be said' that Mr. Johnson liked Mrs. Smith, and it -was agreeable to him to have her at his house, and that he trusted he?' with the performance of various services for him1 in connection with his business, and he had loaned her money in connection with her business. It is plain that she wanted him to make a will and she gives the reason for it that she wanted him to provide for Mrs. Miles, a cousin of his wife, who- was in destitute circumstances and to whose support he had been contributing for a number of years.
    “In Bennett v. Bennett, already referred to, it was said:

      “1No matter if the will is drawn by the principal or even sole legatee, if it is made by a testator possessing adequate capacity, and it is shown. that he knew its contents when he published it, and it appears to have been executed in the manner prescribed by the statute, the court must, in obedience to the law of the land, uphold it as the will of the testator and admit it to probate, unless satisfactory evidence is produced showing that it is the product of fraud.’
    “'Here, again, it is necessary for the party alleging undue influence to prove it. See Dumont v. Dumont, 46 N. J. Eq. (1

      Dick.) 223, 230; also Schuchardt v. Schuchardt, 62 N. J. Eq. (17 Dick.) 710, 713.

    “In the case of Haydock v. Haydock, 33 N. J. Eq. (6 Stew.) 494, 496, Vice-Chancellor Van Fleet said:
    “ ‘The extent or the degree of influence is quite immaterial, for the test always is, was the influence, whether slight or powerful, sufficient to destroy free agencjq so that the act put in judgment was the result of the domination of the mind of-another rather than the expression of the will and mind of the actor.'
    “Now, as to the contents of the will, it appears clearly that Mr. Johnson had already exjuessed the purpose of establishing a hospital in Logansport. I think it also quite clearly appears that he had indicated the purpose of providing for Mrs. Miles. The provision for her is no greater than, the amount he had been contributing for her support during his lifetime. As to the provision for Mrs, Smith, it appeal’s from'the testimony of Mr. West that he had indicated to him his desire that she should have as much of his furniture as she wanted, and that she should have his wife's clothing and other personal effects. There is nothing unreasonable in his making the provision in regard to Mrs. Smith's indebtedness so that its immediate collection might not be enforced. Mr. Bowen testifies that he had asked Mm to be án executor. Mrs. Smith is also named as executrix. So far as this feature of the will is concerned, I do not recall any testimony going to show that Mr. Johnson had spoken to anyone of his purpose to appoint Mrs. Smith an executrix. It does not seem to me that Mr. Johnson in making this will was dominated by- Mrs. Smith. I think that a man of the mental force that he is shown to have had would not have been dominated by anyone, and the circumstances do not show that at the time he made the will he was. under any sort of duress. It is quite probable, and I think it is a fact, that he regarded the will as a temporary arrangement., and that he intended when he recovered his health, as he seemed to have been strongly of the opinion that he would, then to have another will drawn by a lawyer.
    “Tn the Schucliardt Case, above referred to, it was said:
    “ ‘It must be made to appear, either expressly or by justifiable and fair inference from circumstances proved, that such influence was, in fact, exerted, and that it was so exerted as to dominate and control the will of testator' and' coerce him to make a testamentary disposition of his property which he would not otherwise have made.’
    “It seems to me that no such condition existed in the case under consideration and that there was no domination of the will of Mr. Johnson by Mrs. Smith.
    ■ “A decree will be entered admitting to probate the paper offered as the last will of George E. Johnson.”

      Messrs. McDermott Enright and Mr. Benjamin E. IfOng (of the Indiana bar), for the appellants. •

      Mr. Patrick II. Gilhooly, • Mr. Richard Boardman and Mr. Edward J. West (of the New York bar), for the respondents.
   Per Curiam.

The decree of the prerogative court will be affirmed, for the reasons stated in the foregoing opinion delivered in the orphans court. The respondent’s costs in this court shall be paid by the appellants.

No. 78—

For affirmance—The Chief-Justice, Garrison, Swayze, Trenchard, Bergen, Voorhees, Minturn, Kalisoh, Bogert, Vredeneurgh, Congdon, Treaoy—12.

For reversal—None.

No. 79—

For affirmance—The Chief-Justice, Garrison, Swayze, Trenghard, Bergen, Voori-iebs, Minturn, Kaltsch, Bogert, Vredeneurgh, Congdon, Treaoy—12.

For reversal—None.


text:
    Alonzo Cotton, respondent, v. Lewis M. Cresse, appellant.
    [Argued June 28th, 1912.
    Decided November 18th, 1912.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Walker, who delivered the following opinion:
    In February, 1901, the complainant entered into a written agreement with Gainer P. Moore, as follows:
    “This agreement made this fourteenth day of February, A. D. 1901, between Alonzo Cotton of Ocean City, County of Cape May state of New Jersey, of the first part, and Gainer P. Moore, of the same City, County and State, of the second part, is as follows, to wit: That we, the parties of the first part and second part, owning properties adjoining each other on the east side of Asbury Avenue below 8th Street, being lots Nos. 438 and 440 enter into a mutual agreement that the said party of the first part may build up to the party line fifty feet of the distance from the property line on Asbury Avenue, and that the said party of the second part may build up to the party line fifty feet from the property line of the street back, that is to say, that each party can use the line one half the distance from street to street which is one hundred feet, provided, he let no part of the building hang over the line ; and it is further agreed that if either party desires to erect a building-extending more than fifty feet from the property line on either street, he shall not build it nearer the party line than three feet.
    “For the true and faithful performance of all which, we set our hands and seals the day and year aforementioned.”
    The defendants subsequently acquired title to lot No. 438 with actual notice of the agreement. The complainant long ago built upon his lot and conformed to the lines specified in the covenant. The defendants have commenced to build on their lot in disregard of the agreement and propose to build on the division line where the complainant’s building runs to that line, and thus shut off the light and air which the complainant enjoys through ap- ' pertures in his building.

      On. behalf of the defendants it is insisted that the covenant in question does not run with the land nor create an easement but is purely personal, and, therefore, is not enforceable. Reliance is largely based upon the case of People v. Railroad, 57 Ill. 436. That was a case in which the defendant agreed with the owner of an elevator to run a track into it for the delivery of grain. The track subsequently was disused and a portion of it removed. Later, lessees of the premises sought by mandamus to compel the restoration and use of the track. Belief was denied on the ground that the agreement was entirely personal between the original parties to it. Gostigan v. Pennsylvania Railroad Go., 54 N. J. Law {25 Vr.) 238, is also relied on by the defendants’ counsel. In that case the supreme court refused to give effect to a covenant which was not a grant of an easement nor of a right in the nature of an easement and was one that did not run with the land.
    These two cases of People v. Railroad and Gostigan v. Pennsylvania Railroad Co. are cases at law, and, admittedly, courts of law will not. enforce covenants of the kind there under review.
    However, a different rule prevails in equity, and it will be enforced in appropriate cases. Brewer v. Marshall, 19 N. J. Eq. (4 C. E. Gr.) 537. In this case Chief-Justice Beasle3q speaking for the court of errors and appeals, said (at p. 544)

    “Hor is this doctrine without illustration in our own courts. It was enforced in the case, of Van Doren v. Robinson, 16 N. J. Eq. (1 C. E. Gr.) 256. This was a suit founded on a covenant in a conveyance, whereby the grantee agreed to reconvey to the grantor whenever he, the grantee, should quit the actual possession of the premises. The grantee conveyed to a stranger, who took the title with constructive notice of the covenant. Chancellor Green maintained that this was a mere personal covenant ; that it neither ran with the lands nor bound the 'alienee in equity, but that it would be enforced against such alienee in equity when he was chargeable with notice of the original contract. And in Holsman v. Boiling Spring Bleach Co., 14 N. J. Eq. (1 McCart.) 347, the.same accurate jurist maintained the right of equity to exert its authority in proper cases to prevent injustice, without any dependency on the merely legal rights of the parties. And I think it is also manifest from the case of Rogers v. Danforth, 9 N. J. Eq. (1 Stock.) 294, that Chancellor Williamson was of the same mind on this subject, for he remarked with reference to a covenant touching lands that he does not think that it follows that because a suit at law cannot be maintained, a court of chancery may not protect the rights of the parties under it.
    “Erom this review’ of the authorities I am entirely satisfied that a court of equity will sometimes impose the burden of a covenant relating to lands on the alienee of such lands, on a qorinciple altogether aside from the existence of an easement or the capacity of such covenant to adhere to the title. So far, I think, the law is not in doubt, and the only question in this ease which I have regarded as possessed of any material difficulty, is whether the covenant now in controversy is embraced within the proper limits of this branch of equitable jurisdiction.”
    The covenant under consideration in the case at bar was intended by the parties to it, as I read it, to be effectual and binding by way of building restriction upon their adjoining premises, and upon their successors in. title. Eor years it was so acted upon. True, it could not bind the alienees of either party without notice of its existence, but as actual notice is present in this case, I think the agreement enforceable under the doctrine of Brewer v. Marshall, supra.

    Quite apposite is the case of Whatman v. Gibson, 9 Sim. 196, observed upon by Chief-Justice Beasley in Brewer v. Marshall (at p. 543). There, as here, the restrictions did not exist in a deed which formed a link in the chain of title, but resided in a deed made between oiie time owners of different lots, and the restrictive covenant was enforced against a purchaser with notice who had not executed the covenant but derived title under a purchaser who had; and as said by Chief-Justice Beasley at the same page (543) :
    “'These decisions proceed-upon the principle of preventing a party having knowledge of the just rights of another, from defeating such rights, and not upon the idea that the engagements enforced create easements or - are of a nature to run with the land.”

      This view leads to the making absolute of the- order to show cause, and a preliminary injunction will be issued. Let the costs abide the event.

      Messrs. Bourgeois & Coulomb, for the appellants.

      Messrs. Bleakly £ Blackwell, lor the respondents.
   Per Curiam.

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

For affirmance—The Chief-Justice, Garrison, Swayze, Trenohard, .Bergen, Voorhees, Minturn, Bogert, Vreden-BURGI-r, CONGDON, WlIlTE, TREACY—12.

For reversal—Yone.


text:
    Gertrude Adams, appellant, v. The Village of South Orange, respondent.
    [Submitted July 8th, 1912.
    Decided November 18th, 1912.]
    On appeal from a decree of the former chancellor advised by Vice-Chancellor Emery.

      Mr. Andrew 8. Taylor and Mr. Charles IF. Souther (of the Yew York bar), for the appellant.

      Mr. Jay Ten Eyck, for the respondent.
   Per Curiam.

The bill in this ease was one to quiet title. The snit arose in this wise: The board of assessments of the village of South Orange levied certain assessments for benefits against the lands of the complainant for the laying out and opening of West End road in that village, and the municipality, claiming the assessment to he a valid and subsisting lien against the premises because of the unpaid assessments, advertised the same for sale. The complainant then filed her bill praying inter alia that it be decreed that the defendant had no encumbrance on her land or anjr part thereof and that its claim thereto is vexations and void, and for an injunction against the sale of the premises for non-payment of the assessment.

The complainant alleges that tire mode of assessment is not in conformity with constitutional requirements, and that, therefore, the assessments were void from their inception. The assessments appear to have been regularly made under section 20 of the village charter, which provides as follows:

"That it shall be the duty of the board of assessments to assess, as fairly, honestly' and impartially as may be, damages, in favor of the owner or owners of any lands and real estate that shall be taken for, or damaged by, any general or local improvement hereinafter mentioned; and to assess the said damages or the expenses of any such improvement, as the case may be, fairly, honestly and impartially upon the owner or owners of any lands or real estate on or within five hundred feet of the line of the whole of the streets so improved, which in the opinion of said commissioners, or any three of them, will be peculiarly benefited thereby, and in such proportions as they may consider said lands and real estate to be so benefited, and to the extent of such benefit, and to assess any excess of such damages, or expense, as the case may be, upon the village at large.-’

At the conclusion of the case the learned vice-chancellor delivered the following oral opinion:

“The only question is whether the fact that beyond tire amount levied on property specially benefited within five hundred feet the assessment is laid-on the township or village at large, and that the special benefits which may accrue to lands outside of the five hundred feet are not specially assessed against them, is any ground for holding the law or rule of assessment unconstitutional as to tlie lots within the five hundred feet. That involves the question whether a legislative limitation of the area of the assessment of the expense of an improvement, which provides that the special assessment- for benefits shall only include a portion of the lands which are or may be benefited, makes the assessment invalid. The contrary view must, of course, be based on the contention that the legislature has no option in' reference to declaring that all the lands specially benefited, whether within a limited space or not, must be assessed in order to make a valid assessment. That question has been up twice, as I understand it, before the law courts. Eirst, in the ease of State, Society for Useful Manufactures, prosecutors, v. Paterson (1880), 42 N. J. Law (13 Vr.) 615. The court of errors and appeals held in that case that the area of an assessment might be restricted; and in the case of State, Hudson County, v. Road Commissioners, 41 N. J. Law (12 Vr.) 83, 88, the supreme court, in a learned opinion by Mr. Justice Depue, held that the legislature has the power to limit the area of the assessment, and that no person within that area could object, provided he was not assessed more than he was specially benefited. That opinion was affirmed in the court of errors and appeals in 42 N. J. Law (13 Vr.) 608. So that as the decisions of the supreme court and court of errors and appeals now stand on this question—that lies at the basis of this case—I do not see that there is any such claim of unconstitutionality as would allow a court of equity, on a bill to quiet title, to say -that the holding of that assessment as an outstanding lien is such a patently fraudulent claim of title that a court of equity will wipe it out. That is the ground on which the original jurisdiction of the court is put in Bogert v. City of Elizabeth, 27 N. J. Eq. (12 C. E. Gr.) 568, where the principle of assessment had been so decidedly wrong that it was an absolute unfounded assertion of title for a municipality to claim rights under it. In that case the entire expense was laid on the lands benefited without limitation to the amount they were benefited, and under our decisions it was clearly unconstitutional. And the court said: Tf the city asserts title under a void assessment, cither by proceeding to sell, as is done in this case, or by selling and then holding the title, a court of equity will decree that the claim is so absolutely unfounded that the title should be quieted.’ But in view of these decisions I have referred to, one of which was cited in defendant’s brief, I cannot say that the village of South Orange is so clearly asserting an unfounded claim under these assessments that they should be set aside.

“I have considered the further question raised as to the uneonstitutionality of the twentieth section of the defendant’s charter, by reason of the direction for assessment of benefits upon the owner or owners of lands benefited, instead of directing the assessment upon the lands themselves. No injunction -against the proceedings to collect the assessment or sale of the lands should be granted on this objection.

“The assessment is not by the act made a personal debt of the -owner, and the whole scope of tire act shows that the assessment is made upon the lands and not on the owner. See especially sections 36, 45 and 46, referring to the lands’ upon which assessments have been made or are liens.

“The language used in reference to the .owner of lands is ■similar to that generally used in tax and assessment acts, and the name of the owner of the lands taxed or assessed is given as part ■of the designation of the lands assessed. In many of such acts it is provided that a mistake in the name of the owner shall not invalidate the tax or assessment. Section 45 of the village charter contains such provision.”

The decree under review will he affirmed, with costs, for the reasons set forth in Vice-Chancellor Emery’s opinion.

For affirmance—The Chancellor, Chiee-Justice, Garrison, Swayze, Trenohard, Bergen, Voorhbes, Minturn, Kalisch, Bogert, Vredbnburgi-i, Congdon, White, Treacy —14.

For reversal—None.


author: Per Curjam:.

text:
    Thomas E. Flostroy, complainant-respondent, v. William B. Corby Coal Company, defendants-appellants.
    [Submitted July 8th, 1912.
    Decided November 18th, 1912.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, who filed the following opinion:
    This is in effect a contest between the complainant, Elostroy, who holds certain stock of the William B. Corby Coal Company by assignment from one Girvan, and a judgment creditor of Girvan, who claims title to the stock by sale under execution.
    Four hundred and thirty shares of this stock were transferred by Girvan to Elostroy on March 21st, 1911, but the assignee did not give notice and did not request a transfer on the company’s books until July 6th, 1911. In the meanwhile, on May 3d, 1911, Johnson, the execution creditor, who is also president of the coal company obtained a judgment in the district court against Girvan for $520.50, and sold Girvan’s interest in the stock, under docketed judgment and execution on May 16th, 1911. On May 17th there was issued tó him on the company’s books a certificate •for four hundred and thirty-one shares, the entire amount that had been held by Girvan.
    The weight of the evidence is that Elostroy was a creditor of Girvan, and that on March 21st, 1911, the stock certificate was actually transferred to him, in blank, in satisfaction of his debt.
    There is no doubt but that Johnson was also a creditor. Neither parted with anything of value at the time of obtaining title to the stock. Elostroy’s transfer was prior in time, but he gave no notice until after Johnson had, under the execution sale, obtained from the company a transfer on its books. The question which, under these circumstances, has the better title, has been directly adjudicated by Vice-Chancellor Pitney in Board of Edu

      cation v. Duparquet, 50 N. J. Eq. (5 Dick.) 2347. He there held that notice was not necessary in order to give priority to the prior assigo.ee over a subsequent attaching creditor, and that as between the former and the latter, the former has the better title. There is a manifest distinction between such a creditor and one who, without notice, parts with value> on the strength of an assignment based on the apparent ownership of the assiguor, in cases where he has notified the debtor, and the first assignee has not. Cogan v. Conover Manufacturing Co., 69 N. J. Eq. (3 Robb.) 314; Jenkinson, Executor, v. New York Finance Co., 79 N. J. Eq. (9 Buch.) 247.

    Mr. Johnson, after acquiring title, took steps to dissolve the corporation. A meeting of the stockholders was called and it was, by more than a two-thirds majority, resolved to dissolve. If Johnson had not voted the stock he obtained on the execution sale the requisite majority would not have been secured. A temporary injunction restrained the filing with the secretary of state of the certificate of consent to dissolve. This injunction must be made permanent, so that Flostroy may have an opportunity of voting on the question of dissolution.

      Messrs. Wolber & Blake, for the complainant.

      Mr. Edwin A. Rayner, for the defendants.
   Per Curjam:.

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

For affirmance—The Chancellor, Chiee-Justice, Garrison, Swayze, Trenohard, Bergen, Yoori-iees, Minturn, Kalisci-i, Bogert, Vredenburgh, Congdon, White, Treaoy —14.

For reversal—None.


text:
    Charles Fritz, Jr., complainant-respondent, v. Marguaretha Fritz, defendant-appellant.
    [Submitted July 8th, 1912.
    Decided November 18th, 1912.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported ante p. 66.

      Mr. J. JUmil Walscheid, for the appellant.

      Messrs. Tennant c& Llcuighi, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion tiled in the court belowr by Vice-Chancellor Garrison.

For affirmance—The Chancellor, Chiee-Justice; Garrison, Swayzic, Trbnohard, Bergen, Voorhees, Minturn, . Kalisch, Bogert, Vredenburgh, Congdon, White—13.

For reversal—None.


text:
    James J. Leyden, complainant-respondent, v. Elijah W. Lawrence et ux., defendants-appellants.
    [Submitted July 8th, 1912.
    Decided November 18th, 1912.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 79 N. J. Bq. (9 Buck.) 113.

      Messrs. French & Bicharás, for the complainant.

      Mr. Austin H. Bivachhamer and Mr. John'Caiwalaáer, Jr. (of the Philadelphia bar), for the defendants.
   Per Curiam.

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

For affirmance—The Chancellor, Chiee-Justicb, Garrison, Swayze, Trenohard, Bergen, Voorhbes, Minturn, Kalisch, Bogert, Vredenburgh, Congdon, White, Treacy —14.

For reversal—None.


text:
    The Township of Franklin, respondent, v. Charles Trammell, appellant. The Township of Franklin, respondent, v. Samuel Lowder, appellant. The Township of Franklin, respondent, v. Thomas S. Downs, appellant.
    [Submitted July 8th, 1912.
    Decided November 18th, 1912.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning.

      Mr. Austin II. Swackliamer, for the appellant.

      Mr. Haney F. Garr, for the respondent.
   Per Curiam.

The pleadings in these three suits are essentially the same as those in No. 75, between Mathias E. Crane, appellant, and the same township, respondent (reported ante p. 509), and were argued together under written stipulations of counsel.

The orders overruling the demurrers in each case under review in above appeals should be reversed, for the reasons expressed in the opinion of this court filed at this term in the appeal of said Crane.

No. 72—

For affirmance—None.

For reversal—The Chancellor, Chief-Justice, Garrison, Swayze, Trenchard, Bergen, Voorhees, Minturn, Kalisch, Bogert, Veedenburgi-i, Congdon, White, Treaoy—14.

No. 73.

For affirmance—None.

For reversal—The Chancellor, Chief-Justice, Garrison, Swayze, Trenchard, Bergen, Voorhees, Minturn, Kalisch, Bogert, Vredenburgii, Congdon, White, Treacy—14.

No. 74.

For affirmance—None.

For reversal—The Chancellor, Chief-Justice, Garrison, Swayze, Trenchard, Bergen, Voorhees, Minturn, Kalisch, Bogert, Vredenburgii, Congdon, White, Treacy.—14.


text:
    William O. Campbell, respondent, v. Charles C. Weber et al., appellants.
    [Submitted July 10th, 1912.
    Decided November 18th, 1912.]
    On appeal from a decree of the court of chancery advised by Yice-Chancellor AYalker, whose opinion is reported in 79 N. J. Eq. (9 Buch.) 519.

      Mr. Edwin C. McKeag, for the appellants.

      Mr. George S. Bilzer, for the respondent.
   Per Curiam.

The decree brought up by this appeal is affirmed, for the reasons stated in the opinion filed in the court below b3r Yice-Chan•cellor AA'alker. -

One expression in that opinion is liable to misconstruction, viz., that the present estate of the wife “must be swept away from her because it rests upon the conveyances made to defraud the ■complainant, a creditor; so much, at least, as is necessary must be swept awa3r, but the balance, if any, will be hers.” We prefer to say that she took an estate in fee-simple, subject to the right •of- th&judgment creditor to have the conveyance treated as void as against his debt.

For affirmance—The Chief-Justice, Garrison, Sway.ze, 'Trenchakd, Bergen, AT'oorhees, Minturn, Iaalisoh, Bogert, Yredenburgh, Congdon, AVhite, Treacy—13.

For reversal—Yone.


text:
    Josephine M. Lake, administratrix, &c., appellant, v. Josephine T. Weaver, respondent.
    [Argued March 13th, 1912.
    Decided November 22d, 1912.]
    Oil appeal from a decree of the court of chancery advised Yice-Cliancellor Garrison,.whose opinion is reported ante p. 395.

      'Messrs. Melosh & Morten, for the respondent.

      Mr. John J. Crandall, for the appellant.
   Per Curiam.

The decree appealed from will he affirmed, for the reasons stated in the opinion filed- in the court below by Yiee-Chancellor Garrison.

For affirmance—The Chief-Justice, Garrison,, Swayze, Bergen, Yoorhees, Mint urn, Kalisch, Bogeet, Yreden-T3URGH, CONGDON, WHITE, TREACY—12.

For reversal—Kone.


text:
    Isabella Morris, appellant, v. Benjamin F. Dorsey et al., respondents.
    [Argued June 26th, 1912.
    Decided November 18th, 1912.]
    On appeal from an order of the court of chancery advised by Vice-Chancellor Learning, whose opinion.is reported in 77 N. J* Eq. (7 Buck.) b&0.

      Mr. John J. Crandall, for the appellant.

      Mr. Ralph W. E. Donges, for the respondents.
   Per Curiam.

The order appealed from is affirmed, for the reasons stated in the opinion of Vice-Chancellor Learning filed in the court below.

For affirmance—The Chief-Justice, Garrison, Swayze* Trenckard, Bergen, Voorhees, Minturn, Kalisch, Bogert* Vredeneurgi-i, Congdon, Treacy—12.

For reversal—Hone.