author: Gummere, Chiee Justice. ■

text:
    Marie O. Loch v. Herman Muetz et ux et al.
    [Decided March 3d, 1924.]
    1. The holder of a mortgage upon premises which are afterward made the subject of a resulting trust is not affected thereby, so far as his right to foreclose his mortgage, because of the default in the payment of the mortgage debt is concerned; and notice of the existence of such trust, not given to him until after the sale of the mortgaged premises has been decreed in a suit instituted by him for the foreclosure of his mortgage, does not operate to limit his right to enforce such decree by a sale under the fi. fa.

    2. The title of a purchaser at a valid foreclosure sale is not affected by the fact that prior to such sale he had learned that the record owner of the mortgaged premises held them subject to a resulting trust which had been created subsequent to the making of the mortgage under which the sale was had. The rights of the beneficiaries of such trust are extinguished by the sheriff’s deed, notwithstanding such knowledge on the part of the purchaser.

      On appeal from decree in chancery advised by Yice-Chancellor Lewis, whose opinion is reported in 91¡. N. J. Eq. 615.

      Mr. Charles L. Camele, for the appellants.

      Mr. J. Emil Walscheid, for the respondent.
   The opinion of the court was delivered by

Gummere, Chiee Justice. ■

The bill in this ease was filed to establish a resulting trust in two separate parcels of land located in the town of Wee-ha wken. The hearing resulted in the establishment of the trust. The evidence justified the vice-chancellor in finding the following facts: That the complainants father, Charles L. Gerdts, on May 5th, 1898, purchased a tract of land known in the case as the Boulevard lots, from one Samuel E. Renner, and took title thereto in the name of one Herman Muetz, the purchase money having been paid by Gerdts; that this property was conveyed to Muetz subject to a mortgage of $5,500 thereon and held by one Charles F. Ebsen; that in March, 1902, Gerdts purchased another piece of property from Renner, known in the case as the Duer place tract, and paid the purchase money for it; that the deed for this second tract was also taken in the name of Muetz; that Muetz held these two tracts, charged with a resulting trust in favor of Gerdts, although no declaration of trust was ever executed.

Further material facts, which are undisputed, and which are necessary to be considered in the determination of this appeal, are as follows: In January, 1905, Muetz executed a mortgage on the Duer place tract to one Louisa M. Heinrich-sen for $1,000, and the complainant admits that this mortgage constitutes a valid lien upon this tract. In March. 1920, Gerdts died, after an illness of many years, leaving as his heirs-at-laws the present complainant and a son, Charles, who died in 1921, leaving an infant son. In July, 1920. Muetz absconded, being at that time heavily indebted, and two of his creditors, Dora B. Wettlaufer and Eliza Yutte, brought a suit in attachment against him, and recovered a judgment therein for the sum of $19,538. In the latter part of 1920 bills were filed by the respective holders of the mortgages above mentioned for the foreclosure thereof, and Wettlaufer and Yutte were made defendants in each of these suits as the holders of apparent liens upon the mortgaged premises. A decree in foreclosure was entered in each of these proceedings in May, 1921. After the entry of these decrees, but before a sale under either of them, the present complainant, acting for herself and her nephew, notified the respective complainants in the foreclosure suits that she and her nephew, as t'he_ heirs-at-law of her deceased father, claimed to be the equitable owners of the premises covered by the mortgages, and were entitled to be heard in the foreclosure suits upon the question of the validity of the lien of the Wettlaufer and Yutte judgment, her contention being that the equitable title of her father’s heirs-at-law was not subject thereto. On June 9th, 1921, notwithstanding the notice that had been given, these two properties were sold under the foreclosure proceedings. The purchasers of the Boulevard tract were Wettlaufer and Yutte, the property being struck off to them for the price of $16,000. The Duer place tract was sold for $6,700 to a party not interested in the litigation, but the sale was never confirmed, the purchaser refusing to take the property because of the complainant’s claim, and being subsequently relieved of his bid by the court.

On the facts above recited the vice-chancellor concluded that neither the several mortgagees nor the two judgment creditors of Muetz were in a position to object to the enforcement of the resulting trust; that the holder of the Ebsen mortgage could not extinguish that trust, so far as it affected the Boulevard tract, by a foreclosure suit; that the judgment creditors, assuming that they had an apparent lien upon the property, could not enforce it against the paramount right of the complainant, and that, consequently, they held the Boulevard tract, which they had purchased at the sheriff’s sale, subject to the resulting trust in favor of the complainant and her coheir-at-law. He further held that the complainant and her coheir were entitled to have their rights under the resulting trust confirmed as to the Duer tract; to hold the same free from any claim of the defendants, Wettlaufer and Yutte, and to redeem the same from the lien of the Heinrich-sen mortgage.

We concur in the view expressed by the vice-chancellor in relation to the rights of the parties so far as the Duer tract is concerned, and affirm the decree to that extent. We dissent, however, from the view expressed by him with relation to' the respective rights of the complainant, of the holder of the mortgage upon the Boulevard tract, and of the purchasers of that tract under the foreclosure sale thereof. The mortgage upon that tract was a lien thereon prior to the purchase thereof by Gerdts and the making of the deed to Muetz, and, consequently, neither the original holder of the mortgage, Ebsen,' nor his legal representatives (he having died prior to the institution of the present suit) were at all affected by the subsequently created resulting trust and their right to foreclosure of the mortgage upon default could not be prejudiced thereby. It is not claimed that Ebsen or his legal representatives had any knowledge of the existence of that trust prior to or at the time of the filing of the foreclosure bill or of the entry of the final decree, and, consequently, their right to a sale of the mortgaged premises could not have been affected by reason of their failure to make the complainant a party to the foreclosure proceedings. It may be conceded that the holder of this mortgage would have been compelled to cancel it or assign it to the complainant prior to the foreclosure sale upon being paid the principal and interest due thereon; but no such payment was offered to be made. In this situation the foreclosure sale was a perfectly valid one and the title to the mortgaged premises passed to the purchaser at that sale entirely unaffected by the trust. That this would have been the case if Mr. X or Mr. Y had been the purchaser cannot be doubted. The fact that the purchaser was a judgment creditor of Muetz, claiming to have a lien upon the mortgaged premises is immaterial; nor did knowledge of the existence of the trust, acquired before the sale, disqualify her as a bidder. The sale was open to the world, and the right of the holder of the mortgage to have the property struck off to the highest bidder could not be affected by an unsubstantial claim on the part of such bidder that she was entitled to share in the distribution of the proceeds of the sale, or by previous knowledge on her part of the existence of the trust. The effect of the sale was not to destroy the trust, but to shift it from the land itself to so much of the purchase money as remained after satisfying the principal of the mortgage debt, with interest thereon and the costs of the foreclosure.

We conclude, therefore, that so much of the decree as impresses a trust upon the Boulevard tract in the hands of the purchaser at the foreclosure sale must be reversed, together with such other parts of the decree as are based upon that adjudication.

For affirmance—None.

For reversal—None.

For modification — Ti-ie Chief Justice, Trenchard, Parker, Minturn, Kaliscii, Black, Katzenbaoh, Campbell, Heppenheimer, Gardner, Van Buskirk, Clark— 12.


source: Caselaw Access Project

author: Gummere, Cttiee-Justice.

license: Public Domain

text:
    Hugo Roseberg v. American Hotel and Garden Company et al.
    [Decided March 3d, 1924.]
    1. The taking of an appeal from an injunction order granted by the court of chancery prevents such order from being subsequently revoked or modified by that court during the pendency of the appeal.
    2. A defendant who, after 'being enjoined by the court of chancery from disturbing the .complainant in his possession of a leasehold estate until that court shall otherwise order, institutes an action of ejectment against the complainant for the purpose of ousting him from that possession is guilty of a contempt of that court, notwithstanding that prior to the institution of such action he has appealed from the enjoining order and that such appeal has not been disposed of.
    On appeals from three several orders of the court of chancery advised by Vice-Chancellor Ingersoll.

      Mr. John G. Reed and Mr. Clarence L. Gole, for the appellants.

      Mr. William E. Brown, Jr., and Mr. Emerson Richards, for the respondent.
   The opinion of the court was delivered by

Gummere, Cttiee-Justice.

The bill in this case was filed for the purpose of obtaining an injunction restraining the present appellants the American Hotel and Garden Company and J. G. McCrory Company from disturbing the complainant in, or otherwise interfering with, his possession or enjoyment of a Certain store and premises held by him under a lease made by the American Hotel and Garden Company to him for a term of three years from January 1st, 1922, at an annual rental of $5,000. Upon the filing of the bill and the affidavits annexed thereto, an order was made requiring the defendants to show cause why a preliminary injunction should not be granted in accordance with the prayer of the bill, and upon the return of that order, and after a consideration of the- affidavits submitted by the respective parties, the court “ordered that until the final hearing of this cause, or this court shall otherwise order, the defendants and each of them, their and each of their agents, servants and workmen, be and they are hereby enjoined and restrained from removing the complainant from or disturbing him in or otherwise interfering with his possession or enjoyment of the store and premises,” &c.

The principal appeal now before us is directed at this restraining order. It is enough to say, in disposing of it, that' we fully concur in the views expressed by the learned vice-chancellor in the opinion filed by him, and affirm the order upon that opinion.

Pending the appeal just referred to, the defendants applied to the court of chancery to dissolve the injunction because of certain facts which, they alleged, had arisen since the making of the restraining order. Upon the hearing of this application, the vice-chancellor considered that the facts upon which it was rested had not been satisfactorily proved, and for this reason dismissed the application. The defendants thereupon appealed to this court from the order of dismissal. We concur in the action of the court of chancery now complained of, but not for the reason upon which it was based. The appeal from the order directing the injunction removed that order to this court for its consideration and determination of the question of its validity. The effect of filing that appeal, as is pointed out in our decision in Pennsylvania Railroad Co. v. National Docks Railway Co., 54 N. J. Eq. 647, was to prevent the order from being so dealt with subsequently by the court of chancery as to destroy or impair the subject of the appeal. As was said in the cited case, to concede the existence of such a power in the court of chancery “would be wholly inconsistent with the paramount cognizance given to this court over the subject of the appeal. By acceding to such a doctrine this court would abnegate the greater part of its authority, in this domain, vested in it by the legislature and the constitution.” If the defendants desired to obtain from the court of chancery a dissolution of the injunction there ordered, the only way in which they could accomplish that purpose was to have dismissed the appeal by which the order was removed into this court, prior to mailing the application for the relief sought.

For the reason stated, the order refusing to dissolve the injunction will also1 be affirmed.

The .third appeal is from an order adjudging the defendant the American Hotel and Garden Company in contempt by instituting an action of ejectment against the complainant, the purpose of which was to oust the complainant from the possession of the premises involved in this litigation. The court of chancery held that, by instituting this proceeding, the appellants had violated the mandate of the restrain■,ng order, and, consequently were guilty of the contempt charged against them. We have no doubt as to the soundness of this conclusion. The fact that the injunction order has been appealed from did not suspend its operation pending the appeal. So long as it remains unmodified or unreversed, it is binding upon the parties, and a violation of any of its provisions renders the violator subject to punishment as a contemnor. That the institution of the ejectment suit was a violation of that provision of the order which restrained the appellants from “removing the complainant from, or disturbing him in, or otherwise interfering with his possession and enjoyment of his leasehold estate,” is too plain for discussion. It is argued that this mandate is broader than was justified by the prayer of the bill, and improperly deprived the appellant of an undisputed legal right, and that, therefore, it was warranted in disregarding the order to that extent. Assuming the fact to be as stated, the conclusion is conspicuously a non sequUur. The remedy of the appellant was either to apply to the court of chancery, before taking an appeal, to modify the restraint to the extent indicated, or, after appeal taken, to attack the alleged unwarranted provision in the court of review.

We conclude, therefore, that this latter order should also be affirmed.

In each of the three appeals:

For affirmance—The Chief-Justice, Trenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Heppenheimer, Gardner, Van Buskiek, Clark—12.

For reversal—None.


author: Trenchard, J.

text:
    Irmgard Berger and Isolde Berger, by next friend, complainants-appellants, v. D. Frederick Burnett, executor, et al., defendants-respondents. Irmgard Berger and Isolde Berger, by next friend, complainants-respondents, v. D. Frederick Burnett, executor, et al., defendants-appellants.
    [Arguecl December 3d, 1923.
    Decided March 3d, 1924.]
    1. The life tenants of the residuary estate, who are dependent minor 'Children of the testator, are entitled to the income from such residuary estate from the date of the testator’s death.

      '2. The residue of a testator’s estate is what is left after the payment of all debts, legacies, expenses of administration, and other proper charges and commissions.
    8. The cases of Outealt v. Appleby, 36 N. J. Eq. 73, and Green v. Green, 30 N. J. Eq. 451, criticised.
    4. Where there is a gift by a testator of a life interest in the resiidue of his estate, the interest on debts of the testator accruing after his death should be charged against and paid out of the income of his gross estate.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Church, whose opinion is reported in 121 Ml. Rep. 770.

      Messrs. Lum, Tamblyn & Golyer (Mr. Ralph R. Lum on the brief), for the complainants.

      Messrs. Burnett, Sorg, Murray & Duncan (Mr. H. Theodore Sorg on the brief), for the defendants.
   The opinion of the court was delivered by

Trenchard, J.

The bill of complaint and answer were designed to obtain tiie instructions of the court with respect to questions arismg under the last will and testament of Carl Berger, who died June 15th, 1930.

In and by his will he directed the payment of his debts and after certain specific devises and bequests gave all the rest, residue and remainder of his estate to his executors and trustees in trust to divide the corpus into two equal funds to be known as the Irmgard and Isolde trust funds, respectively, and to pay the net income from the respective funds to his children Irmgard and Isolde for life with remainder over in each case to others. Both children were infants and dependents at the time of testator’s death.

Because of the manner in which the assets of the estate had been invested by the testator, it was impossible to liquidate tbe assets and pay the debts for a period of approximately three years following the testator’s death.

Complainants, who are the children of the testator and the life tenants of the residue (by next friend), insist that they are entitled to the income on the entire corpus of the estate (and the undistributed balances thereof as pajonents were made therefrom from time to time) accruing since the date of the testator’s death.

Defendants, who are the executor and trustees under the will, contend that the complainants are entitled to the income only on the residue of the estate from the testator’s death, and that that residue consists of what is left after payment of debts, legacies, administration expenses, &c., and is to be determined in the manner set forth in the answer.

The conclusions of the court below agreed with defendants’ contention on the question of law as to what constitutes residue but differed on the question of fact as to how the residue was to be calculated.

Complainants appeal from the entire decree.

Defendants appeal only from that part of the decree which fixes the mathematical basis for calculating the residue as a matter of fact.

No doubt the life tenants of the residuary estate, being dependent minor children of the testator, are entitled to the income- from such residuary estate from the date of the testator’s death. Welsh v. Brown, 43 N. J. L. 37.

The question still remains, however, as to what constitutes the residue of the estate. ■

In Frelinghuysen v. New York Life Insurance and Trust Co., 31 R. I. 150; 77 Atl. Rep. 98, the court said: “There could, of course, be but one residue—-that which was left after the payment of debts, legacies, specific and general, and satisfying the other specific gifts.”

In re Rowland’s Trustees, 87 N. J. Eq. 307; 101 Atl. Rep. 52, Vice-Ordinar3r Baches, in commenting on the fact that the “residue” of the estate cannot be deemed to include the amount which is subsequently required to pay debts, legacies and other charges, says. “It is clear that the tenant for life [of the residue] ought not to have- the income arising from what is wanted for the payment of debts because that never becomes residue in any way whatever.”

It seems perfectly clear that as a matter of law the residue of the testator’s estate is what is left after the payment of all debts, legacies, expenses of administration and other proper charges and commissions.

It remains to consider the statement in the case of Outcalt v. Appleby, 36 N. J. Eq. 73, which counsel for complainants quotes as follows:

“It is the rule that where the residuary estate is given to a legatee for life, the interest which accrues thereon from the time of the death of the testator, shall, in the absence of any direction to accumulate or any other direction to the contrary, and if not required for the payment of delis and legacies, go to the life tenant.”

Counsel argues that the court is pointing out the one case where income on the residuary estate may be applied to the payment of debts and legacies. It does seem that such statement is capable of that construction. It is, however, merely dictum. Moreover, it is erroneous, as appears upon examination of the authorities on which it is based. We find no case in this country or England which ever actually applied any such rule that the income on the residue can be applied to payment of debts of the testator. It is a self contradiction since “residue” means what is left after debts are paid and hence, there would be no debts toward the pajunent of which the income on such residue could be applied.

Now, by reference to the opinion in Outcalt v. Appleby we see that the court there bases that statement on two authorities: 2 Rop. Leg. 1322j Green v. Green, 30 N. J. Eq. 451. Reference to Green v. Green discloses that there, likewise, the point was not in issue and there, too, the court gives as its authority 2 Rop. Leg. 1322. Referring to Rop. Leg. 1322, 1332, we find that the author made that statement on. the basis of three English cases, namely, Hewitt v. Morris, 1 Turn. & R. 241; La Terriere v. Bulmer, 2 Sim. 18, and Angerstein v. Martin, 1 Turn. & R. 233, and the last named being tbe original authority for both Hewitt v. Morris and La Terriere v. Bulmer. In the original case of Angersiein v. Martin, supra, the only statement made by Lord Eldon having anything to do with the point, and which doubtless is the source of Mr. Roper’s inaccurate conclusion, is the following: “I think, with respect to the interest of so much of the personalty, bearing interest, as is not necessary to be applied for the payment of debts or legacies, the tenant for life is entitled to it from the death of the testator.” Clearly, what Lord Eldon is there saying is that the interest on so much of the personalty (i. e., corpus) as is not required for the payment of debts or legacies goes to the life .tenant. In other words, the court did not say that the income is to be applied to the payment of debts, but so much of the personalty—corpus itself—as is needed for the payment of debts is first to be applied and that then the income on the residue goes to the life tenant. That is exactly in accord with the views of the court below on that phase of the instant case and in harmony with our own views upon that point.

But the mathematical formula adopted by the court below is a new method of calculating residue in which we cannot concur.

In calculating residue as a practical matter we believe that due consideration must be given to the complications of present-day conditions. To the complications inherent in present-day trusts themselves must be added the complications of recent federal and state inheritance taxes, and fed^ eral income taxes, and the necessity of the disposal without sacrifice of widely differentiated investments made by testators, from all of which a situation often results where instead of winding up the estate within the normal period of one year following testator’s death, several years may necessarily pass before final accounting, taxing the ability of the most experienced executor.

In view of the fact that no pronouncement has ever been made on the subject by this court, there is nothing to prevent the adoption of a method of calculation that is both simple and fair in view of present-day conditions.

Now it is an elementary proposition that where there is a gift to B for life of the equity of redemption of real estate, that B, the life -tenant, is entitled to the income from the life estate subject to payment of interest on the encumbrances. And ordinarily a life tenant of property subject to encumbrances must keep down the interest accruing on such encumbrances during tire continuance of his estate, at least to the extent of the income or rental value of the property.

Similarly, where there is a gift by a testator of a life interest in the residue of his estate (i. e., his equity after payment of debts, &c.) the interest on debts of the testator accruing after his death should be charged against and paid out of the income of his gross estate.

Such a rule would require no complicated calculations. If the income on the gross estate for a given period amounted to $5,000, and the interest on the debts, &c., for the same period amounted'to $2,000, the life tenant would‘receive the difference of $3,000 as income for that period.

Again, the life tenant would always know exactly what income he could count on, for it could be determined at a moment’s notice what interest was accruing on the debts and legacies.

Under the method of calculation adopted by the court-below, it is first necessary to ascertain what the total debts, legacies, administration expenses, &c., will amount to before the ratio can be ascertained for determining what portion of income shall be applied toward the debts, &c. Under the method herein adopted, no such delay would ensue. It would be applicable whether the estate were wound up in one year or five years. As each payment was made from day to day on account of debts &c., the interest accrued thereon since testator’s death would be charged against the income accrued on the total estate. The balance would go to the life tenant.

It' might be that in some isolated instance either the life tenant or remainderman might pay a larger sum than under other methods. For example, if the gross estate produced less income than the debts carried interest, the life tenant would temporarily suffer until the difference were made up. On the other hand, if in a given case the debts or legacies carried no interest, then the life tenant would be the gainer, for he would then get all-the income on the gross estate. Any hardship that might be caused in such occasional instances, however, would be more than compensated for by the facility of handling all estates however involved and the certainty at all times on the part of the life tenant as to just what income he might expect.

The above method was adopted in Neide’s Estate, 22 Pa. Dist. 563 (overruling the earlier case of Patterson’s Estate, 3 Pa. Dist. 796). In Neide’s Case the testator left the residuo of his estate to A for life. The estate consisted of $235,000 in securities which the testator had pledged for loans. It was held that the life tenant must pay the interest on the loans out of the income on the securities.

We believe that the foregoing observations in effect dispose of every question properly presented by the two appeals from the decree below.

The result is that the decree below must be modified in accordance with the views herein expressed, and as so modified, will be affirmed.

For affirmance and modification (both appeals)'—The Chief-Justice, Tren chard, Mintuen, Kalisch, Black, Katzenbach, Campbell, Gardner, Van Buskikk, Clark —10.

For reversal—None.


author: Trbnchard, J.

text:
    Ella Remond, petitioner-appellant, v. Charles G. Remond, defendant-respondent.
    [Submitted December 10th, 1023.
    Decided March 3d, 1924.]
    1. Wlhen the two-year period of desertion made by the statute a ground for divorce has once elapsed, the desertion becomes permanently established, and its character continues until the filing of the petition, unless sooner brought to an end by the act of the injured spouse.
    2. The fact that in a prior suit by the husband, his i>etition for divorce, and the cross-petition of his wife, were dismissed by the court of chancery, is no bar to the wife’s later action for divorce, it appearing that such dismissal was without prejudice.
    3. The fact that, after the husband’s prior suit for divorce had been dismissed by the court of chancery, he took an appeal before the present suit was bi-ought by his wife, is no bar to the present action, it appearing that the appeal was dismissed nunc pro tunc, as of a date prior to the filing of the petition in the present case.
    On. appeal from a decree of the court of chancery.

      Messrs. William St. John Tozer and W. Ludlow James, for the appellant.
   The opinion of the court was delivered by

Trbnchard, J.

On October 10th, 1919, Ella Remond, the present appellant, filed a petition in the court of chancery for divorce from her husband upon the ground of desertion. The petition charged the defendant with having deserted the petitioner in the month of April, 1913, ever since which time, and for more than two years then last past, the defendant had will-full]', continuedly and obstinately deserted the petitioner.

The defendant filed no answer and entered no appearance.

Tbe special master, to whom the case was referred, took proofs, and found, among other things, such charge respecting desertion to be true, and reported that a decree for divorce should be granted.

But the advisory master considered that “under the rule laid down in McLaughlin v. McLaughlin, 90 N. J. Eq. 322, the petitioner is not entitled to the relief therein prayed,” and advised that the petition be dismissed.

We are of the opinion that the learned advisory master misapprehended the precise state of the undisputed proofs. The evidence showed conclusivly that the desertion occurred April 26th, 1913; since which time, and for more than two years, the defendant had willfully, continuedly and obstinately deserted the petitioner.

Now, in McLaughlin v. McLaughlin, simper, it was properly held that in a suit for divorce for desertion none of the time occupied by the pendency of a former proceeding for divorce by one of the parties against the other can be computed as part of the time of the desertion in the later ease; that this is so whether the same party is petitioner in both cases or is petitioner in the later one and the defendant in the prior one, or vice versa, provided the first suit was bona fide. See also Barbour v. Barbour, 94 N. J. Eq. 7.

But the principle of the McLaughlin Case, when applied to the facts of the instant case, does not justify a denial of the divorce. It is true that on October 16th, 1917, the defendant herein (the husband) began a suit for divorce on the ground of desertion against his wife, the present petitioner, and that she filed a cross-petition, both of which were dismissed without prejudice. But it is to be observed that the husband’s suit was not commenced until October 16th, 1917, which was after the right of the wife to divorce had become complete, on April 26th, 1915. Now, the rule is that when, as here, the two-year period of desertion made by the statute a ground for divorce has once elapsed, the desertion becomes permanently established and its character continues until the filing of the petition, unless sooner brought to an end by the act of the injured party. Gordon v. Gordon, 89 N. J. Eq. 535.

The fact that, in the prior suit by the husband, his petition for divorce, and the cross-petition of his wife, were dismissed by the court of chancery, is no bar to the wife’s present action, since it appears that both were dismissed without prejudice. English v. English, 27 N. J. Eq. 579.

The fact that, after the husband’s prior suit had been dismissed, he took an appeal before the present suit was brought by his wife is no bar to this action, since it appears that the appeal was dismissed by this court on February 4th, 1920!, nunc pro lunc as of February 4th, 1919, a date prior to the filing of the petition in the present case.

The decree brought up will be reversed and the record remitted to the court of chancery for further proceedings, in accordance with the views herein expressed.

For affirmance—None.

For reversal—The Chief-Justice, Trenchard, Min-turn, Kalisch, Black, Katzenjbaoh, Campbell, Gardner, Van Buskirk, Clark—10.


author: Parker, J.

text:
    Thomas F. McCran, attorney-general, &c., informant-appellant, v. Erie Railroad Company et al., defendants-respondents.
    [Submitted December 10th, 1923.
    Decided March 3d, 1924.]
    The change of part of the line of the Newark and Hudson Railroad Company, where the same crosses the Passaic river at Newark, was not a change that could lawfully be made without complying with the requirements of section 16 of the Railroad act (Oomp. Stat. p. 4228), requiring the consent of the riparian commission (now the board of commerce and navigation) and the payment to that body of compensation for land under -water taken by the company.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported in 93 N. J. Eq. 286; 116 Atl. Rep. 103.

      Mr. Harrison V. Lindabury, for the appellant.

      Messrs. Collins & Corbin, for the respondents.
   The opinion of the court was delivered by

Parker, J.

The facts are adequately stated in the opinion filed by the learned vice-chancellor. On this appeal all questions raised below as between the railroad company and the town of Kearny are eliminated, and the only point presented for our consideration and decision is whether the railroad company may appropriate without payment the land under water in the Passaic river, a navigable stream, as required for the building of its new bridge, or must pay to the board of commerce and navigation, for the use of the state, the value of such laud as settled by that board. The information sought an injunction against such appropriation without payment: the work proceeded after payment into court, subject to such award as the court should make in the premises, and the decree adjudged, among other things, that the deposit should be returned to the railroad company.

It is manifest that the power of this company to change its route by shortening a curve and building a new bridge in a different place, must arise out of statutory authority; and that such authority must be found either in the General Railroad act, or in the charter of the Newark and Hudson Railroad Company, enacted in 1870, and supplements, or both. The vice-chancellor correctly pointed out, and respondents properly concede, that if this power is referable solely to the general act of 1903 (Comp. Stut. ¶. 4228 §‘ 16), the express terms of the proviso in that section require the company to pay for land under water taken and belonging to the state, except under circumstances not existing in this ease. The question, then, is whether such power to appropriate without payment is contained in the charter, and the court below concluded that it was.

By the sixth section of the charter of the Newark and Hudson Railroad Company (P. L. 1870 p. 1274) it was made lawful for that company

“to lay out and construct a railroad not exceeding 100 feet in width, from a point in the city of Newark * * * at or near Gouverneur street to a point in the county of Hudson, where the said railroad may connect with the New Jersey Railroad and Transportation Company * * * and for that .purpose the said (Newark and Hudson) company may erect and maintain bridges over the 'Passaic and Hackensack rivers, the said bridges to be provided with draws at least seventy feet in width.”

Section 8 provides for the taking of lands, &c., “when the general route of said railroad shall have been determined on and a survey of said route shall have been deposited in the office of the secretary of state.” Such a survey was filed May 28th, 1871, and, of course, shows the bridge over the Passaic in its original location.

The vice-chancellor held (as we read his opinion) first, that inasmuch as the original bridge and its connecting tracks were, or were to be, abandoned, che land under water occupied by that bridge would revert to the state and bo a fair equivalent for the land now taken; and secondly, that the power given by section 6 to erect and maintain bridges was a continuing power and unaffected by later legislation in general terms.

We are unable to take this view of the matter. The charter conferred power to build and operate a railroad, and to exert the state’s authority by way of eminent domain, in acquiring the land needed for that purpose. Following the almost invariable practice in such cases, such charter provided that the precise location of such railroad should be ascertained and made a matter of record by filing a survey in the office of the secretary of state. That being done, the location became fixed, and, as we have already said, could not be changed except by statutory authority. Such authority has been given in many cases, as, for example, by section 12 of the general act of 1903 (Camp. Stat. p. 4224) : but we fail to find it in this charter, and it will not be held to exist unless expressly given, especially after the road is constructed (33 Cyc. 130, 131; Ell. Railr. § 930; Morris & Essex Railroad Co. v. Central Railroad Co., 31 N. J. Law 205), in which an express provision authorizing a change in location of an existing line or the location of new lines was relied on. In Rowland v. Mercer County Traction Co., 90 N. J. Law 82; affirmed, 91 N. J. Law 332, in which this court adopted the opinion of the supreme court, the qrrestion was whether the relocation of a terminal could be supported as a “new line” within the language of an enabling statute. Whether the shortening of this curve be a “relocation,” or a “new line” or a “branch” (as it is called in the papers filed with the secretary of state under the General Railroad act), it is something not contemplated by any language in the charter of 1870.

It is argued that the power given by the charter to build bridges (in the plural) over the Passaic and Hackensack rivers in general in its terms, and in effect enables the company to build an indefinite number of bridges over each river as desired from time to time. Applying the principle that legislative grants are construed strictly, we hardly think this proposition requires extended comment.

■ As to the suggestion in the opinion below, that the land under water required for the new bridge is merely an exchange for that relinquished by the abandonment of the old one, we can only say that while it may, perhaps, be equitable that the company should be reimbursed in some way for what it has chosen to abandon (as to which we express no opinion), the question before us is purely one of the applicability and meaning of statutes, and to be determined by the rules of statutory construction and interpretation.

So much of the decree as directs the fund in controversy to be paid to the Newark and Hudson Eailroad Company, or to the director general of railroads, with interest, will be reversed, and the causes remanded, to the end that decree be entered providing for payment of the moneys to the board of commerce and navigation, or other proper state authority.

For affirmance—None.

For reversal—The Ci-iiee-Justice, Trenchard, Parker, Mtnturn, Kalisch, Black, Katzenbach, Campbell, Van Buskirk, Clark—-10.


author: Kalisch, J.

text:
    Elisha I. Smith, petitioner-appellant, v. Clara Smith, defendant-respondent.
    [Decided March 3d, 1924.]
    A desertion by a wife from her husband must be willful, continued and obstinate; but where a wife leaves her husband and goes to live with another man, this circumstance is sufficient to furnish a reasonable ground for belief in the mind of the husband that his wife is unchaste, and that, being so, he is relieved from making any effort to induce her to return to him.
    On appeal from a decree advised by Vice-Chancellor Ingersoll, dismissing petitioner’s petition for divorce.

      Messrs. Babcoclc & Champion, for the appellant.
   The opinion of the court was delivered by

Kalisch, J.

The petitioner-appellant filed a petition for divorce, against his wife in the court of chancery, alleging that she deserted him in the month of October, 1915, “ever since which time and for more than two years last past she has willfully, continuedly and obstinately deserted him.” The wife put in no appearance to the suit. The ease was referred to a special master, who, after having taken the testimony, made a report refusing to recommend a decree in favor of the petitioner, upon the ground that there was an absence of proof that the wife’s desertion was obstinate, in that it was not made to appear that the husband made reasonable advances to his wife, after her desertion, to return to him. Exceptions were taken by appellant’s counsel to the master’s report and a hearing upon the exceptions was brought on in the court below before Vice-Chancellor Ingersoll, who overruled the exceptions and advised a decree dismissing the petition.

The action of the vice-chancellor was rested upon the ground that the well-settled legal rule, in this state, where a suit for divorce is brought by a husband against his wife for desertion, required the husband to make reasonable efforts to induce her to return to him, and if he fails to make reasonable overtures to that end the requisite statutory element of obstinate desertion is not established. This is undoubtedly the general legal rule; but, nevertheless, in its application it is not unbending and, like every other general rule, is subject to exceptions, and, therefore, it is quite obvious that the applicability of the rule, in its full rigidity, must depend upon and be governed by the circumstances of each individual case. Hall v. Hall, 60 N. J. Eq. 469, where Gummere, chief-justice, speaking for this court, points out exceptions to the rule, and where the earlier cases relating to the subject are collated.

The fundamental basis of the rule, as illustrated by 'the decisions, is a public policy to safeguard the sundering of the marital contract against collusion between the parties, either by express consent or implied acquiescence. The rule obviously relates to the character of the proof required to establish obstinate desertion in order to negative any inierence that the desertion or its persistent continuance for the statutory period of two years was the result of consent or acquiescence of the parties. But, however that may be, it is plain that the rule was not designed to extend to a case where the conduct of the wife was such as to make it clear that any reasonable effort on the part of the husband to induce his wife to return would prove unavailing or where her conduct was contra bonos mores.

Turning to the decisions of the courts of this state, we find in Hall v. Hall, 53 Atl. Rep. 455, Pitney, vice-chancellor, m dealing with a situation similar to the one here presented (at p. 459), declaring, as follows: “In my opinion a woman who deserts her husband, whether as the result of a sudden freak ox deliberately, must, in order to entitle berself to the benefit of the rule that the husband must seek his wife and endeavor to induce here to return, be careful to comport herself during her separation in such a manner as not to give her husband just cause to suspect her chastity.” This declaration received the approval of this court on appeal. Hall v. Hall, 65 N. J. Eq. 710.

In Sterling v. Sterling, 63 Atl. Rep. 548, a case where a wife deserted her husband and told him that she had deserted him for another man, Magie, chancellor, in discussing the rule requiring the husband to make a reasonable effort to induce his wife to return to him (at p. 549), said: “Under such circumstances a demand would seem to be absurd and unlikely to be effective.”

Other cases dealing with the subject are: Lister v. Lister, 65 N. J. Eq. 110; affirmed, 66 N. J. Eq. 434; Rogers v. Rogers, 81 N. J. Eq. 479 (at p. 485); Fisler v. Fisler, 85 N. J. Eq. (at p. 199); Marsh v. Marsh, 86 N. J. Eq. 419 (at p. 422); Hyer v. Hyer, 91 N. J. Eq. 148; Danielly v. Danielly, 93 N. J. Eq. 558, 559.

This brings us to the consideration of the question whether in the circumstances established by the proof in the cause the petitioner was relieved from making any effort to induce his wife, after her desertion, to return to him.

The testimony tends to establish that the defendant deserted the petitioner in the month of October, 1915, without any cause or provocation on his part; that she went to live with one Mike McCullough; that the petitioner learned that she went with McCullough to Philadelphia; that he saw them in Atlantic City, walking together “with locked arms going up the street;” that he knew that luis wife and McCullough were living together, because he'knew where they lived and saw them go in and out of the house; that he got his information that they were living together from Mrs. Doughty; that he never requested his wife to return to him. This is substantially what the husband testified to on this branch of the case. ■ •

Mrs. Doughty, a witness sworn on behalf of the petitioner, testified, in substance, that she was an intimate friend, of petitioner’s wife, having known her from her girlhood, and that she told the witness a week before she left the petitioner that she intended leaving him and was going away with McCullough, because she liked him, and that she did go away with him; that she was satisfied with him and that she. would never return to the petitioner; that she, the witness, knew that the petitioner’s wife was living with McCullough as his wife at No. 405 North Massachusetts avenue and addressed letters to her in the name of Mrs. McCullough; that she communicated these facts to the petitioner.

In the light of this testimony, which revealed the relations existing between the petitioner’s wife and , McCullough, though such testimony might have been inadequate to establish adulterous intercourse between them, as a ground for divorce for adultery, nevertheless, the circumstance was sufficient to furnish a reasonable ground for belief in the mind of the husband that his wife was unchaste, and that being so he was relieved from making any effort to induce her to return to him. The spirit of the law is not so unreasonable and cruel as to compel a husband to forfeit all his self-respect and to debase himself by requiring him to make overtures to a wife for her return to his hearth in a case where she has deserted him for another man.

The decree dismissing the petition is reversed, with the direction to the court of chancery to decree a divorce in favor of the petitioner and against the defendant, upon the ground of desertion, according to the settled practice of that court.

For affirmance—Trenchard, Parker—2.

For reversal—-The Chiee-Justice, Minturn, Kalisch, Black, Katzenbaci-i, I-Ieppenheimer, Gardner, Van Bus-kirk—8.


text:
    Edward T. Floyd, complainant-respondent, v. Ellen J. Floyd, defendant-appellant.
    [Submitted November term, 1923.
    Decided April 4th, 1924.]
    1. Where a suitor comes into this state and attempts to enforce a judgment obtained in a foreign state, the defendant may challenge the validity of such judgment upon the ground of fraud or lack of jurisdiction of the foreign tribunal which rendered the judgment, but the validity of a judgment of the courts of a sister state cannot be attacked in the courts of this state in a direct proceeding.
    2. If such proceeding were permissible, it is only available to one who has a legal status in this state, and where both parties to the suit are domiciled in a sister state, there is no res in this state that could be properly dealt with.
    3. The domicile of a wife is merged in that of her husband unless she acquire a separate domicile elsewhere, by her husband’s consent, or where he abandoned her or conducts himself in such a manner as would constitute in law a matrimonial offense and justify her in leaving him.
    4. Where the matrimonial domicile of husband and wife are in a sister state, it cannot properly be said that the defendant perpetrated a fraud upon the courts of this state by obtaining a divorce in another state, and by coming to this state after obtaining her divorce impressed ex post faoto upon her alleged conduct a design to commit a fraud upon the courts of this state.
    On appeal from a decree advised by Vice-Chancellor Ingersoll.

      Messrs. Bourgeois & Coulomb, for the appellant-.

      Messrs. Cole & Cole {Mr. Clarence L. Cole of counsel), for the respondent.
   . The opinion of the court was delivered by

Kalisch, J.

This is an appeal from an order advised by Vice-Chancellor Ingersoll, refusing defendant’s motion to strike out the bill of complaint and to quash the writ of subpoena.

The bill was filed by the complainant against the defendant, to the end that a certain decree of divorce obtained by her in the State of Nevada against the complainant be decreed by the court of chancery to have been fraudulently procured by her “and that the decree may be declared null and void and of no effect, and that she may be perpetually enjoined and restrained from setting up the decree or making use of the same in any manner or matter in this or in any other jurisdiction to defeat or affect the marital rights of complainant, and that she be further commanded to present the truth of the matters alleged and shown in the bill of complaint to the district .court of the State of Nevada, county of Washoe, and in good faith to urge the said district court to set aside its aforesaid decree of divorce."

The bill of complaint avers that the complainant and defendant intermarried at the town of Eastville, in the State of Virginia; that the complainant is a resident of Philadelphia, in the State of Pennsylvania, and that he and his wife lived together, whether at Eastville or Philadelphia does not appear, up to January 9th, 1921, on which date she left her husband and went to the city of Reno, in the State of Nevada, for the purpose of obtaining residence there, whereon to base her application for a divorce from complainant. That on the 3d day of September, 1921, she filed her petition for divorce in the Nevada court, allegiirg as grounds therefor that her husband had refused to provide the common necessaries for her, when such neglect was not the result of poverty. •

That on October 24th, 1921, she was granted a final decree and the custody of their minor child. That immediately after the decree she “returned east and settled and took up her residence in the State of New Jersey, at Atlantic City, where she now resides"

“That it was never the intention of the defendant to live in the State of Nevada, nor was her residence in said State of Nevada for any other purpose than to perpetrate a fraud on her husband and on the courts of this state,” &c.

The many grounds of appeal set forth and relied on by appellant’s counsel for a reversal of the decretal order may be conveniently summed up under two heads:

1. The court below was without jurisdiction to entertain the suit because the complainant is a resident of and domiciled in the State of Pennsylvania, and that both complainant and defendant were residents of and domiciled in the State of Pennsylvania at the time the defendant left complainant and went to the State of Nevada.

2. That the facts set out in the bill of complaint do not afford a legal basis for the interposition of a court of equity.

We have reached the conclusion that the complainant has no legal status in this state to attack the validity of the judgment of a court of the State of Nevada in a direct proceeding, and that, therefore, his bill of complaint should have been dismissed.

For it is quite plain what the complainant seeks by his bill is a review of the validity of a judgment of a court of general jurisdiction of the State of Nevada by our court of chancery in a direct proceeding instituted for that special purpose. But even if it be conceded that such a course of procedure was permissible, nevertheless, it is quite apparent that it is only available to one who has a legal status, which the complainant obviously did not have, since the domicile of both husband and wife was in the State of Pennsylvania and there was no res in this state which could be properly dealt with by the court of chancery.

Did the complainant have a legal status in this state ? The statements in his bill of complaint answer this qucery in the negative. According to his averments he and his wife were domiciled in the State of Pennsylvania and she left him against his consent and was guilty of wrongful conduct.

Under the decisions of this state it is held that the domicile of the wife is merged into that of the husband and continues during coverture unless the wife acquires a separate domicile elsewhere, by her husband’s consent, or where he abandons her or conducts himself in such a manner as would constitute in law a matrimonial offense and justify her in leaving him. Rinaldi v. Rinaldi, 94 N. J. Eq. 14, in which case Chancellor Walker has collated the cases decided by the-court of chancery and by this court, dealing with the question to the effect, as stated.

It is therefore clear that the matrimonial domicile, according to complainant’s averments in his bill, is in the State of Pennsylvania.

It is hardly necessary, in view of the complainant’s statements in his bill, to inquire into the question whether there was a res in this state of which a court of equity could properly take hold, for the bill does not disclose any, and reliance for the successful prosecution of the suit is based upon the simple fact that the defendant was residing in Atlantic City and was served with process there, and that in leaving her husband and going to the State of Nevada and obtaining a divorce there, under the circumstances narrated in the bill, she perpetrated a fraud upon the complainant and courts of this state.

How can it be properly said, in view of the fact that the matrimonial domicile of the parties, so far as the facts of this case disclose, is in the State of Pennsylvania, that a fraud was perpetrated by the defendant upon the courts of this state, is inconceivable in sound reason. In order to so hold we would be required to adopt the theory that because the defendant, after obtaining her divorce in Nevada, came to this state, where she was residing at the time she was served with process, impressed ex post facto upon her alleged conduct a design to commit a fraud upon the courts of this state. If this can be fairly said to be the legal affect of her coming into this state, then there is no good reason why the like situation should not exist in each of the remaining forty-seven sister states, to which the defendant may resort temporarily or otherwise, so long as process can be served upon her. Pursuing this thought to a‘logical sequence there would be no obstacle in the complainant’s way, if he were defeated here to repeat his effort in a sister state, and if defeated therp to go to another state, and so on until he had exhausted thw category of states where he was successful in having the defendant served with process. This is a burden which our courts are unwilling to assume upon the ground that such a procedure is against public policy. We are only concerned in passing upon the validity of a judgment of a sister state where an attempt is made to enforce such judgment in this state; and when the validity of such judgment is attacked upon the ground of fraud or want of jurisdiction of the foreign forum over the subject-matter or of the person.

But to entertain a suit of the character, as here, would have a pernicious tendency to convert this state into a mecca for disgruntled divorcees.

Although the present suit does not seek a dissolution or an annulment of the marriage contract, nevertheless it is quite manifest whatever result the court below reached it would aifeet the marital relation which never was here but existed in the State of Pennsylvania at the time the defendant obtained her decree and where the complainant still resides.

There can be no debatable question concerning the right of a suitor to come into this state and attempt to enforce a judgment obtained in a foreign state, and likewise the right of a defendant to challenge the validity of such judgment upon the ground of fraud or lack of jurisdiction of the foreign tribunal which rendered the judgment.

What was said by Vice-Chancellor Van Fleet, in Doughty v. Doughty, 27 N. J. Eq. 315 (at ¶. 818), is pertinent here.

"And the power of the court to relieve against fraudulent judgments is not limited to judgments, recovered in the courts of the same state, but may be exerted against judgments recovered in the courts of other states, whenever they are sought to be made the foundation of an action or defense.” Royal Arcanum v. Carley, 52 N. J. Eq. 642.

In the cited case the complainant filed her bill against her husband for a divorce for desertion and adultery, and by the same bill prayed that a decree obtained by him in the State of Illinois, be avoided upon the ground—first, that the court did not acquire jurisdiction over the cause, and second\, that the decree was obtained by fraud. The facts disclosed that the parties were married and lived in this state. There was no question but what the matrimonial domicile of the parties was in this state before and at the time the suit was instituted by the wife. The case on appeal to this court was affirmed in 28 N. J. Eq. 581.

The case of Carris v. Carris, 24 N. J. Eq. 516, relied on in respondent’s brief to sustain the bill of complaint, has no such tendency. In that case the complainant, a resident of Newark, filed his bill to annul his marriage with the defendant on the ground of fraud. Both he and his wife lived together in Newark, where she gave birth to a child. The matrimonial domicile of the couple was in this state. She left her husband and went to the city of New York and took up her residence there, where she was served with process, according to statutory requirement in the case of an absent defendant.

The distinguishing features of that case from the present one are too palpable to need any comment.

The case of Magowan v. Magowan, 57 N. J. Eq. 322, lends no support to respondent’s contention, for in that case Chief-Justice Gummere, speaking for this court, points out that the bill filed by the wife against her husband was for mainter nance and as antecedent to the primary relief prayed for she sought to have declared void a decree of divorce rendered by a court in Oklahoma, in a suit brought by her husband. In that case it clearly appeared that the matrimonial domicile of the parties was in this state, and that they were both residing in the city of Trenton at the time the suit was instituted by her.

A case which tends to illustrate the fallacy of respondent’s contention that he is clothed with the proper legal status to file the present bill is Fairchild v. Fairchild, 53 N. J. Eq. 678, decided by this court, where it apeared that the wife had filed a bill for maintenance against her husband in our court of chancery, her husband presumably living at the time in the State of Kansas, and had a decree pro confesso.

The husband while the maintenance suit was pending against him filed a bill for divorce against his wife, in a court in the State of Kansas having jurisdiction of divorce cases, to which suit the wife filed an answer and made defense, but was unsuccessful in establishing it. The wife had always been a resident of this state, and the husband came here and applied to the court of chancery to open the decree pro confesso which had been entered against him in the maintenance suit, and for leave to file an answer setting up the decree of divorce obtained by him in Kansas, as a bar to the wife’s right to a decree, which application was granted.

The husband having submitted himself to the jurisdiction of the court by his answer to the wife’s bill of complaint properly presented the issue whether or not the decree obtained by him against his wife in the State of Kansas was valid, and if so was a bar to the maintenance suit, and this court held that it was. Here was a res of which the court of chancery could take hold of, but no such situation exists here, as has already been pointed out.

It may be fairly presumed that a court of a sister state, from who a decree has been obtained by fraud, will, in the exercise of its inherent power to protect the integrity of its judicial procedure and action, and clothed with full control over its own judgments and decrees, afford relief to an aggrieved party who applies to it upon a proper showing that a judgment or decree was obtained by fraud, by opening such judgment or decree and permit a defense to be made to the action.

The views herein expressed result in the conclusion that the decretal order of the court below is reversed, with costs, with the further direction that the bill be dismissed, with costs.

For affirmance—Trenchard, Parker—2.

For reversal—The Chief-Justice, Minturn, Kalisch, Black, Katzenbach, Campbell, Gardner, Yan Buskirk, Clark—9.


author: Black, J.

text:
    John R. Neison, complainant-appellant, v. Lillian S. Goldsmith et al., defendants-respondents.
    [Argued November 28th, 1923.
    Decided March 3d, 1924.]
    1. The meaning of ,the words “nearer the front property line of any avenue than twelve feet” in a covenant in a deed determined and applied.
    2. The rule of contemporary construction, as elucidated by the conduct of the parties, stated and applied.
    On appeal.

      Messrs, dole & dole, for the appellant.

      Messrs. Babcock & Babcock, for the respondents.
   The opinion of the court was delivered by

Black, J.

The primary question to be decided in this case is the meaning and application of the words “the main body of no building shall be erected nearer the front property line of any avenue than twelve feet” in a covenant in a deed.

It is alleged in the bill of complaint that Bradford Wright owned a tract of land in Atlantic City. In 1899 he plotted and mapped the same. In making conveyances it was his intention and purpose to create a general plan and scheme' touching the construction of buildings thereon. To that end deeds made by him to his respective grantees for lots in said blocks had covenants inserted containing the above restrictive clause. An examination of the map put in evidence as Exhibit d-1 discloses the plotting and mapping of the land into blocks, lots and streets. This may be partially visualized by a description of the land from the map thus: the tract of land was bounded by Millidgeville (now Kingston) avenue on the east Tallahassee avenue on the west, Yentnor avenue on the north and Atlantic avenue on the south. It was plotted into sections or blocks and lots; a street called Aberdeen place was opened running from Atlantic to Yentnor avenues sixty-five (65) feet wide between Millidgeville (now Kingston) avenue and Tallahassee avenue. There were spaces left for flower-beds in the centre of the roadbed. The block between Millidgeville (now Kingston) avenue and Aberdeen place was seventy-two (72) feet, while the block between Aberdeen place and Tallahassee avenue was about one hundred and fifty-five (155) feet wide. Millidgeville (now Kingston) avenue was fifty (50) feet wide. Wright apparently owned no more land east of that avenue. It is only with the block seventy-two (72) feet wide between Millidgeville (now Kingston) avehue and Aberdeen place that we are now concerned. In that block, facing Atlantic avenue, two lots, running north and south, were plotted thirty-six feet each fronting on Atlantic avenue by eighty (80) feet in depth, marked respectively one (1) and two (2). All the other lots plotted in the block ran the other way, east and west,- and completely through the block from Kingston avenue to Aberdeen place. Beginning with number three (No. 3) back of number one (No. 1) and number two (No. 2); the dimensions were thirty-nine (39) and thirty-eight (38) by seventy-two (72) feet respectively up to number thirteen (No. 13) on Yentnor avenue.

The complainant is the owner of lot number four (4) on the map, running through the block. Its dimensions axe thirty-nine by seventy-two feet. The defendants own the lot on the comer of Atlantic and Millidgeville (now Kingston)avenue, being lot number one (1), and the rear of lot number three (3), thirty-six (36) feet on Atlantic avenue by a depth of about one hundred and nineteen (119) feet, on which they admit that they are building an addition to the present building on said lot and that such addition is nearer than twelve feet to the property line of Kingston avenue; but, they deny that said addition is being constructed in violation of any restrictions against the property.

Hence, the importance of the words in the covenant in the deeds: “nearer the front property line of any avenue than twelve feet.” Is the line of Millidgeville (now Kingston) avenue a front property line? We think it is not, because, from these facts, it is argued with reason, as the westerly line of Millidgeville (now Kingston) avenue, a narrow street fifty feet wide, was the extreme boundary of Bradford Wright’s ownership; that all his lands lay westward of that point; that the general layout of the property, which shows that the block here drawn under investigation is only seventy-two feet wide, it seems unreasonable and certainly doubtful, whether Bradford Wright ever intended that the lots running through the block from Aberdeen place to Millidgeville (now Kingston) avenue should face Kingston instead of Aberdeen place, dr that he ever intended that Kingston avenue should be “the front property line” within the meaning of the restrictions. The lots on the westerly side of Aberdeen place face that street. It is reasonable to suppose that he intended that the lots on the easterly side should also face the same street looldng out upon the flower-beds on Aberdeen place. In addition to this the testimony in the record shows that all the buildings, except on Atlantic avenue, actually front on Aberdeen place and are built on a uniform line, while there are seven or eight garages built on Kingston avenue. That fact is some evidence of a clear intention, that the owners of the various properties, lots numbers three (3) to thirteen (13) understood that Aberdeen place was a street on which their buildings should face and shows that there has been a contemporary construction by the parties concerned; that Aberdeen place is a “front property line” and that Kingston avenue is a rear property line, with the exception of lot number one (1), on the corner of Kingston and Atlantic avenues, and as to that lot Kingston- avenue is a side line. We think the act of these parties is some evidence as to the meaning of what is a “front property line” in the deeds. The -rule of contemporary construction is applicable to the facts of the case. It is thus expressed in Corpus Juris:

“The rule where a deed is of doubtful meaning, or the language used is ambiguous, the construction given by the parties concerned, as elucidated by their conduct, will be deemed the true one, unless the contrary is shown, particularly so where all the parties concerned have acted upon a particular construction. 18 Corp. Jur. 262 § 218 (S); Meaney v. Stork, 81 N. J. Eq. 210.
“Such conduct of the parties indicates a popular or practical interpretation. Bringham v. H. S. Mulock Co., 74 N. J. Eq. 287, 290, cited in Pearson v. Stafford, 88 N. J. Eq. 391.”

For these reasons we think there has been no violation of the restrictive covenant by the defendants. The decree of the court of chancery should be affirmed. This view of the case renders it unnecessary to consider the other point urged, that there had been an abandonment of the restrictive covenants.

The decree of the court of chancery is affirmed.

For affirmance—The Chiee-Justice, Teen chard, Min-turn, Kalisch, Black, Katzenbach, Campbell, Heppenheimer, Gardner, Yan Buskirk, Clark—11.

For reversal—None.


author: Katzenbach, J.

text:
    In the matter of the appeal of Horace Roberson, executor; Annie P. Buel, Hiram A. Smith and Augustus C. Smith, devisees andi legatees, from an order made in the prerogative court, vacating decree theretofore made in said court, which had affirmed the decree of the orphans court, admitting to probate the will of Susan E. Smith, deceased.
    [Submitted December 10th, 1923.
    Decided March 3d, 1924.]
    1. While there is in the prerogative court no express statutory limitation as to the time within which a defeated party may ask the court to review its action, the analogous limitation of the right of appeal will govern.
    2-, The prerogative court is without power, afte'r the right to appeal has expired, to grant a rehearing except in ease of new or newly-discovered matter. This evidence must be such as could not have been discovered by reasonable diligence in time for the hearing, and of such a character as would have altered the decree.
    3. Where the prerogative court makes an order vacating a decree and allowing a rehearing, upon allegations which do not conform to the tests mentioned in the preceding paragraph, the order will be reversed.
    On appeal from the prerogative court.

      Messrs. McDermott, Enright & Carpenter, for the appellant Horace Roberson, executor (John M. Enright, of counsel).

      Messrs. Garrick & Wortendyke, for the appellants Anna P. Buel et al. (Charles L. Garrick, of counsel).

      Mr. Aaron A. Melnilcer, for the respondents.
   The-opinion of the court was delivered by

Katzenbach, J.

On June 5th, 1910, Susan E. Smith, of Bayonne, in this state, duly made her last will and testament. She bequeathed to each of the children of her deceased husband, William H. Smith, $500 and devised to them a dwelling-house in Bayonne. The will states that the motive which prompted these bequests and the devise of the dwelling-house was that the house and much of the personal property accumulated by the testatrix had come from her deceased husband and his deceased daughter. To a sister and to two brothers' Mrs. Smith gave legacies of $200 each. The remainder of her estate she left to her son, Joseph L. Houghton.

Mrs. Smith died on October 24th, 1918. To the probate of the will her son filed a caveat. He alleged that his mother lacked testamentary capacity and that the will was the product of undue influence. On April 25th, 1919, the Hudson county orphans court admitted the will to probate. From the decree of this court Mr. Houghton appealed to the prerogative court. The appeal was heard by a vice-ordinary, who, on April 4th, 1921, advised a decree which dismissed the appeal and affirmed the decree of the orphans court. On May 1st, 1922, Mr. Houghton presented to the vice-ordinary a petition for a rehearing. The petition set forth the proceedings mentioned and then stated that a great injustice had been done the petitioner, in that the appeal was argued in the prerogative court for him by counsel, different from the counsel appearing in the orphans court, who were unfamiliar with the evidence taken in the orphans court, so that the case was not presented with that fullness which would insure a fair and just determination thereof, and that a further argument of the ease would advance the cause of justice. The petition further stated that evidence material to the issue in addition to that presented could have been adduced, but was not so adduced, because the petitioner had not been informed that such evidence was desirable; that since the decree dismissing the appeal had been made the petitioner had discovered a memorandum book showing a repayment by one William H. Smith to Hiram Smith of the sum of $213.56, which would tend to contradict evidence given by Hiram Smith; that at the time of the hearing a Dr. Donohoe, who had been the physician of the testatrix, .was in military service overseas and unavailable; that he was now available and would, according to the belief of the petitioner, testify to the mental unsoundness of the decedent at the time of the execution of the will. The petition was verified and also had annexed to it an affidavit made by the petitioner’s wife containing some hearsay statements. ^ The vice-ordinary upon this petition made, on May 23d, 1923, an order vacating the decree of April 4th, 1922, and allowing a rehearing. From this order the 'executor and certain devisees and legatees have appealed. The contention of the appellants is that the prerogative court was without jurisdiction to make the order appealed from. No appeal to this court had been taken from the decree of the prerogative court: When the petition for rehearing was filed the time to appeal from the decree of the prerogative court had expired. An appeal from the prerogative court to this court must be taken within one year from the making of the decree. The time within which 'an appeal can be taken had therefore expired on April 5th, 1922.

The practice which obtains in the prerogative court is, broadly speaking, the same as that in the court "of-chancery. In the case of Watkinson v. Watkinson, 68 N. J. Eq. 632, this court held that although there is no express statutory limitation as to the time in which the court may be asked by a defeated party to review its action the analogous limitation of the- right of appeal should govern. In the court of chancery the method of procedure is by bill of review, for which leave to file is obtained by petition. Watkinson v. Watkinson, supra. A bill of review cannot be filed after the right to appeal has expired, except in case of new or ñewlydiscovered matter. Ilid. In the prerogative court the- customary method of procedure is by petition. The evidence necessary to obtain the vacation of a decree and a rehearing must not only be new or newly discovered, but must be evidence which could not have been discovered by reasonable diligence at the time of the hearing, and must further be of such a character as would have altered the decree. We will apply these tests to the grounds set forth in the respondent’s petition for rehearing in the prerogative court.

The first ground is that the case was argued for the petitioner in the prerogative court by counsel, who had not acted for him in the orphans court, and who, because of their unfamiliarity with the evidence, did not fully and forcibly present the petitioner’s case to the vice-ordinary. If the unfamiliarity with the evidence was due to lack of diligence on the part of counsel this was the petitioner’s misfortune. The mistake of a judge or jury may be a good cause for a new trial, but not the mistake of counsel. Warner v. Warner, 31 N. J. Eq. 549. If counsel failed to present the case as fully and forcibly as the petitioner would have liked this was a mistake of judgment on the part of the petitioner in selecting counsel. New trials or hearings are not given for errors or supposed errors of judgment made by a litigant in the selection of counsel. If such were the law there would be no end to litigation.

The next ground advanced is that rebuttal evidence could have been adduced, but was not so' adduced, because the petitioner was not informed that such evidence was necessary or desirable. This situation was clue either to an error of judgment on the pait of the petitioner in failing to acquaint his counsel with the evidence at his command or to lack of diligence of counsel in ascertaining what evidence the petitioner possessed. Neither situation is a sufficient ground for a new hearing. A client is bound by his own mistakes. He is likewise bound by the mistakes of his counsel.

The petitioner next contends that he has found in an old trunk a memorandum book in the handwriting of one William H. Smith, showing a repayment of $215.56 by him to Hiram Smith, a witness and beneficiary under the will, which if it had been introduced in evidence would have tended to discredit the testimony of Hiram Smith. This evidence could have been discovered by reasonable diligence before the hearing. The time to have searched the old trunks for evidence was before the hearing, not afterwards. This evidence, if admissible, would merely have affected the credibility of- a single witness. Where the sole purpose of the new evidence is to discredit the testimony of a witness of the adversary party it will not be admitted. Den v. Giger, 9 N. J. Law 225. There is therefore no merit in this contention.

Finally, the petitioner relies upon the fact that a Dr. Do'nohoe, who was the physician of the testatrix, was in the military service overseas at the time of the hearing and his testimony was not available; but that Dr. Donohoe is now amenable to tire process of the court and the petitioner verily believes that he would testify to the mental unsoundness of the testatrix at the time of executing the will. There is no ■affidavit by Dr. Donohoe as to what he would'testify to. The petitioner’s affidavit does not even contain a hearsay statement as to what Dr. Donohoe’s testimony would be. It is merely an expression of the affiant’s opinion as to what the testimony would be. If it was, in the opinion of the petitioner, so important it could have been taken abroad. These allegations with reference to the testimony of Dr. Donohoe do not bring his testimony within that class of newly-discovered evidence which justifies a court in exercising its sound discretion in vacating a decree.

The situation in the present case may perhaps be best stated by the following excerpts from the opinion of the late Vice-Chancellor Van Fleet, in Warner v. Warner, supra, dealing with a similar application. I-Ie said: “This application, concisely stated, is this: The defendant, after having had the full opportunity given to him by the law to make his defence, and made such use of it as he thought necessary, and having been beaten, now says that, in consequence of his own laches and the misjudgment of his counsel, he did not make as strong a defence as he is sure he can make, if the court will obliterate the past and allow him to start anew. The merits . of his application as thus stated present just the reason why it should not be granted.” .

For the foregoing reasons the order of the prerogative court appealed from will be reversed, with costs.

For affimance—None.

For reversal—The Chief-Justice, Trenchard, Parker, Mintcrn, Kalisch, Black, Katxbnbach, Campbell, HepPENHEIMER, GARDNER, VAN BuSKIRK, CLARK-12.


author: Campbell, J.

text:
    In the matter of the account of the trustees of Alfred B. Jenkins, deceased; Farnham Yardley and Henry W. Montague, trustees under the last will and testament of Alfred B. Jenkins, deceased.
    [Argued December 7th, 1923.
    Decided March 3d, 1924.]
    1. Under Orphans Court act (3 Comp. Stat. 3885 § 209), surrogates are entitled to allowance of fees for auditing, stating and reporting accounts of trustees based upon corpus received from themselves as executors of the same estate, even though such surrogate has received an allowance upon the same sum for auditing, stating and reporting the account of the executors.
    2. Such allowance is to be fixed and is payable upon the auditing, stating, reporting and allowance of the accounts of the trustees and not postponed until ultimate and final distribution of the corpus.

    On appeal from the prerogative court.

      Messrs. Wall, Haight, Carey & Hartpence, for the appellants.

      Mr. Howard Tsherwood, for the appellee.
   The opinion of the court was delivered by

Campbell, J.

This is an appeal from a decree of the prerogative court affirming a decree of the Essex county orphans court, allowing to the surrogate of Essex county $3,866.70 as fees for auditing, stating and reporting the account of appellants as trustees under the last will and testament of Alfred B. Jenkins, deceased.

This allowance was made under the provisions of the Orphans Court act (3 Qomp. Stat. 3885 § 209) and is at the rate of one-tenth of one per cent, on $3,866,703.19, of which $3,582,741.68 was corpus and $283,961.51 was income.

Appellants were also the executors of the estate of Alfred B. Jenkins, deceased, and filed their final account as such October 15th, 1919, which account was allowed by the Essex county orphans- court on November 7th, 1919, and an allowance then made to the surrogate of Essex county of $4,655.18 for auditing, stating and reporting tire account.

Appellants filed their first account as trustees May 23d, 1921, in which they charge themselves with corpus $3,123,-863.30, received from themselves as executors by the aforesaid decree of November 7th, 1919, and with $20,305.49 income likewise received. It is to the allowance of fees to the surrogate on these two items, totaling $3,144,168.79, and an item of corpus $458,878.38, collected by appellants since November 7th, 1919, that this appeal is directed.

The grounds of attack are:

1. That the orphans court was not justified in making the allowance upon these sums because the surrogate had already been allowed upon the same sums for auditing and stating the account of appellants as executors; and

2. Because the amount of the allowance is excessive.

We think that neither ground is substantial. Appellants concede that the offices of executor and trustee under a will are distinct irrespective of the fact that they may be the same persons.

The Heath Case, 52 N. J. Eq. 807, is not applicable to the present matter, except, of course, that upon future accountings by appellants the surrogate can have no allowance upon the sums upon which the present allowance has been made.

It may be argued that the statute in question, arbitrarily and without proper and due consideration of services to be performed by the surrogate, fixes the allowance; but that is a legislative matter and does not call- for nor permit of adjustment or remedy by this court. Likewise it has been contended that if the allowance is proper, upon the sums in question, such allowance should not have been made and payment required as of July 1st, 1921; but at some time or times in the future as the corpus was ultimately and finally distributed. But the answer to this is that the statute in question does not express such a legislative intent.

We conclude, therefore, that the allowance was properly-made upon the sums against which it was computed and was payable as of the date of such allowance, July 1st, 1921.

Upon the question of excessiveness all that can be said is that there is nothing before us to show that the judge of the .orphans court abused the power of discretion with which he was clothed by the statute.

The decree below is therefore affirmed, with costs.

For affirmance—The Chief-Justice, Trenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Heppenheimer, Gardner. Van Buskirk, Clark—12.

For reversal—None.


author: Per Curiam.

text:
    Oliver K. Day, as trustee of Frank E. Hopping, bankrupt, complainant-appellant, v. Wallace V. Hopping and Frank E. Hopping, defendants respondents.
    [Argued November 22d, 1923.
    Decided March 3d, 1924.]
    1. Express testimony cannot be rejected on the sole ground of its improbability.
    2. The testimony of a competent witness cannot be capriciously rejected. Some good reason must appear for such action, as, for example, that his story is inherently improbable, or that it is contradicted by some other testimony or by some proven fact or circumstances, or by testimony impeaching his truth and veracity.
    On appeal from a decree advised by Vice-Chancellor Fielder, dismissing complainant’s bill of complaint.

      Mr. Charles A. Raihbun, for the appellant.

      Messrs. Yreelancl cG Wilson, for the respondent Wallace V. Hopping.

      Messrs. King & Yogi, for the respondent Frank Hopping.
   Per Curiam.

The bill of complaint filed in this case seeks to set aside a conveyance made on December 20th, 1921, by Frank E. Hopping, to his'brother Wallace Hopping, conveying to the latter certain real property in Hanover township, Morris county, upon the ground that the conveyance was made for the purpose of hindering and defeating the creditors of Frank E. Hopping, and in particular Wilfred E. Petry and Livingston Petry, judgment creditors, and that such conveyance was without valuable and sufficient consideration.

The facts which controlled the action taken by the vice-chancellor are fully set forth in his opinion, and we concur in the result reached by him thereon.

The principal attack made on the soundness of the decree in the court below is that the testimony given by Wallace V. Hopping and'his brother in support of the lona, fides of the transaction between them is improbable and, for the reason suggested, should have been disregarded by the vice-chancellor, and should likewise be disregarded here in considering the merits of the case.

This contention is without legal support. In Berckmans v. Berckmans, 16 N. J. Eq. 122, Chancellor Green (at p. 127) states the legal rule thus: “Express testimony cannot be rejected on the sole ground of its improbability.” This ease was affirmed by this court in 17 N. J. Eq. 453.

We said, in Baldauf v. Russell, 88 N. J. Law 303 (at p. 306), the following: “It is true that the trial judge certifies that, after the cross-examination of the witness, he concluded that his testimony was unworthy of belief. But the testimony of a competent witness cannot be capriciously rejected. There must appear some good reason for such action, as, for example, that his story was inherently improbable, or that it was contradicted by some other testimony or ■ by some ’ proven fact or circumstances, or by testimony impeaching his truth and veracity.”

We are unable to detect anything inherently improbable in the testimony given by the respondents, and therefore conclude that the learned vice-chancellor did not err in refusing to reject their statements in his consideration of the cause before him.

The decree is affirmed, with costs.

For affirmance — The Chief-Justice, Teen chard, Kalisch. Black, Katzbnbach, Campbell, Van Buskirk. Claek—8.

For reversal—Parker, Minturn—2.