text:
    Alderwin S. Thomas, complainant, v. Cornelius Flanagan and Mary Flanagan, defendants.
    [Decided August 12th, 1926.
    Filed August 16th, 1926.]
    1. Jurisdiction is the authority to hear and determine a cause, or the right to adjudicate concerning the subject-matter in a given case, and includes three requisites — (1) cognizance of the class of cases to which the one to be adjudged belongs; (2) the proper parties; (3) the point to be decided must be within the issues.
    2. Where this court has jurisdiction of a suit, it is without jurisdiction to deliver this suit to the circuit court for decision under the Transfer of Causes act.
    On bill, &c. On motion to transfer to the circuit.

      Mr. Atwood C. Wolf, for the complainant.

      Messrs. Darling, Barnes & Dowden (by Mr. Benjamin Dow-den), for the defendants.
   Bentley, V. C.

In a previous opinion in this cause, 98 N. J. Eq. 198, it was determined, on a motion to strike out the bill,that an acknowledgment by a married woman to an agreement for the sale of real property was defective because it appeared therefrom that the officer who took the same had not “first made known to her the contents thereof,” in conformity with chapter 37 of P. L. 1918. Subsequently, an application was made under P. L. 1912 p. li-ll, as amended by P. L. 1915 p. 89, for a transfer of the cause to the circuit. The pertinent portion of the act in question is as follows:

“No civil cause or matter hereafter pending in any court * * * which has not jurisdiction of the subject-matter, shall be dismissed for that cause only, but the cause or matter shall be transferred with the record thereof and all papers filed in the cause for hearing and determination to the proper court, which shall thereupon proceed therein as if the cause or matter had been originally commenced in that court * *

It is argued that because the act with regard to acknowledgments by married women was a-bar to the relief sought by the complainant, it now appears that the court was without jurisdiction of the subject-matter involved, and, therefore, the proposed relief can be given under the 1915 statute.

Counsel has clearly misinterpreted the force and meaning of the phrase “jurisdiction of the subject-matter.” Jurisdiction has been defined as the authority to hear and determine a cause. 15 C. J. 723; Una v. Dodd, 39 N. J. Eq. 173. This case was reversed in the following volume of the reports, but not upon this ground. In Munday v. Vail, 34 N. J. Law 418, Chief-Justice Beasley says: “Jurisdiction may be defined to be the right to adjudicate concerning the subject-matter in a given case.” He also says that there are three requisites — first, cognizance of the class of cases to which the one to be adjudged belongs; secondly, the proper parties; thirdly, the point decided must be within the issues. Applying these directions to. the case at bar, it seems unescapable that (1) this court has plenary jurisdiction to decide cases for specific performance of a contract for the conveyance of real property; (2) that the proper parties were before the court, and (3) that the point decided was most unequivocally presented by the defendant’s notice in lieu of demurrer to strike out the bill. So explicit have the courts been in the determination of the meaning,of the word “jurisdiction” that it has been decided, time and again, that the power to decide necessarily carries with it the power to decide wrongly as well as rightly, subject only to the qualification that the court may render only such judgment as does not exceed in extent or character the law which is applicable to that class of cases. 15 G. J. 750. The transfer of causes being a purely statutory creation, this court is without jurisdiction to deliver this suit to the circuit court for decision, because it is only where the court is without jurisdiction of the subject-matter of the suit that such a course is permitted.

Reliance is placed upon Logan v. Flattau, 73 N. J. Eq. 222, in which Vice-Chancellor Bergen passed upon the question of whether or not a court of equity should assume jurisdiction, and not whether jurisdiction, in fact, existed, a matter upon which there has been considerable confusion. There has also been cited by the applicant the case of Carey v. Brown, 92 N. J. Eq. 497. There, Vice-Chancellor Lewis dealt with the fact that prompts the present application, namely, the running of the statute of limitations. He says, “if a suit has been brought in the court of chancery prior to the six years by mistake” it may be transferred to the law court notwithstanding the running of the statute at the time of the transfer. The italics in the above quotation are mine, and the reason for them is apparent, because in the case sub judice there was no “mistake” upon the part of the complainant in commencing this suit in this tribunal. It was the simple, ordinary case of a contract to convey lands which the vendor refused to complete, and I know of no other court in this state where the complainant would have hoped to secure á judgment directing the defendants to specifically perform their agreement.

I will refuse the order to transfer to the circuit court.


source: Caselaw Access Project

author: Bentley, V. C.

license: Public Domain

text:
    In the matter of Elliott Hardon, charged with contempt of court.
    [Decided August 10th, 1926.]
    Where a sum of money was to be deposited in a bank to be paid to an attorney when he procured the return of an absconding defendant in an indictment, and opened the forfeiture of a bail bond given for his appearance, and H. signed a receipt for the money, acknowledging that he held' it on the terms aforesaid, when as a fact he did not -have the money, but only a promissory note which proved worthless, it was decreed by the court that H. should not be allowed to say that he did not have the money he ‘had misrepresented as being in his 'hands, and after the attorney had fully performed his part of the contract, and had served a copy of the decree of this court on H. after more than a reasonable time had elapsed1 after the service of the decree on H. on motion to punish H. for contempt of the decree of this court, the ■defense by him that it is not in his power to perform not being proved, and actual fraud by H. in the matter having been proved, this court finds H. guilty of a civil contempt of its decree.
    On application for attachment as for a contempt.

      Messrs. Gross & Gross (Mr. Julius Lichtenstein, of counsel), for the proponent.

      Mr. Victor Bushin, for the respondent.
   Bentley, V. C.

Defendant Leber was jointly indicted with a son-in-law named Epstein, who was also separately named in another indictment. Leber entered into a recognizance, or conveyed the legal title to some real estate, and the grantee became surety for Epstein, who fled the jurisdiction of the court. Leber then sought the services of the complainant, an attorney-at-law, to secure Epstein’s return so as to apply for and obtain an opening of the judgment of forfeiture of bail that had been entered on account of Epstein’s default. It was agreed between these two that Leber should deposit with a bank the sum of $5,000 in cash, upon the condition that when Epstein should be prevailed upon to return and surrender himself and the judgment of forfeiture be opened, the depository should then pay over the above sum to the complainant as compensation for his services. It was further agreed that nothing should be paid to the complainant unless he was successful in carrying out his contract. Upon the making of the foregoing agreement the complainant and Leber went to the bank agreed upon and saw one of its vice-presidents, the defendant Hardon, who signed a statement in which he acknowledged having personally received from Leber the said sum of $5,000 in cash for the purpose aforesaid, when, in fact, all he had taken was a promissory note that subsequently proved worthless. On the faith of what Hardon had told him, the complainant exerted great effort in carrying out his part of the bargain, and secured the services of no less than four other. lawyers, to whom he is indebted. The complainant effected the return of Epstein, as well as the setting aside of the judgment of forfeiture of bail, thus completing his share of the agreement. At the end of the final hearing it was decreed that Hardon should not be allowed to say that he did not have the money he had misrepresented as being in his hands, and that he should pay to the complainant $5,000. There were two others defendants, but, by consent, no relief was decreed as against anyone but Hardon. A copy of this decree has been served upon Hardon and a demand made thereunder.

More than a reasonable time having elapsed and no payment of the decree having been made, complainant now moves to have Hardon adjudged in contempt of court and punished for his recalcitrance. His defense to the motion is that the performance of the decree is beyond his power, and cites the case of Grand Lodge, S&., v. Jansen, 62 N. J. Eq. 737. On the return of the order to show cause why he should not be punished he presented himself and was sworn in his own behalf. He testified that for a considerable period of years it has been his invariable practice to turn his salary received from the bank over to his wife, in full; that she discharges all the expenses of their family, which includes a married daughter and two grandchildren; that he does not eat any midday meal and, therefore, receives from his wife only his carfare and the money for such absolute necessaries as clothing. His salary is $9,000 a year, paid to him in equal semi-monthly installments. During the year 1925 he was paid $8,000; during 1924, $7,000. When interrogated as to his earnings before 1924 he insisted that he was unable to remember. It is not without significance that the unusual practice in his station in life of making his wife the treasurer of the family was instituted some years ago when he became liable under a judgment óf the supreme court for the debt of another. He also testified that he had no bank account; that he owns no stocks, bonds or other securities. He was unable to give any estimate of the expense of maintaining ■his home. He had no idea of the balance in his wife’s bank account. He was unable to state whether or not she had invested any savings out of his income in securities or otherwise except, as I recall it, a trifling sum in some debentures of more sentimental, than financial, value.

Toward the close of his cross-examination he was asked if 'he would furnish a transcript of his wife’s bank account covering the last past year, to which he replied that he did not believe his wife would consent, though admitting that they lived on very friendly terms. Following this surprising answer, he was relentlessly pressed, and finally agreed to seek her permission to obtain the transcript. This story, when viewed in the light of all the surrounding circumstances, is not persuasive that the defendant Hardon has made any bona 'fide or whole-hearted effort to obey the decree. Here is a man occupying a dignified and remunerative position, who has been in receipt of a large salary for many years, and who has not only saved nothing, but has adopted a course of living at variance with his station in life; decided upon, however, only after he has once been caught in the toils of the law and compelled to discharge a legal obligation for which he was not primarily responsible. Then, and not until then, he saj^s, did he put into operation the plan to divest himself of all power to respond to a decree against him. But he has selected as the recipient of his bounty the person most likely to care for his money and other property as he may direct and with the utmost fidelity to his interests. All these things, taken in connection with his reluctance to subject the financial affairs of his wife to the scrutiny of the court, and ultimately his entire failure so to do, lead me to disbelieve that it is not within his power to render obedience to the final decree.

It is argued in his behalf, however, notwithstanding such finding of fact, that it is not within the power of this court to commit him until he shall have complied with its order, because of the constitutional limitation on imprisonment in civil cases. In support of this argument there is cited Aspinwall v. Aspinwall, 53 N. J. Eq. 684. In that case the respondent in the court of errors and appeals had failed to pay to the appellant, his wife, a sum of money decreed to be due her under articles of separation, and the chancellor had refused an attachment as for a contempt. This decision was affirmed by the court of errors and appeals because they say that under our statute the proper remedy would have been either sequestration of the respondent’s estate or an execution against his lands and goods. Originally, of course, this court could only enforce its decrees in personam,, because there were no other means by which that object could be attained, but, by statute now, execution may be issued out of this court with like force and effect as those issuing out of the supreme court, and, therefore, ordinarily, recourse may only be had to such statutory processes by reason of article 1, section 17 of the'constitution of this state. But that section of the constitution-goes further in a saving clause, and says that no person shall be imprisoned on any judgment founded upon contract “unless in cases of fraud.” By necessary inference, this means that imprisonment may be resorted to in cases of fraud. Ex parte Clark, 20 N. J. Law 648. In the Aspinwall Case this exception was specifically noticed in the opinion of the present chief-justice when he said:

“In my opinion, the effect of this legislation was to do away with the process of contempt, as a method of enforcing decrees for the payment of moneys due upon contracts between the parties, in cases where no special equities exist, and to substitute, therefore, sequestration of the defendant’s estate, the writ of fieri facias against his real and personal property, and, in cases of fraud, the writ of capias against his person.”

Therefore, if the necessary fraud has been shown, the case at bar does not come within the rationale of the Aspinwall Case, Walton v. Walton, 54 N. J. Eq. 607; Grand Lodge Knights of Pythias v. Jansen, supra, or Smith v. Smith, 84 N. J. Eq. 299. The guaranty of the constitution is for the benefit of the honestly unfortunate, and not for one who has brought his own troubles upon his head by inequitable conduct that would be called by a less euphonious name in a court of law. Ex parte Clark, supra. That the transaction is tainted with fraud has already been decided in the opinion delivered upon the close of the final hearing. It only remains to determine whether or not it is such fraud as is contemplated by the constitution.

At the time I rendered the oral opinion in this case, I indicated that while I did not find this defendant guilty of actual fraud, there had been constructive fraud by reason of the relation existing between the complainant and this defendant, as described in sections 955 to 965 of Pomeroy’s Equity Jurisprudence. In making this statement, I incline to the opinion that I was wrong. The natural and'inherent aversion of imposing any additional pain upon, or embarrassment to, another where it is unnecessary to the ends of justice, led me to minimize the obliquity of the defendant’s action in the eyes of this court. If a finding of constructive fraud would be sufficient to protect the rights of the complainant, it was, of course, distasteful to find this defendant guilty of the more serious character of fraud. I am now convinced that the conduct of this defendant amounted to actual fraud.

Malice is not a necessary element of fraud of this description :

“In order that a statement' may be a fraudulent misrepresentation, the party making it need not have any malignant feeling towards the ■ other, nor any desire to injure, nor need he be actuated by any corrupt or wicked motive; for equity looks at the relations of the statement towards the real facts, and the results which will naturally flow from it, rather than at the mental condition, temper and feelings of the person who makes it. If, therefore, a representation made prior to the transaction, and directly relating to it, is of such a character that ■it would naturally and reasonably induce, or tend to induce, any'ordinary person to act upon it, and enter into the contract or engage in the transaction, and is, in fact, followed by such action on the part of the other person, then it -will be presumed that it was made for the purpose and with the design of inducing that person to do what he has done, * * * that is, to enter into the agreement or engage in the transaction. The design will be inferred from the natural and necessary consequences.” 3 Pom. Bq. Jur. § 880.

Neither is it necessary that the misrepresentation upon which the defrauded party acted need be intentional on the part of the person making the same. While at law such moral ivrong is required, the rule is far broader in equity. $ Pom. Eq. Jur. §§ 885, 889; Eibel v. Von Fell, 55 N. J. Eq. 670; DuBois v. Nugent, 69 N. J. Eq. 145.

But even if it be assumed that the defendant absolutely believed that the note which he held for the complainant’s protection (and which turned out to be no protection at all) was the exact equivalent of so much cash, even that cannot avail him, because some time within a period of three months; and probably within a very few days after the transaction with the complainant, this defendant learned unequivocally that the note just mentioned was of absolutely no value for the purposes'for which it was given. Not even then was one word said to the complainant to acquaint him with the fact that the man upon whom he relied did not have a dollar for his protection. This silence was maintained, and this information withheld, for a period of approximately one year, until the complainant’s services had been complete, his position had changed for the worse, and he demanded his reward. Even then, the responding defendant failed to disclose the true situation and put the complainant off with the statement that he would be obliged to communicate with Leber and secure that defendant’s consent before turning over the fund. And even thereafter, his excuse for the non-payment thereof was that Leber pretended that there was a further condition upon which the complainant’s compensation was to depend, not mentioned in the written instrument, and said by Leber not to have been accomplished by the complainant. It was not until the answer in this cause was filed on Hardon’s behalf that the complainant learned that the $5,000 had never been, deposited in the hands of Hardon or with his bank. This suppression of knowledge, which it was the duty of Hardon to disclose, in itself constitutes actual fraud.

“Where such an untrue statement is made in the honest belief of its truth., so that it is the result of an innocent error, and the truth is afterwards discovered by the person who has innocently made the incorrect representation, if he then suffers the other party to continue in error, and to act on the belief that no mistake has been made, this, from the time of the discovery, becomes, in equity, a fraudulent representation, even though it was not so originally.” 8 Pom. Bq. Jur. § 888.

The conduct of Hardon having amounted to actual fraud, and being the very basis of the decree against him, and having found as a fact that he has not sustained the burden of proving the poverty he alleges, I feel that the complainant is entitled, ex debito justiiice, to the assistance of this court in compelling this defendant to respond to its decree. His having placed Ms property beyond the reach of the ordinary processes of our practice has made it necessary to resort to the extremest measure.

I will advise an order adjudicating that the defendant Hardon has committed a civil contempt, and that the proper writ go.


author: Berry, V. C.

text:
    Joseph Peragallo et al., complainants, v. Hyman Luner, defendant.
    [Decided May 17th, 1926.]
    1. Any business may become a nuisance where it is not conducted with due regard to the rights of surrounding property owners, and renders the enjoyment of their property impossible.
    2. Bowling alleys may be operated in such a manner as to constitute either a public or private nuisance.

      3. Where bowling alleys are operated over a restaurant in such a manner that the loud and audible noises therefrom affect the business of -the restaurant to such an extent that a person of ordinary intelligence, health and sensibility would be distracted from their meals while eating, and would suffer substantial inconvenience and annoyance from this loud noise, such operation will be enjoined.
    On bill for injunction. On final hearing.

      Mr. Edward B. McGlynn, for the complainants.

      Mr. Merritt Lane and Mr. Barney Larkey, for the defendant.
   Berry, V. C.

This bill is filed to restrain an alleged nuisance.

The complainants are the lessees of the first floor of a building at 184-192 Halsey street, Newark, New Jersey, ins which they conduct a restaurant. They have a ten-year lease-dating from October 1st, 1924, at a rental beginning at' $12,500 per annum and gradually increasing to $16,000 ins the last year of the term. Their investment in their business, aside from the lease, is, approximately, $58,000. After the complainants had established their business at that address, the defendant leased the second floor of the building and installed therein nine bowling alleys, three of which are over the complainants5 kitchen and six of which are over the dining-room, or restaurant. The complainants allege that the operation of these bowling alleys created such a din and noise and caused so much shaking and vibration of the building as to constitute a nuisance, resulting in customers of complainants refusing to patronize their restaurant when the alleys were in operation, and consequent irreparable damage. This bill was filed in October, 1924, and a restraining order was made by the late Vice-Chancellor Foster under the terms of which the defendant was prohibited from operating his bowling alleys during the rush hours of the restaurant business. It appears from the testimony that the bowling alleys operate usually from twelve noon. to midnight, and that the restaurant lunch hours are from eleven to five and dinner hours from five to ten, the restaurant closing at midnight. The volume of lunch business is transacted between twelve noon and two o’clock in the afternoon, and of the dinner business from six to eight o’clock in the evening. Many witnesses were examined on both sides of this controversy, and the testimony as to the noise, vibration and annoyance to complainants’ employes and customers was very conflicting. There were, however, several disinterested witnesses, who patronized this restaurant, called for the complainants, and whose testimony indicates good cause for complaint. It is true that some witnesses, who had patronized the complainants’ restaurant, called on behalf of the defendant, testified that they were not annoyed by the noise and vibration from the bowling alleys; but the fact that some persons are not annoyed by an alleged nuisance is not conclusive as to the non-existence of the cause of complaint, the test being the effect which is had upon the ordinary person, who is neither over-sensitive nor immune to .the annoyance, concerning which complaint is made. Rausch v. Glazer, 74 Atl. Rep. 39; Kroecker v. Camden Coke Co., 82 N. J. Eq. 373; Board of Health of Irvington v. Schmidt, 83 N. J. Eq. 35; Harrigan v. Sinclair Co., 85 N. J. Eq. 85.

Immediately upon complainants learning that bowling alle}^ were to be installed over their restaurant, objections were made to the landlord, who assured the complainants that the allej^s would be so constructed as to render any noise or annoyance from their vibration unnoticeable in the restaurant below. As soon as the operation of these alleys was begun, however, complainants complained to the landlord and th'e defendant that their operation was injuring their business, and thereupon steps were taken to make such alterations in the alleys as might eliminate the cause of the complaint, and with some degree of success, but not to the extent of eliminating the cause of complaint or annoyance. It appears by the testimony of experts in bowling-alley construction that everything has been done that can be done to eliminate noise and vibration; also, that the character of the building may have something to do with the impossibility of reconstructing the alleys so that their operation will not be objectionable.

At common law, bowling alleys were held to be a nuisance per se (see note to 40 L. R. A. (N. S.) 75, and 20 L. R. A. 495), apparently, because of statute 33 (Henry VIII ch. 9), and previous statutes, which made it penal for any persons, except noblemen and gentlemen of a certain quality, to play at bowls. But the modern view is contra. State v. Hall, 32 N. J. Law 158, 162. However, bowling alleys may be operated in such a manner as to constitute either a public or a private nuisance, 29 Cyc. 1168; Harrison v. People, 101 Ill. App. 224; Bloomhuf v. State, 8 Blackf. (Ind.) 205; Hackney v. State, 8 Ind. 494; Hamilton Corporation v. Julian, 130 Md. 597; note, 7 A. L. R. 746.

And any business may become a nuisance where it is not conducted with due regard to the rights of surrounding-property owners, and renders the enjoyment of their property impossible. Nowak v. Baier, 78 N. J. Eq. 112.

Noise alone may constitute a nuisance, but, in determining whether it is a nuisance, the character and volume, and the time, place and duration of its occurrence and the locality must be considered. Cleveland v. Citizens Gas Light Co., 20 N. J. Eq. 201; Reilley v. Curley, 75 N. J. Eq. 57.

At the conclusion of the hearing in this cause it seemed to be agreed by counsel that this was a case where the degree of noise and the effect created by that noise were the determining factors. It was contended by counsel for the defendant that the right of complainants to the relief prayed for depended entirely upon whether or not the annoyance arising from the operation of the bowling alleys was such as would, under all the circumstances of the case, unreasonably interfere with the reasonable enjoyment of complainants’ property and the conduct of their business. With this proposition I was at that time in entire agreement. Although there was then little question in my mind as to the rights of the parties, on application of counsel for defendant I appointed one of the masters of this court to make an independent investigation, and to report to this court whether or not, in his opinion, as an unprejudiced person, the operation of the bowling alleys would constitute a nuisance.

Pursuant to this appointment an investigation was made by the master, and, by direction of this court, the alleys were operated as required by the master. The master, in his report, says: “The loud and audible noises above described affect the business of the complainants to such an extent that a person of ordinary intelligence, health and sensibility would be distracted from their meals while eating, and would suffer substantial inconvenience and annoyance from this loud noise.” This report is now a part of the files in this cause and but confirms the impression which I had obtained from the testimony — that is, that the unrestrained conduct and operation of these bowling alleys would constitute a nuisance entitling the complainants to injunctive relief, but that the restraint heretofore imposed by the preliminary injunction might be somewhat modified to permit the operation of bowling alleys for a longer period and for a portion of the time during which their operation is now restrained. After thoroughly examining the transcript of testimony and considering the master’s report, I have decided to advise that an injunction issue restraining the operation of these bowling alleys during the bourse of from twelve noon to two p. m. and from six p. m. until seven p. m.


text:
    Walter F. Barry et al., complainants, v. Anna Ruskin, defendant.
    [Heard April 14th, 1926.
    Decided May 17th, 1926.]
    1. Where time is not made of the essence of a contract for the sale of land, it may nevertheless be made of the essence by the subsequent conduct or agreement of the parties.

      '2. Where time is of the essence of a contract for the sale of land, either by its original terms or by subsequent conduct or agreement, prompt performance at the stipulated time is essential.
    On bill for specific performance. On final bearing.

      Mr. Ralph E. Lum, for the complainants.

      Messrs. Lane, Lynch & Smith, for the defendant.
   Berry, V. C.

The complainant Belier is the assignee of the complainant Barry, and seeks the specific performance of a contract for the sale of land in the city of Newark by the defendant, who agreed to convey to Barry. The contract is dated June 5th, 1925, and its terms are not in dispute. It provided for settlement on September 1st, 1925. Time was not made of the essence of the contract by its terms. The contract was assigned to Beiler by Barry on July 22d, 1925, but the defendant had no notice of this assignment. The complainant-assignee was not ready for settlement on September 1st, because of exceptions on the title company’s report of the examination of the title, which had not been cleared up, and a few days before September 1st applied, through his counsel, to the defendant for an extension of time to September 15th for settlement. This was refused, but these negotiations resulted in an agreement between the attorneys of the respective parties that the time of settlement would be fixed for September 8th, 1925, and to carry out that understanding counsel for complainants prepared a form of written agreement, which provided for an adjournment of the time of closing from September 1st to September 8th. This form of agreement, however, the defendant refused to sign, but, under date of September 1st, wrote the complainant Barry a letter-advising him that the time of settlement would be extended to September 8th. The letter closes with the following statement: “I will not grant any further, extension to you for the passing of title of the property.” No reply to this letter was made by anyone, and I think it may be fairly assumed that complainant acquiesced in the arrangement evidenced by that letter. The title company was not ready for closing the title until September 10th, because the exceptions appearing on its report had not been satisfactorily cleared up until that time. On September 8th complainants’ attorne}'- addressed a letter to the defendant calling her attention to certain exceptions on the title company’s report, and in which letter complainants contended that defendant was not in a position to convey a marketable title at that time, but suggested that the objections might be taken care of by September 15th. Under date of September 9th, defendant replied to that letter, denying that there was any defect in her title, and, because of the failure of the vendee to perform on September 8th, repudiated and rescinded the contract. On September 14th complainants’ attorney advised defendant’s attorney that complainant Barry was prepared to close the title, but defendant stood on her letter of September 9th and refused to perform.

It appears that the complainants did not order a search against this property until August 10th, a period of over two months after the date of the contract. If title examination had been ordered by complainants promptly after the execution of the contract there would have been no delay in the performance, as the title company would then have had ample time for the work before the date fixed for settlement. By delaying the placing of an order for the title policy the complainants must be taken to have assumed the consequences. At the time this contract was made, and at the time fixed for performance, the real estate market in the city of Newark was speculative, and prices were subject to considerable variation. While time was not of the essence of the contract as originally executed, it seems to me that it was made such by agreement of the parties when the final date for closing was fixed for September 8th, which wag evidenced by the letter of September 1st from the defendant to the complainant Barry, and further evidenced by a form of extension agreement prepared by complainants’ solicitor. The preparation and submission of this form of agreement by the complainants’ solicitor is strong evidence to my mind that he understood that the final date for closing was September 8th, and his failure to demur to defendant’s letter of September 1st is conclusive. I feel that in rescinding the contract, after the failure of the vendee to perform on September 8th, the defendant was clearly within her rights. Under the circumstances of this case, the extension of one week granted by the defendant for the closing of title was, in my judgment, entirely reasonable, -especially in view of the complainants’ long delay in ordering searches. This, I believe, to be in accordance with the adjudication of this court and the court of errors and appeals in the following cases: King v. Ruckman, 20 N. J. Eq. 316; Huffman v. Hummer, 17 N. J. Eq. 267; Newark v. Lindsley, 114 Atl. Rep. 794; Orange Society v. Konski, 94 N. J. Eq. 632; affirmed, 95 N. J. Eq. 254.

In Orange Society v. Konski, supra, Vice-Chancellor Backes said (at p. 635):

“The law is that a day fixed in a contract for closing title, without more, is mer'ely formal; blit if it is stipulated that time is of the essence, or the circumstances are persuasive that that is the case, prompt performance is essential, and it is also the law that where the time fixed is regarded as a formality only, and the period has gone by, or where time is of the essence and there is a waiver, that time may, nevertheless, be made of the essence by formal demand that the title be closed by a given day, but the time given must be reasonable.”

And in Newark v. Lindsley, supra (at p. 796), the same vice-chancellor said:

“A bill for specific performance is addressed to the extraordinary jurisdiction of a court of equity to be exercised according to its discretion. The general rule is that he who seeks performance of a contract for the conveyance of land must show himself ready, desirous, prompt and_ eager to perform the contract on his part. Therefore, unreasonable delay in doing those acts, which are to be done by him, will justify and require a denial of relief. No rule respecting the length of the delay, which will be fatal to relief, can be laid down, for each case must depend on its peculiar circumstances.”

In that case a delay of two months in beginning the examination of title was one of the circumstances moving the court •to refuse relief. The case is, -in part, at least, analogous to the case sub judice, and is ample authority for dismissing this bill. The long delay of the complainants in ordering searches in this ease was responsible for their not being ready to' close the title on September 1st. At that time conditions in the real estate market were such that further delay might be prejudicial to the interests of the vendor, and I am of the opinion that she was within her rights in refusing to extend the time for settlement beyond September 8th; but, irrespective of the reasonableness or unreasonableness of this extension, it is clear that such an extension fixing the final date for settlement at September 8th, and beyond which it was understood no further extensions would be allowed, was agreed upon between the parties. I will therefore advise a decree dismissing the bill of complaint.


text:
    Douglas V. Colyer, complainant, v. Foster Screen Company, Incorporated, defendant.
    [Argued May 18th, 1926.
    Decided May 27th, 1926.]
    1. An employe of an insolvent corporation is not entitled under section 83 of the General Corporation act (§ Comp. Stat. p 1650) to a preference on his claim for reimbursement for expenses incurred for traveling, hotel, bills, &c.,'in the performance of his duties and for the payment of which expenses he had personally advanced the funds.

      2. The preference given by section 83 of the General Corporation act (3 Oomp. Stat. p. 1650), being in derogation of the common right of equality among creditors of the same rank, the scope of the statute should not be extended by construction.
    On bill, &c. On appeal from receiver’s determination as to preference on claim for wages.

      Mr. Isador V. Davis, for the appellant.

      Mr. Robert D. Grosman, for the receiver, pro se.

   Berry, V. C.

The proceedings, which resulted in the appointment of the receiver in this cause, were instituted on August 20th, 1925. The appellant was employed by the insolvent company as secretary and sales manager. He filed a claim with the receiver for $711.49, and claimed to be entitled to preference under section 83 of the General Corporation act. 2 Oomp. Stat. p. 1650. This claim was made up of two items, to wit, $333.33, representing salary due him from the defendant company for the two months preceding the institution of these proceedings and an additional sum of $378.16, representing moneys expended by him for railroad fares, hotel bills, meals and incidental expenses while traveling for the insolvent company. The receiver allowed that portion of the claim which represented salary as a preferred claim, but refused to give preference to the portion of the .claim representing moneys advanced by claimant for expenses, allowing this portion as a general claim. From this determination of the receiver the claimant has appealed to this court, and asks for reversal of the receiver’s decision with reference to the expense money.

The statutory provision under which this claim for preference is made is as follows:

“83. In case of the insolvency of any corporation the laborers and workmen, and all persons doing labor or service of whatever character, in the regular employ of such corporation, shall have a first and prior lien upon the assets thereof for the amount of wages due to them, respectively, for all labor, work and services done, performed' or rendered within two months next preceding the date when proceedings in insolvency shall be actually instituted and begun against such solvent corporation.” P. L. 1896 p. 808; 2 üoiwp. Stat. p. 1650

To entitle a claimant to preference under this section the claim must be for wages due for labor or services rendered within two months next preceding the date of the institution of insolvency proceedings.

The Standard Dictionary defines “wage” as “payment for service rendered, especially the pay of manual laborers receiving a fixed sum per day, week or month.” See, also, 10 Cyc. 2^0, where the word “wages” is similarly defined.

In Delaware, Lackawanna and Western Railroad Co. v. Oxford, Iron Co. 33 N. J. Eq. 192 (at p. 202), Vice-Chancellor Van Fleet held that the preference given by this section of the Corporation act “is in derogation of the common right of equality among creditors of the same rank, and the scope of the statute should not, therefore, be extended by construction,” and in holding that interest on a claim for wages was not allowable as a preferred claim, further said: “The court is bound to give what is granted, but nothing more. The lien given is for wages, and, I think, the court is bound to restrict it to wages.” See, also, Lehigh Valley Coal and Navigation Co. v. Central Railroad Co., 29 N. J. Eq. 252.

Appellant cites Watson v. Watson Manufacturing Co., 30 N. J. Eq. 588, as authority for his contention that he is entitled to a preference on his whole claim. In that case, a drayman’s claim for wages due to him for services rendered by him with the aid of his horses and wagon was allowed as a preferred claim, and this was on the theory that the horses and dra,ys were the tools or instruments of his trade, and the appellant insists that so, also, were the trains, hotels, meals, &c., the tools or instruments of his employment, and that, consequently, he is entitled to a preference for the expenses thus incurred. The cases are not analogous. In the Watson Case the drayman, his horses and drays, were employed as a single entity, and his claim could not well be divided. In the case now under consideration, however, the claimant was hired as secretary and sales manager for a definite and fixed monthly salary. The testimony submitted on this appeal does not indicate any express agreement for the payment of the expenses of the claimant, either as a part of his salary or compensation, or otherwise; although from the course of dealings between the claimant and his employer an agreement for reimbursement might be implied, as the statement submitted by the claimant shows reimbursement by the insolvent company from time to time of the moneys expended by the appellant. It seems quite clear, however, that the advances by the appellant of his own expense money was in the nature of a temporary loan to the company, and the amount due him for such advances cannot, under these circumstances, be considered “wages.” Undoubtedly, in a well-ordered business the employer would have advanced expense money to the employe, but the claimant, notwithstanding his intimate knowledge of the company’s affairs and its financial difficulties, voluntarily advanced the moneys required for his expenses, and this must, necessarily, be considered as a loan. But, even if I considered the appellant to be entitled to a preference for this claim, then it could not be allowed for the full amount, inasmuch as the amount of money advanced by him for expenses for the two months preceding August 20th, 1925, was only $177.75, and not $378.16, the amount of the claim disallowed. Under no circumstances could this claim exceed the amount advanced during the two months’ period. The account shows further that, during the same period, he received from the company on account of expenses the sum of $185. The receiver claims that the payments during the two months’ period should be applied to the disbursements during the same period, and that, therefore, nothing is due to claimant for this period in any event; but, in the view I take of this case, it is unnecessary to decide this point. I am of the opinion that the expense moneys advanced by the claimant, and for which preference is now claimed, are not within the statute. The determination of the receiver will therefore be sustained.


text:
    Borough of West Long Branch et al., complainants, v. Home Building and Realty Company of Long Branch, New Jersey, defendant. Basil B. Bruno, complainant, v. Home Building and Realty Company or Long Branch, New Jersey, defendant.
    [Decided May 15th, 1926.]
    1. The right of the owners of lands dedicated to cemetery purposes prior to the enactment of legislation requiring municipal consent to the location of new or enlargement of old cemeteries, to use such lands for the purposes to which dedicated, are not affected by such legislation.
    2. Under 1 Cfomp. 8tat. pp. 880, 386 §§ 27, J/S, the consent of both the governing body and local board of health of a municipality is required to the location of a new or enlargement of an old cemetery within the limits of such municipality.
    3. This requirement of consent applies only to lands not dedicated to cemetery purposes prior to the enactment of such legislation.
    4. Where there is no impending violation of one’s rights, an injunction to prevent such violation will not be granted.
    On bill for injunction.

      Mr. William A. Stevens, for the complainants borough of West Long Branch and the board of health of the borough of West Long Branch.

      Mr. John C. Giordano, for the complainant Basil B. Bruno.

      Messrs. Quinn, Parsons & Dor emus, for the complainants K. M. VanGelderen et al.

      Mr. Thomas P. Fay, for the complainants Jennie S. Parker and West Long Branch Company.
    ' Mr. T. Raymond Bazley and Mr. William L. Fdwards, for the defendant, Home Building and Kealty Company of Long Branch, New Jersey.
   Berry, V. C.

Both these suits relate to the same subject-matter, but are exactly opposed with respect to the relief sought.

In the first suit the complainants seek an injunction preventing the defendant from selling any of its property for burial or cemetery purposes. In the second suit, which resulted from the first, the complainant asks to have the same defendant enjoined from selling any of its land for other than burial or cemetery purposes.

These two suits have been consolidated by order of this court.

This controversy arises from the following state of facts which I find from the testimony and evidence submitted herein:

In March, 1880, Charles Chasey laid out a cemetery on land owned by him, and filed in the office of the county clerk at Ereehold, New Jersey, a map thereof entitled “A map of Greenlawn Cemetery, Long Branch, New Jersey.” On January 28th, 1882, Charles Chasey and his wife, Mary H. Chasey, conveyed this property to Levice Chasey, who, three days later, conveyed to Mary H. Chasey. In these deeds the property is described as “being the same property whereon the said Charles Chasey now resides and including ‘Greenlawn Cemetery,’ containing ten acres, more or less.” -From March, 1880, to September, 1922, Greenlawn Cemetery was operated by Mary Ciiasey and Charles Chasey, either one or both. About two hundred and fifty burial plots were sold by them out of the property shown on the original map. .This-map covered, approximately, three or four acres. Having disposed of all of the lots shown on that map in January, 1902, they had the adjoining lands, which were a part of the lands described in said deeds, laid out and mapped into lots numbered from 1 to 641, inclusive, and this map was entitled by the engineer who made it, and of his own volition, “an addition to Greenlawn Cemetery.” It is claimed by the defendant, and not denied by the complainants, that this later map was filed in the office of the county clerk at Freehold in 1902, but it appears that no such map was there on file at the time this suit was instituted. A duplicate of the map has, however, since been filed in that office. After the making of the new map, and prior to September, 1922, the Chaseys sold to individual purchasers about two hundred and fifty burial plots as shown on that map, and bodies have been buried in practically the entire two hundred and fifty plots. The land shown on the two maps is separated by a roadway, which is 'now lined with maple trees, set out, approximately, twenty years ago. Prior to 1902 the lands which were mapped in that year were used by the Chaseys for farming and grazing purposes, and since 1902 and up to within the past ten or twelve years the unused portion of the lands shown on the later map — that is, the portion which has not been actually sold in burial plots, was also used for farming and grazing purposes. In September, 1922, Edward E. LaCour and Samuel Heimlich purchased the unsold lots shown on the map of 1902, and in November, 1922, conveyed those lots to the defendant' company. Mr. LaCour is the secretary and treasurer of that company. Since the date of this latter conveyance the defendant has sold five lots for burial purposes, including the lot owned by the complainant Bruno. All of this land was originally located in the township of Eaton-town until the incorporation of the borough of West Long Branch in 1908, when it became a part of that borough.

The whole property described in the deeds above referred to, with the exception of the Chasey dwelling-house and a small plot of ground- adjacent thereto, has been exempted from taxation since 1880 by the municipal authorities of the township of Eatontown until the incorporation of the borough of West Long Branch in 1908, and since that time by the municipal officials of that borough. The whole tract, excepting the dwelling-house and lot, is shown on the tax map of the borough of West Long Branch as exempt, and is marked “cemetery.” The defendant is organized under the General Corporation act, and objection is made by the complainants to the exercise by the defendant of the rights and privileges granted corporations under the Cemetery act. 1 Comp. Stat. p. 872. To meet this objection, since these suits were instituted, the Greenlawn Cemetery Association of Long Branch, New Jersey, has been organized under the Cemetery act, and the defendant company has agreed to convey these lands to the new association, although no such conveyance has yet been made. In view of that situation, this objection is now admitted by all counsel to be of no practical consequence is not pressed, and the question thereby raised has not, therefore, been considered. No formal application under the provisions of the Cemetery act was ever made to the municipal authorities of the township of Eatontown or of the borough of West Long Branch, either by the defendant or any of its predecessors in title, for the consent or approval of an extension-or addition to Greenlawn Cemetery as shown by the map of 3902 until after the institution of the first suit. The complainants in the first suit contend that, without such consent having been first had and obtained, the defendant is without authority to sell burial plots or to conduct and operate a cemetery. The defendant contends that this was not necessary, because it was neither creating a new cemetery nor extending an old one, and that the mapping of additional lots, as shown on the 1902 map, was not an extension of or addition to an old cemetery, but was simply the laying out into lots of the land which had already been dedicated to cemetery purposes. After the institution of these suits, however, and at the suggestion of the late Vice-Chancellor Roster, by whom the application for preliminary injunction was heard, the Greenlawn Cemetery Association of Long Branch, New Jersey, was incorporated under the Cernetery act, and that company made formal application to the mayor and council of the borough of West Long Branch and the local board of health for permission to lay out and operate an addition to or extension of Greenlawn Cemetery. This application was in no sense an admission by defendant of any legal requirement therefor, express disclaimer of such requirement being made by the defendant. The permit was refused both by the mayor and council and by the board of health, and an appeal from that decision was taken to the state department of health. (That the applicant for the .municipal consent was not the owner of the land intended to be used for cemetery purposes at the time of the filing of this application was no bar to the application or to a permit. Burdette v. Fairview, 66 N. J. Law 523.)

. A hearing on this appeal was duly had before the state department of health, and on February 3d, 1925, that department decided, on advice from the attorney-general, that it was without jurisdiction to reverse the decision of the municipal authorities or to grant a permit, because Green-lawn Cemetery had been in existence since 1880, and the land which were the subject of this controversy had been exempt from taxation for many years, thereby indicating that this particular land was a part of the original cemetery, and that there was no present intention to enlarge or extend the existing cemetery. In rendering this decision the state department of health acted judicially. Dodd v. Board, 67 N. J. Law 468. -It based its decision on a finding of fact. No appeal from that decision was taken. This finding of fact is, at least, evidential here.

It also appears from the testimony that the cemetery in question is but one of thirteen located within the limits of the borough of West Long Branch. The complainants in' the first suit strenuously object to the establishment of any new cemeteries therein. They also complain that Greenlawn Cemetery is “rapidly becoming a nuisance” by reason of its upkeep having been neglected by former owners who allowed the grass, weeds and briars to overrun the lots and graves and monuments to fall into disrepair. Injunctive relief is not asked, however, on the ground that the defendant is maintaining a nuisance, and, in fact, there is no evidence indicating that offense. It is perhaps true that the old portion of the cemetery has not been kept in as good condition as it deserved to be kept, but the defendant is not responsible for that condition. The defendant says, however, and this statement is not denied, that it has already entered into contracts for the improvement and embellishment of Greenlawn Cemetery, including the old portion thereof, involving an expenditure of $10,000, and it appears, conclusively, from the testimony that it is the intention of the defendant and Green-lawn Cemetery Association, after it acquires title, to improve, conduct and operate this cemetery in a manner which will be a credit, not only to themselves, but to the municipality in which it is located as well.

It seems to me that the whole question presented in this controversy is one of fact, as the law applicable does not seem to be seriously ih dispute. The earliest statute requiring the consent of municipal authorities to the enlargement of or addition to cemeteries which my research has disclosed, is P. L. 1885 p. 166 ch. 129. This act was amended by the legislature in 1904 and again in 1905, and now appears in the revision of the Cemetery act as section 27. 1 Comp. Stat. p. 880. Provisions similar to those contained in that act are also contained in P. L. 1906 p. 28-4 ch. 152; 1 Gomp. Slat. p. 886. If, therefore, this whole tract of land was intended for and dedicated to cemetery purposes when the original map was made in 1880, as claimed by the defendants, subsequent legislation requiring municipal consent would not affect the rights of the original owners, or their successors in title, to use that land for cemetery purposes without obtaining such municipal consent. But if it is the intention of the defendant to locate a new cemetery or to enlarge or extend an old one, then it would be necessary for the defendant to obtain the consent and approval of the governing body and the board of health of the municipality within which such proposed new cemetery or enlargement of the old cemetery is located. 1 Gomp. Slat. p. 880 § 27 (P. L. 1905 p. 112), and p. 88.6 § 48 (P. L. 1906 p. 284)- This question of fact, however, resolves itself into one of intention on the part of the original owners of this tract of land at the time G-reenlawn Cemetery was originally laid out in 1880. The only parties who could conclusively state that intention were the original owners, and they are now dead. The intention must, therefore, be gathered from the records and documents and other evidence concerning this property to which access may be had. The earliest record which has been offered in evidence is the map of March, 1880. That map, standing alone, would indicate that the portion of the Chasey property which it was intended to dedicate to cemetery pur-^ poses was the portion shown on that map only; but this indication is contrary to the apparent intent as shown by the description in the deed from Levice Chasey et ux. to Mary H. Chasey, dated January Slst, 1883, and marked Exhibit JD-5 in this cause, wherein the property is described as “being - the same property whereon the said Charles Chasey now resides, and including Greenlawn Cemetery containing ten acres.” This is an indication to my mind that it was intended that the whole tract, except the residence portion, should be dedicated to cemetery purposes, and this suggestion is further strengthened by the fact that from 1880 down to the present time this whole property, except the dwelling-house and a small plot connected therewith, has been exempt from taxation. The fact of the exemption of the property from taxation must have been known and acquiesced in both by the Chaseys, who owned the land, and by the municipal authorities, wdiose duty it was to subject, it to taxation if not exempt under the law. It could hardly have been exempted without the bnowrledge-of the municipal authorities. It has, therefore, apparently been recognized by the municipal authorities for a period of over forty years that this whole tract, except the dwelling-house plot, was dedicated to cemetery purposes. The assessment of the dwelling-house and plot and the exemption of all the balance of the tract is the strongest kind of evidence of the dedication of the nine and five-tenths acres’ tract to cemetery purposes. This intention to so dedicate it is further borne out by the fact that in 1902 the Chaseys, who were then alive and still the owners of the property, had the unmapped portion of that property mapped and plotted as a part of Greenlawn Cemetery. This action was in conformity with the intention of the owners as previously indicated in the deeds above referred to. Over two hundred and fifty burial plots have been sold from this new map and burials have been made therein. It must have been a notorious fact, impossible of escaping the attention of the municipal authorities, that since 1902 this so-called “addition” was being used as a cemetery and as part of Green-lawn Cemetery. The execution, delivery and recording of two hundred and fifty deeds for plots shown on this new map was, at least, some notice that this portion of the original tract was being used for cemetery purposes. It is impossible to conceive that such a state of facts could exist without the knowledge of those charged with authority to consent to or deny the location of new cemeteries or the enlargement of old. This silent acquiescence by the municipal authorities, first of the township of Eatontown, and, since its incorporation in 1908, of the borough of West Long Branch, for a period of over twenty years in the sale of burial plots and the use of the premises shown on the 1902 map for burial purposes is evidence of the fact that prior to 1902 the property shown on that map was dedicated to cemetery purposes. It will be noted that the deed from Mrs. Chasey to Mr. LaCour in September, 1922, is for certain lots or plots shown on the 1902 map. It is not for acreage. The filing of this map and the sale of burial plots according to that map constituted a dedication of this property for burial purposes if such dedication was not before made. The long delay of the municipal authorities in objecting to this cemetery’s operation and in applying to this court for injunctive relief constitutes, in my judgment, such laches as to bar them from relief now, the claim for which might be said to rest upon technical grounds, because there are no facts here from which this court could find that further interments in this cemetery are “dangerous to public health” within the provisions of P. L. 1885 p. 167 § 8; 1 Qomp. Stat. p. 882 § 29. Eurther interments in this cemetery, so far as is shown by the evidence, would be no more dangerous to the public health than interments in any other of the thirteen cemeteries in this borough. Other cemeteries adjoin or are in close proximity to Greenlawn, which is, apparently, one of the oldest, if not the oldest, cemetery in the borough. Other things being equal, it would seem to be more equitable to oppose future burials in cemeteries of more recent origin than Greenlawn. Eurther changed conditions may, when shown to exist, warrant this court iir enjoining further burials in Greenlawn Cemetery, but the evidence justifying the issuance of an injunction under the provisions of the act referred to must be clear and conclusive. Suffice it to say that the evidence submitted in the case sub judies is too vague and uncertain, and entirely insufficient to warrant the issuance of this extraordinary writ at this time.

Much conflicting testimony has been taken in this cause on the question of the use to which a portion of the property here in question has been devoted for the last twenty years or more. It does not seem to me that this testimony is of very much value in the face of the documentary and other evidence above alluded to. Nor is the fact that a portion of this land, which was not in actual use for burial purposes, was not originally laid out according to a map or plan at all conclusive as against dedication; nor, to my mind, is the fact that the' map of 1902 is marked “Addition to Greenlawn Cemetery,” controlling, especially in view oí the testimony of the engineer who made the map, as to why he placed that wording thereon. In my judgment, the words “enlargement,” “addition” or “extension,” as used in the statute prohibiting such enlargement or extension, are intended to apply only to lands not originally intended for and dedicated to cemetery purposes at the time the original cemetery was laid out. Such additions are usually the result of acquisition by the owners of the cemetery by purchase or otherwise of adjoining lands. But that is not so here. The so-called addition is a part of one undivided tract wholly owned by the person who originally laid out Greenlawn Cemetery.

Erom the evidence submitted in this cause I am unable to arrive at any other conclusion than that the defendant is not creating a new cemetery nor enlarging an old one within the meaning of the act requiring the consent of municipal authorities; nor is the evidence such as to warrant an injunction on the ground that further burials in this cemetery would be dangerous to the public health, nor on the ground of nuisance or any other ground.

As to the rights of the private parties complainant, they, of course, have no standing in this court on this application for an injunction, unless it be on the ground of nuisance. There is no public nuisance shown to exist, and their testimony indicates no special injury to them as private individuals. Morris Railroad Co. v. Prudden, 20 N. J. Eq. 531; Halsey v. Rapid Transit Co., 47 N. J. Eq. 380; Humphreys v. Eastlack, 63 N. J. Eq. 136.

I am of the opinion, therefore, that the injunction prayed for should be denied and that the preliminary restraint made herein should be dissolved.

With reference to the application of the complainant Bruno for an injunction against the defendant to prevent it from selling any of its lands for other than burial purposes, it clearly appears from all the evidence submitted that there has never been any intention on the part of defendant company to do otherwise than this complainant claims it should do. There being no impending violation of the rights of this complainant, he cannot be entitled to injunctive relief, and such relief to him will be denied. Both bills of complaint will be dismissed, with costs.


text:
    Central Union Trust Company of New York, as trustee, &c., complainant, v. Willat Film Corporation et al., defendants.
    [Heard April 20th, 1926.
    Submitted May 17th, 1926.
    Decided June 3d, 1926.]
    1. Under chapter 237 (P. L. 1918 p. 884 § 9) taxes represented by a tax sale certificate are made a first lien on lands against which they are levied and paramount to all prior and subsequent alienations and descents or encumbrances thereon, except subsequent municipal liens.
    2. Under chapter 237 (P. L. 1918 p. 892 §86) a certificate of tax sale is presumptive evidence in all courts of the facts therein recited, and after two years is conclusive evidence, except where the holder thereof obtained the same by fraud or had knowledge of fraud in connection therewith.
    3. The assignee of a certificate of tax sale held by a municipality succeeds to all of the municipality’s rights thereunder, including the right to the priority of lien given the municipality by statute.
    4. Upon the assignment of a tax sale certificate to a stranger by a municipality no previous notice of such assignment is required to those having the right to redeem.
    5. Where a municipality accepts notes or other securities in payment of taxes, the lien of such taxes given by the statute is not waived, in the absence of an agreement to that effect, unless the notes or other securities are paid according to their tenor. The question of such a waiver is one of intention, but that intention will not be inferred. It must appear from clear and convincing proof.
    6. The acceptance of a note for an antecedent debt does not cancel that debt in the absence of an agreement to that effect, unless the note itself is paid upon maturity.
    7. Where tax bills are marked by a tax collector “paid by check and notes,” in the absence of an agreement to the contrary, they will be considered as conditional receipts only, and .will not abrogate the tax lien unless the notes and check are paid.
    8. Where taxes for several years are delinquent and partial payment is made in cash without any agreement respecting the application of such payment, it may be applied ¿by the municipality at its option to the taxes for any one or more years, or as a general payment on account, in which latter event the lien of all taxes is retained until payment is made in full.

      9. Unless it is satisfactorily shown, by clear and convincing proof, that the holder of a tax lien intended by the acceptance of other security to give up the tax lien, that lien is retained in full force and Vigor.
    On bill to foreclose.

      Mr. Edward 0. Stanley, Jr. (of Messrs. Pitney, Hardin & Skinner), for the complainant.

      Mr. Merritt Lane, for the defendants Willat Studios and Laboratories, Inc., and Willat Film Corporation.

      Mr. Howard Mackay (of Messrs. Mackay & Mackay), for the defendants Mark M. Dittenfass, National Evans Motion Film Laboratories and Evans Laboratories, Inc..

      Mr. William H. Osborne, for the defendant Central Union Trust Company, trustee.
   Berry, V. C.

The bill in this cause is filed to foreclose a mortgage made by Willat Studios and Laboratories, Inc., to complainant, as trustee, to secure an issue of bonds amounting to $100,000, all of which are outstanding, due and unpaid, together with interest at six per cent, from October 1st, 1924.

The defendant Willat Film Corporation is the present owner of the mortgaged premises, which are located in the borough of Fort Lee, by virtue of a conveyance from the mortgagor dated November 23d, 1923.

The complainant Central Union Trust Company, trustee, is the holder of a $300,000 mortgage dated December 1st, 1923, and recorded in the Bergen county clerk’s office on December 15th, 1923.

The defendant Mark M. Dittenfass is the holder by assignment of a certificate of tax sale, and a mortgage for $15,000 affecting the mortgaged premises, dated December 1st, 1923, but recorded after the $300,000 mortgage referred to in the preceding paragraph.

The defendants Evans Laboratories, Inc., and National Evans Motion Eilm Laboratories, Inc., are, respectively, the lessee and assignee of the lessee of the mortgaged premises.

Originally a number of insurance companies, were made parties defendant in this cause because of a controversy respecting the application of certain insurance moneys, but the bill was dismissed as to them by consent of counsel and thai controversy was transferred by the parties themselves to the New York courts. There is no dispute as to the amount due on the mortgage which is the subject of this foreclosure. The pnly issue here is as to the priorities between the complainant’s mortgage for $100,000 and the $300,000 mortgage on the one hand, and the tax lien and mortgage of the defendant Dittenfass on the other. The facts pertinent to this inquiry are as follows:

On June 25, 1923, the collector of taxes of the borough of Eort Lee sold the mortgaged premises at tax sale to the borough for delinquent taxes for 1921, amounting to $8,269.07, and executed and delivered to the borough a certificate of tax sale which was duly recorded in the Bergen county clerk’s office on June 28th, 1923. At this time taxes for 1922 and a portion of 1923 were also delinquent. The mortgagor company, which was still the owner of the mortgaged premises, was apparently in financial difficulties, and in November, 1923, a representative of that company applied to the borough for an adjustment of the delinquent taxes ,and outlined a plan of reorganization of the company whereby the defendant Willat Eilm Company was to take title to the .mortgaged premises and also to create a bond issue of $300,000 to be secured by a first mortgage on its property. ,At this time delinquent taxes against the mortgaged premises amounted to approximately $27,000. After some negotiations an agreement was made between the borough official; and the mortgagor whereby the Willat company paid tin borough $9,749.26 in cash and gave the borough five promissorjr notes of $3,000 each, one of which was payable each year for five years, beginning December 1st, 1924, and further executed and delivered to the borough a mortgage for $15,000 covering the same premises, as security for the payment of .these notes, said mortgage being payable in installments as the notes matured. The borough agreed to subrogate this $15,000 mortgage to the $300,000 mortgage above referred to "so as to make the $15,000 mortgage a second lien or encumbrance upon the premises.” There was no written piomorandum of -the agreement between the company and the borough except the minutes of borough council. In the resolution of that body reciting the proposition of adjustment nothing was said respecting the surrender or cancellation of the tax certificate or waiver or surrender of the lien of that certificate or other tax lien; but at the same meeting of council, at which this resolution was adopted, another resolution was also adopted by which the tax collector was authorized to cancel the certificate of tax sale when taxes for 192.1, 1922 and 1923 "be paid on terms set forth in resolution adopted at this meeting.” Upon the receipt of the notes and mortgage, tax receipts for 1922 and 1923 taxes were delivered to the new company by the collector. ' These receipts were marked by the collector, "paid by check and notes.” The certificate of tax sale was never canceled, but was retained by the borough until later assigned to the defendant Dittenfass, as hereinafter mentioned; nor was the arrangement respecting the adjustment of taxes ever fully carried out by the Willat companies, as will hereinafter appear. The notes received from the Willat company were discounted at a local bank and the note due December 1st, 1924, was dishonored on maturity and protested for non-payment. On December 17th, 1924, the borough agreed with the defendant Dittenfass to assign the certificate of tax sale and the $15,000 mortgage to him upon payment by him of the amount due the borough from the Willat companies for delinquent taxes, and Dittenfass deposited $4,000 with the borough under the terms .of that agreement, which deposit was to be returned to him in the event of payment of said taxes by the Willat companies prior to the date fixed for settlement. Pursuant to this agree-meat, on April 15th, 1925, Dittenfass paid to the borough $23,316.30 and the certificate of tax sale and the mortgage •£or $15,000 were duly assigned to him by the borough and the assignments duly recorded. Taxes for 1924 were also ¡paid by Dittenfass. Prior to this assignment, and on Eebjruary 4th, 1925, borough council had, by resolution reciting the default of the Willat company in the payment of notes and taxes, declared the agreement of November 21st, 1923, void. The bill of complaint alleges that the new company, on December 1st, 1923, executed to complainant, as trustee, a $300,000 mortgage to secure a bond issue of that amount, and that bonds of the face value of $19,000 were issued and outstanding under that mortgage. No proof whatever was offered with respect to this allegation, nor was it admitted by any of the answering defendants. The trustee under that mortgage, also a defendant here, has, however, filed a notice, asking that its encumbrance be reported upon. It is probable that this was the $300,000 mortgage referred to in the resolution authorizing the adjustment of taxes, but in the absence of proof it will be disregarded. It is clear, however, that the $300,000 mortgage referred to in the bill of complaint is not a first mortgage as contemplated by the adjustment resolution of November 21st, 1923.

The complainant contends that by accepting partial payment of delinquent taxes in cash, notes and mortgage pursuant to the arrangement of adjustment evidenced by the resolution of borough council in November, 1923, the borough waived its tax lien and substituted therefor the lien of the $15,000 mortgage, which, bjr agreement, was to be postponed to the $300,000 first mortgage above referred to, and that, therefore, whatever claim the defendant Dittenfass has is subsequent and subject to the claim of the complainant, both on the $100,000 mortgage, which is here the subject of foreclosure, and on the $300,000 mortgage to the extent of the bonds issued and outstanding thereunder. I have already noted the failure of proof on the $300,000 mortgage. It is also contended by complainant that the cash payment of $9,749.26, made by the Willat company, should, at all events, be applied to the payment of the amount due on the certificate of tax sale. On the other hand, the defendant Dittenfass claims that the borough never waived or released, and never intended to waive or release, its tax lien, and that when he purchased the certificate of tax sale and the mortgage from the borough he succeeded to all of the borough’s rights, including the right to priority of lien. The complainant concedes that Dittenfass .succeeded to all the borough’s rights, but insists that the priority of lien was gone at the time Dittenfass took the assignment of the certificate of tax sale and mortgage, and that it was a part of the borough’s agreement with the Willat company that the certificate of tax sale was to be delivered up and canceled, and asks that this court now direct the surrender and cancellation of that certificate, and that the defendant be confined to his $15,000 mortgage, and that alone, for his security. The sole question to be determined, therefore, is whether or not, when the borough accepted the notes and mortgage pursuant to the agreement of adjustment, it agreed to waive, and did waive, its tax lien.

I have very carefully considered all of the testimony and other evidence submitted, and am thoroughly convinced that there was never any waiver of the tax lien by the borough, and that there was never any agreement or intention on the part of the borough officials to waive that lien. This thought is emphasized by the resolution of council of November 21st, 1923, which directed the collector to cancel the tax certificate when the taxes for 1921, 1922 and 1923 were paid according to the terms of the resolution authorizing the adjustment. Complainant contends that this was a positive direction of council to the collector to cancel upon receipt of the notes and mortgage, but, in my judgment, it was not. It was only a conditional direction. The taxes were to be paid in installments as and when the notes were paid. If the notes were not paid then the taxes were still alive, and that the bills were marked by the collector “paid by check and notes” is further evidence that payment was not to be considered as complete until the checks and notes were paid. The receipts were no receipts unless the checks and notes were honored. They were conditional only. It is elementary that the acceptance of a note for an antecedent debt does not cancel that debt in the absence of an agreement to that effect unless the note itself is paid. A familiar example of this principle often arises in mechanics’ lien suits where notes are given for materials, but are dishonored before the time for the filing of the lien has expired. The creditor in such case is uniformly, in the - absence of an agreement to the contrary, held not to have waived his right of lien. Dey v. Anderson, 89 N. J. Law 199; Haney-White Co. v. Stafford, 96 N. J. Law 283.

The same principle was involved in Ledos v. Kupfrian, 28 N. J. Eq. 161, where a vendor’s lien was held not to have been waived by the taking of a mortgage in ignorance of a prior existing mortgage. See, also, Shoemaker v. Maloney, 4 N. J. Adv. R. 667.

The fact that the borough retained the certificate of tax sale uncanceled, and that this retention was, apparently, acquiesced in by the Willat companies (there being no evidence of any demand by either of those companies for the surrender or cancellation of the certificate), is strong evidence of the absence of any such agreement as is contended for by the complainant; and it is significant that there is now no contention on behalf of the Willat companies that there was any agreement with the borough for the surrender or cancellation of the tax certificate or for the waiver of the tax lien; nor is there any testimony offered by anyone indicating such an agreement. The court is asked to infer this alleged agreement from the various resolutions of council and from the exhibits and other evidence. It is, perhaps, pertinent to inquire why, if it was a part of the agreement between the borough and the Willat companies that the tax lien should be waived and the certificate of tax sale surrendered and canceled, there was no reference to that fact in the adjustment resolution of November 21st, 1923, and why authorization to the collector to cancel the certificate was the subject of a separate and distinct resolution at the same meeting. If the decision in this cause is to be reached by inference, an inference that there was no such agrément as contended for, is, perhaps, the more justifiable; but I do not feel called upon to rest my decision on inference. The burden of proof here is on the complainant. Under the Tax act the taxes represented by the tax sale certificate and subsequent taxes are, by express words, made a first and prior lien on the property against which levied. P. L. 1918 p. 881/. ch. 287 § 9j 2 Gum. Supp. to Comp. Stat. p. 8527. That section reads, in part, as follows:

“Each and every municipal lien shall be and remain a first lien on such land and paramount -to all prior or subsequent alienations and descents of said lands or encumbrances thereon, except subsequent municipal liens.”

Also, by virtue of section 36 of the Tax Sale Revision (P. L. 1918 ch. 287 p. 892; 2 Cum. Supp. to Comp. Stat. p. 8584), the certificate of tax sale is presumptive evidence in all courts of the facts therein recited and of the title of the purchaser to the land therein described, and after two years such certificate is conclusive evidence, except where the holder thereof obtains the same by fraud or had knowledge of fraud in connection therewith; but in the instant case there is not even a charge of fraud in the bill. Nor is there any evidence from which fraud could be found. So far as appears from the evidence the defendant Dittenfass was an entire stranger to the Willat companies, and had no knowledge whatever of the transactions between those companies and the municipality nor of their terms. He might very well claim protection as a bona fide purchaser for value without notice. It seems to me that the whole of complainant’s case with respect to this issue of priority is based upon suggestion and inference, but, as already intimated, the priority of the tax lien cannot he removed by inference. Municipal rights are not abrogated by inference. Nothing short of clear and convincing proof of waiver or agreement of waiver will warrant this court in pronouncing as non-existent a lien which the legislature has so plainly and expressly said the municipality shall have. "With respect to the contention that the cash payment made by the Willat company on December 1st, 1933, should be applied to the payment of the amount due on the certificate of tax sale, and that the certificate be surrendered and canceled because of such payment, the answer is that the amount then due on the certificate of tax sale was not only the amount due for 1931 taxes, because of which the sale.was had, but was the amount mentioned in the certificate, plus interest and costs and plus subsequent taxes and interest, which, according to the evidence submitted, amounted at that time to, approximately, $37,000. There appears to have been no agreement between the parties as to the application of this cash payment. It was, therefore, optional with the borough to apply it as it saw fit. It might have .been applied by the borough to the payment of taxes for some particular year, or it might have been applied generally, and from all that appears in this case it was applied generally. The complainant suffered no injury by this payment being made by the mortgagor. Rather was the complainant benefited to the extent of the cash payunent, as otherwise the complainant would have had to pay it in order to protect its mortgage. There was, therefore, no obligation on the part of the borough to surrender and cancel the certificate of tax sale by reason of the cash payment. In the brief submitted on behalf of the complainant it is contended that, in effecting the. adjustment of taxes, as evidenced by the resolution of council of November 31st, 1933, the borough “made an election to rely upon the security afforded by the mortgage rather than upon the statutory tax lien.” I am of the opinion that there was no election. See Shoemaker v. Maloney, supra. Counsel for complainant concedes that election is a question of intention. I have already indicated my conclusion as to the intention of the parties as evidenced by their acts. It will also be noted that in the aspect for which the complainant contends the borough would have postponed its tax lien and mortgage to a first mortgage of $100,000 and a second mortgage of $300,000, thereby constituting the tax-lien and mortgage a third lien, whereas the agreement as evidenced by the resolution of November 21st, 1923, was that the $15,000 mortgage alone was to be subrogated to the $300,000 mortgage, so as to constitute the $15,000 mortgage a second lien. There was never any agreement to make it a third lien, notwithstanding that the aggregate amount due on the two prior mortgages might now be less than the $300,000 mortgage in contemplation, nor was there any agreement to postpone the tax lien. Complaint is also made that the assignment by the borough to Dittenfass was made without notice to complainant or without notice to Willat companies. I know of no legal requirement for such notice, and neither the complainant’s nor the mortgagor’s rights of redemption were in any way abridged by this assignment. Complainant further contends that if the priority of the tax lien is not abrogated, and that lien postponed to its mortgage and also to the $300,000 mortgage, then the mortgagor will have had nothing in return for its cash payment of $9,749.26 made on December 1st, 1923, and argues that this is an indication that there must have been an agreement between the parties for the waiver of the tax lien. But the argument is based upon a false premise. The mortgagor obtained a number of advantages as a result of this payment, among which may be mentioned the privilege of paying the balance of the delinquent taxes in installments extending over a period of five years; the interest rate on the delinquent taxes was thereby reduced from eight per cent, to six per cent.; the right to the possession of the property against which the taxes were levied was reserved to the mortgagor, and, incidentally, the right to the rents, issues and profits. Without this agreement the borough would have had the right to immediate possession by virtue of its tax sale certificate, including the right to the rents and profits.

But what the complainant is really asking here is, in effect, that the borough he forced to specifically perform an agreement in accordance with the complainant’s conception of its terms, although the complainant was not a party to that agreement, without requiring complete performance by the other contracting party whose “complete” failure has already been noted. It is conceded in complainant’s brief that the (authorities make it perfectly clear that unless it is satisfactorily shown that a lienholder intended by the acceptance of other security to give up the lien of the first security, the first lien is retained in full vigor. That, to my mind, expresses the theory of this ease in a nut shell. I can find no evidence from which the court would be justified in finding the intention on the part of the borough of Eort Lee to surrender its tax lien, but, on the other hand, the evidence thoroughly convinces me that there never was any such intention of waiver or surrender, and that no such waiver or surrender was made; and that, therefore, the original tax lien remains in full force and vigor, and that the defendant Dittenfass is entitled to priority on his claim to the extent of the moneys paid by him to the borough, with interest, over the complainant’s mortgage. I will advise a decree in accordance with these conclusions.


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    Republic Casualty Company, a corporation, complainant, v. Lena Fischmann et al., defendants.
    [Argued July 20th, 1926.
    Decided July 26th, 1926.]
    1. The essential requirements of a good bill of interpleader are— (1) the same thing, debt or duty must be claimed by both or all the parties against whom the relief is demanded; (2) all of their adverse titles or claims must be dependent or be derived from a common source; (3) the person asking relief must not have nor claim any interest in the subject-matter; (4) he must have incurred no independent liability to either of the claimants. It is not necessary that the rights of the respective claimants be derived from the stakeholder or custodian of the fund.

      2. In this case it appears that the claims of the defendants are derived from a common source, and the bill will not be stricken out.’
    On bill, &c. On motion to strike out.

      Messrs. Silberman & Grosman, for the motion.

      Mr. J. Harry Henegan, conlra.

   Berry, V. C.

On June 4th, 1936, a judgment was entered in the Essex county circuit court in the sum of $3,458.44 against the complainant and in favor of Lena Eischmann and Samuel A. Eischmann, in an action on a contract of burglary insurance. On the same day, Samuel A. Eischmann assigned to Lena Eischmann all his right, title and interest in that judgment, and notice of said assignment was immediately served upon complainant. Lena Eischmann claims to be entitled to receive the entire amount due on this judgment, both in her own right and by virtue of said assignment. On June 14th, 1936, execution was issued out of the second district court of Newark on a judgment obtained by the defendant Lustbader against Samuel A. Eischmann, and levy under this execution was made on Samuel A. Eischmann’s rights and credits in this fund, and an order was made by the said district court directing complainant to show cause why the execution should not be paid out of the fund in its hands. Numerous other executions under judgments against Samuel A. Eischmann were issued and levies made thereunder on the same fund, and rules to show cause likewise issued, whereupon complainant filed this bill asking ’ permission to pay the amount due on the judgment into this court, alleging his inability to determine to whom the fund belongs, and asking, that the several defendants be required to interplead. This motion is made on behalf of Louis Lustbader, one of the defendant judgment creditors of Samuel A. Eischmann. In support of the motion it is argued that the bill should be dismissed, first,' because there is no privity between the claimants, their titles are independent and not derived from a common source; and second, that the assignment from Samuel A. Eischmann to Lena Eischmann is void, because it is a contract between husband and wife, and that Lena Eischmann took no rights thereunder.

The second point urged may be first disposed of by the statement that the validity of this assignment is not here in issue, and the facts and circumstances upon which the argument of counsel on this point is based are not properly before the court; and aside from this, the assignee claims to be entitled to the fund irrespective of the assignment.

The essential requirements of a good bill of interpleader are—

1. The same thing, debt or duty must be claimed by both or all the parties against whom the relief is demanded.

2. All of their adverse titles or claims must be dependent or be derived from a common source.

3. The person asking the relief — the plaintiff — must not have nor claim any interest in the subject-matter.

4. He must have incurred no independent liability to either of the claimants — that is, he must stand perfectly indifferent between them in the position merely of a stakeholder. Pom. Eq. §§ 1822, 1464; see, also, Fletch. Eq. Pl. & Pr. § 773.

That the first, third and fourth of these essential requirements are fulfilled in the instant case is not denied. The argument in favor of the first point in support of this motion seems to be based upon the idea that the second of these requirements contemplates that the rights of the respective claimants to the fund must be derived from the stakeholder or -person who has custody of the fund claimed, and the case of Rowe v. Gouse, 2 N. J. Mis. R. 829, is cited in support of this argument. According to Pom. Eq. §§ 1824, 1468, referred to by Vice-Chancellor Bentley in the above case—

“A second requisite is, that the adverse title of the claimants must be connected, or dependent, or one derived from the other, or both derived from a common source. It is not every instance of conflicting claims against a person for the same thing, debt or duty which will entitle him to the remedy of an interpleader. Where there is no privity between the claimants, where their titles are independent, not derived from a common source, but each asserted as wholly paramount to the other, the stakeholder is obliged, in the language of the authorities, to defend himself as well as he can against each separate demand; a court of equity will not grant him an inter-pleader.”

With this principle I am in entire agreement, but, as I understand the rule, it is not necessary that the rights of the respective claimants be derived from the stakeholder or custodian of the fund. Fletch. Eq. Pl. & Pr. (note); Ireland v. Kelly, 60 N. J. Eq. 308; Lapenta v. Lettieri, 72 Conn. 377; 44 Atl. Rep. 730.

A familiar example of this rule is found in the inter-pleader suits instituted in mechanics’ lien cases, where, in most instances, the claims to the fund are not derived directly from the stakeholder. It is sufficient if the claim or title comes to or is derived from one who has a claim against the complainant or who is in privity of contract with him. Pom. Eq. Jur. §§ 1327, 1477 {note); Briant v. Reed, 14 N. J. Eq. 271.

In the instant case the title or claim of the defendant Lena Eischmann, at least, to a portion of the amount due on the judgment, is derived from her husband, Samuel A. Eischmann, by virtue of the assignment above referred to. The title or claim of the judgment creditor defendants is also derived from Samuel A. Eischmann. The claims of these defendants are directed against the interest of Samuel A. Eischmann only, which is the same interest in the fund claimed by Lena Eischmann under the assignment. The rights of all the defendant are therefore derived from a common source within the meaning of the rule. I am unable to distinguish the present case in principle from Lozier v. Van Saun, 3 N. J. Eq. 325, and Leber v. Ross, 92 N. J. Fq. 535. The motion to strike out the bill and to dissolve the restraint imposed by the order to show cause herein will be denied.


text:
    William Russell Johnson and Howard Matthews, executors of the last will and testament of Kate A. Miller, petitioners, v. Amanda F. Talman and Randolph G. Talman, her husband; Alta K. Johnson and Augusta Matthews, defendants.
    [Decided August 18th, 1926.]
    1. Where executors under a will have entered into a contract for sale of land, they have a right to a decree declaring the rights of the parties to the land.
    2. Under the terms of the will involved, the children .of the testatrix are seized in fee of the premises in question, subject to a power of sale in the executors.
    3. The word “bequeath,” when expressly applied to real estate, may be construed as equivalent to the word “devise.”
    On petition. On pleadings and agreed state of facts.

      Messrs. Stolces, McDermott & Hartshorne, for the petitioners.

      Mr. Ward Kremer, for the defendant Randolph G. Talman.
   Berry, V. C.

This petition is filed under the Declaratory Judgments act (P. L. 19BJ¡. p. SIB ch. HO), and prays a decree declaring the rights of the parties complainant and defendant with respect to certain lands therein described, and this involves the construction of the will of Kate A. Miller, who died on March 7th, 1915, seized of the premises in question. The only section of the will which is pertinent to this issue is as follows:

“First. After all my lawful debts are paid, I give, and bequeath to my husband during his life and so long as he shall remain a widower, the use oí all the rents, issues, profits of property situated in the township of Neptune, Monmouth county, known as 107 South Main street, consisting of one house and lot fronting on South Main street, and two houses in rear on said lot, and all the household and personal goods, and after his decease or remarriage, I give and bequeath the same to my three children, Howard MJatthews, Amanda G. Taiman, Alta K. Johnson, if they should be living at the time of the decease or remarriage of my husband, William JR. Miller, and if any of the above-named children should be deceased at the time of his death, then their share to go to their children, and after his decease or remarriage, I direct my executors to sell the same and divide between my children equally as mentioned above.”

The petitioners are executors of this will. They have entered into a contract for the sale of the premises in question. The right of the petitioners to a decree declaratory of the rights of the parties other than the defendant Bandolph 6. Taiman is not disputed. There would seem to be no question as to the right of the petitioners to such a declaratory decree under the act referred to. Indeed, such a decree might have been had under the Chancery act. P. L. 1915 p. 184 § 9. See In re Ungaro, 88 N. J. Eq. 25.

The defendants Amanda G. Taiman and Alta K. Johnson are two of the children of testatrix referred to in the clause of the will above quoted. The defendant Bandolph G. Taiman is me nusDana ox Amanda G. Taiman, and claims to be the lessee of the premises in question. The defendant Augusta Matthews is the wife of the petitioner Howard Matthews, who is one of the three children of testatrix named in said clause of the will.

In my judgment, Howard Matthews, Amanda G. Taiman and Alta K. Johnson, the three children of the testatrix, are seized in fee of the premises in question, the life estate having terminated on the death of William B. Miller. The word “bequeath,” when expressly applied to real estate, is equivalent to the word “devised,” and words of inheritance are unnecessary under 4 Comp. Stat. p. 5878 § 86. Campbell v. Cole, 71 N. J. Eq. 327; Society v. Lake, 72 N. J. Eq. 808. The estate of Howard Matthews, Amanda G. Taiman and Alta K. Johnson, however, is subject to the power of sale given to the executors, and a sale by the executors under the terms of the will is mandatory.

This court is also asked to declare the rights of the defendant Randolph G. Taiman as lessee, but there is nothing before the court on which such rights could be determined, even if it were proper for the court on this application to determine those rights. There is no issue here involving the right of possession of this defendant. Whatever rights this defendant has are properly determinable in a court of law, as it does not appear that his rights as lessee are involved in the contract of sale.

I will advise a decree in accordance with these conclusions.