text:
    Isidore Schreiber v. Joseph Green et al. Allison Dodd v. Joseph Green et al.
    [Decided July 17th. 1919.]
    1. Kents collected by a receiver in a foreclosure suit will be disbursed according to the order of priority ascertained by the final decree irrespective of the party upon whose application the receiver was appointed.
    2. Ordinarily, a stranger to a suit has no standing to claim rents collected by a receiver.
    On bill, &c.

      Mr. Ilarry T. Davimos, for the complainant, Schreiber.

      Messrs. Warner & Warner, for the trustee in bankruptcy of Joseph Green.

      Mr. William A. Calhoun, for the Second National Bank of Orange and the receiver.
    This matter was referred to Merritt Lane, Esq., advisory master, who filed the following conclusions:
    “On May 9th, 1918, a bill was filed by Schreiber against Green and Otterbein, alleging that certain property described in the bill, the legal title of which stood in Green, belonged to Schreiber, Green and Otterbein as tenants in common. The bill prayed for a determination of the rights of the parties and, if necessarjq a partition or division of the premises. On or about the date of filing of the bill, on application of complainant, a receiver was appointed of the rents, issues and profits. In July, 1918, in a suit instituted by Dodd against Green and others to foreclose a mortgage covering a portion of the property referred to in the Schreiber suit, the individual acting as receiver in the Schreiber suit was appointed to act as receiver of the rents, issues and profits of the property being foreclosed. The Second National Bank of Orange held a second mortgage which was duly proved. In the month of April, 1919, the mortgaged premises were sold by the sheriff. There remains due to the bank on account of its mortgage the sum of some $19,000. In the meantime, mortgages upon the property referred to in the Schreiber suit, not referred to in-the Dodd suit, had-been foreclosed and the equity of Schreiber, Green and Otterbein obliterated. The parties in the Schreiber suit have now agreed to- a final decree adjudging that the interest of Schreiber, Green and Otterbein is each one-third. The receiver has filed a report in each case showing' the amount of rents which he has collected and the balance which he has on hand. The bank moves for an order directing the receiver to pay the rents on hand collected by him in each case to it, on accormt of its deficiency. The parties in the Schreiber suit move for an order directing the receiver to pay all the moneys which he has on hand in both cases to them.
    “My conclusion is that the hank is entitled to the balance on hand in the foreclosure suit, and that the parties in the
      Schreiber Case are entitled to the balance on hand in that case.
    “It is settled, now, in this, state that where a receiver is appointed in a foreclosure suit he acts for the benefit of all parties to the suit claiming an interest in the property. New Jersey Title Guarantee and Trust Co. v. Cone & Co., 64 N. J. Eq. 45 (at p. 47); Last v. Winkel, 86 N. J. Eq. 256; affirmed, 86 N. J. Eq. 431. In Longdock Mills and Elevator Co. v. Alpen, 82 N. J. Eq. 190. cited as authority to the contrary, it appears that the petitioner for the rents was a total stranger to the suit. Notwithstanding, therefore, the fact that the receiver in the Dodd suit was not applied for on behalf of the Second National Bank the balance in hand, after deduction of allowances, will be ordered paid to the bank.
    “The bank bases its claims to the rents collected in the Schreiber suit upon the ground that there is still a deficiency due it upon its mortgage, and that that mortgage covered the whole or a part- of the property referred to in the Schreiber suit, and also upon the ground that the Schreiber suit involved a general administration of the affairs of a partnership, and that it, as a creditor, is entitled to protection. The bank is a stranger to the Schreiber suit, and it is immaterial whether its mortgage covers the property or not. Coddington v. Bispham (Court of Errors and Appeals), 36 N. J. Eq. 574; Longdock Mills and Elevator Co. v. Alpen, supra. An inspection of the record in the Schreiber suit indicates that it was not brought for the purpose of administering the affairs of the partnership and the suit is not in any sense for general administration. The bill prays for an adjudication of rights in real estate and for a partition thereof. The balance of the rents in the hands of the receiver in the Schreiber suit, after deducting allowances, will be ordered paid one-third to Schreiber, Green and Otterbein each.'
   Walker, Chancellor.

An order will be made in conformity with the advice contained in the conclusions of Advisory Master Lane, which are hereby adopted as the opinion of the court.


source: Caselaw Access Project

author: Walker, Chancellor.

license: Public Domain

text:
    Republic Trading Company v. John J. Hay.
    [Decided September 9th, 1919.]
    The restraint contained in an order to show cause, which by its terms runs “until the further order of the court” or “until this order be discharged or made absolute,” does not become ineffective unless or until there is an order made by the court to the contrary, notwithstanding the fact that the hearing on -the order to show cause is'informally continued, after the date of its return, or is not continued at all.
    On motion to punish for contempt.
    This matter was referred to Merritt Lane, Esquire, advisory master, who filed the following conclusions:
    ' “This is an application to punish defendant, Hay, for contempt. It is charged that he violated an order of this court made on July 15th, 1918, restraining and enjoining him from interfering with the collection of commissions referred to in the bill and from in any way transferring or disposing of his claim to srrch commissions. It is alleged that. in.violation of this injunctive order he did, on or about September 7th, 1918, collect the sum of $3,706.50 from the Monarch company.
    “The Monarch company was mentioned in-the bill and there is no doubt, but that, and it is not contended otherwise, the sum referred to, $3,706.50, represented commissions, interference with the collection of which bv de fon dent, Hay, was enjoined.
    “It is contended for defendant that there does not appear from the docket of this court that the bearing on the order to show cause, which was returnable on July 30th, 1918, was regularly continued from time to time to a period subsequent to the date of the collection. It is urged that no formal order of continuance appears on the record from July 30th, 1918, the dato of the return of the order, to August 12th, 1918, the date when it is conceded that both counsel were in Jersey City, and it was consented that the case should he continued until the first motion clay in Newark, and that no formal order appears continuing it from August 12th to September 3d, 'the first motion clay in Newarn after vacation. It is contended that the order to show cause fell and with it the restraint. No authority is cited for ihe proposition advanced, except a decision in the State oi Oklahoma, which, it is., claimed, bears out the insistence of counsel. That decision may rest upon peculiarities of local practice. The order here under discussion enjoined defendant until it should be discharged or made absolute. There is no contention but that by consent of counsel the hearing on the order to show cause was continued from July 30th, the date of its return, to August 12th, and from August 12th to September 3'cl. There is a letter in evidence from counsel for defendant to counsel for complainant suggesting that an adjournment be taken until October 8th. This letter is dated September 4th. There is a formal order of continuance from September 3d to September 17th; another from October 8th, to which date, apparently, the hearing had been adjourned in accordance with the suggestion of counsel for defendant in Ins letter dated September 4th, to October 22d, and another from October 22-d to November 7th. On November 7tb, after the argument, an order was entered reciting that the order to show, cause came on regularly to be heard in the presence of counsel, and it was then ordered that the defendant he enjoined, until the further order of the court, from interfering with the collection by the complainant of commissions due to complainant from the Monarch. Machine Tool Company and others. This order contained a specific injunction against defendant collecting or receiving such commissions. It is quite clear that the order to show cairse never died. It was kept alive by agreement of counsel, and was finally heard by the court. It is the practice of this court in granting orders to show cause containing ad interim restraint to provide that the cul interim restraint shall run until the further order of the court. While this order is not drawn in exactly that form, in substance, it is the same. The restraint runs until the order be discharged or made absolute. The language has been adopted to prevent just such a claim as is now made for defendant. The purpose is that if counsel omits to taire, or if the court does not see fit to make, an order actually adjourning the hearing on an order to show cause (although, such an adjournment may be consented to by both parties, as in this case), the restraint contained in such order will not lapse because of tlic lack of a formal order of continuance. To hold in accordance with the contention of defendant on this issue would, in my opinion, violate the policy of the court and destroy the very purpose for which the language has come to be used. The order means exactly what it says. The restraint continues until the order is discharged or made absolute. It was neither discharged nor made absolute until November 7th. The restraint was in full force and effect when, it was violated.”

      Messrs. Bilcler £ Bilder and Mr. Samuel Kaufman, for the complainant.

      Mr. Andrew Tan Blarcom, for the defendant.
   Walker, Chancellor.

An order will he made in conformity with the advice contained in the conclusions of Advisory Master Lane, which are hereby adopted as the opinion of the court.


author: Stevens, V. C.

text:
    Clark Abell v. Louis L. Friedman.
    [Decided July 15th, 1919.]
    1. A purchaser of land sold for unpaid taxes under the Martin act has no right of entry on the land purchased until six months after the service of the notice required by the act.
    2. If no entry be made by the purchaser within twenty years next after such right of entry accrues, he is barred by the statute of limitations.
    On bill, i&c.

      Mr A rthur F. Fgner, for the complainant.

      Mr. Abe J. David for the defendant.
   Stevens, V. C.

This is a bill to quiet title. The claim is that a certificate of sale for unpaid taxes adjusted under the Martin act, given by the comptroller of the city of Elizabeth in the year 1888, is barred by the 'statute of limitations. The section relied upon reads as follows:

“No person who now hath or hereafter may have any right or title of entry into any lands, tenements, dr hereditaments shall make any entry therein but within twenty years next after such right or title shall accrue.”

The purchaser at {he sale was the city of Elizabeth, and the question is whether by the certificate it acquired a.right of entry upon the lot therein described. It held it from the 37ear 1888 until October, 1918, when it transferred its right thereunder to the defendant, Eriedman. Section 312 of the act relating to taxes and assessments (Comp. Stat. p. 5212) provides as. follows: .

“Tlie comptroller or other collecting officer shall on the receipt of the purchase money on any sale * * * execute and deliver to the purchaser a certificate of such sale. * * * Upon surrender of the certificate of sale and -proof of service of the notice thereof as hereinafter provided upon the owners and mortgagees of the said lands and premises, the comptroller or other collecting officer shall, after the expiration of six months from the date of such service, execute and deliver to the purchaser at such sale, his heirs, devisees and assigns, a deed for said lands and premises which shall be sealed and attested by the clerk of the city, and proved in the usual manner, and such purchaser, his heirs, legal representatives or assigns shall take a good and sufficient title to the property sold in fee-simple absolute free of all incumbrances” (except taxes * * *).

The act provides that the city may purchase and that the mayor may give the six months’ notice. 'It provides further (Comp. Stat. p. 5212 § 313) that

“the purchaser shall be entitled to the possession of said lands immediately upon giving such'notice to the. owner thereof in case the same are unoccupied, or, if they are occupied, then within thirty days thereafter.”

And that the owner may at any time lie fore the expiration of six months after notice shall have been given to him redeem by paying the sum paid at the sale-with Interest.

The city during the thirty years it held tlje certificate gave no notice. Its assignee, in November last, served notice to redeem,' and hence this suit.

The question is, Has a certificate holder from the time he acquires his certificate and before he gives notice a right of entry? The question would seem to be answered by the statute itself, for it designates the time 'when entry may be made. If the land lie unoccupied it declares that the certificate holder is entitled to possession immediately after giving notice, if occupied within thirty days thereafter. ' - ,

The nature of the right given by the certificate has keen adjudicated. In Re Commissioners of Elizabeth, 49 N. J. Law 488, Mr. Justice Depue said: “By the city charter (of Elizabeth) the certificate of sale does not transfer or divest the title. The certificate, by section 84, after it is recorded, constitutes simply a continuation of the original lien. Title is not divested until a declaration of sale is executed and delivered and also recorded in the county clerk’s office. In the meantime, however long the declaration of sale and the recording of it may be delayed, the owner or his representatives may redeem. A certificate of sale made to the city, in effect, maintains its lien for taxes and assessments in siaiu quo. Everything is in fieri until a declaration of sale duly executed and recorded divests the title of the owner.” If it be suggested that the charter declared that the certificate should constitute a lien, the answer is that in the subsequent case of Maginnis v. Rutherford, 73 N. J. Law 288, the same construction was put upon a statute which, like the present, contained no such declaration. And the reason is obvious. All that the bidder, gets by his certificate is a statement that he bid at the sale and that the lot was struck off and sold to him. -The sale differs from the ordinary sheriff sale, in that the sheriff sells unreservedly all defendant’s interest, whatever that interest may be, while the comptroller sells with the reservation that notice must be given if the bidder desires possession and the fee and that the owner may redeem. Until notice given the holder of the certificate has only a lien for his money. On its expiration whether he will be entitled to something more than a lien will depend upon the action of the owner.

Now, there is nothing adverse — nothing hostile — as between a lien and the title upon which it rests. Colton v. Depew, 60 N. J. Eg. 461; Foulke v. Bond, 41 N. J. Law 545.

Counsel relics upon Beatty v. Lewis, 68 Atl. Rep. 95. This case only emphasizes the distinction taken. The Hoboken charter provided for a declaration of sale giving a legal title and an immediate right to possession. Erom the time the 'declaration was delivered the possession of the owner became aclverse, and, of course, the statute began to run. The Iowa statutes differ so widely from our own that the reported decisions in that state have here no application. Section 29, relating to title acquired by thirty years’ actual possession, has no application to this case. The tax imposed was not a right prior in time to the title of complainant.

There is no allegation in the bill that the taxes have been paid. Consequently, the rebuttable presumption arising from lapse of time does not require consideration. Parisen v. Railroad Co., 65 N. J. Law 413.


text:
    Ole N. Oleson et al., executors, v. Stephen F. Somogyi et al.
    [Decided August 14th, 1919.]
    Where a testatrix gives her property to trustees to pay the income therefrom to her son for life, and, if necessary, to use part of the corpus for hig benefit, he being her sole heir-at-law and'next of kini and directs that after the death of her son the estate shall be distributed among her legal heirs and next of kin, the estate goes to the nephew and nieces of testatrix, on the son’s death, to the exclusion of the son’s widow.
    On bill, &c.

      Mr. Charles C. Jlommann, lor the complainants.

      Mr. Irving Lipman■, Mr. John P. Kirkpatrick, Mrf John TT. 'Beckman and Mr. Edmund Wilson, for the defendants.

      Mr. Stephen F. Somogyi', pro se.

   Stevens, V. C.

This is a bill for the construction of: the will of Margaret E. Evans. The will hears date in December, 1913, and the codicil in February, 1916. Testatrix died in March, 1917, at the age of seventy-one. She left a son, who was. at the date of the will and at her death, her sole heir-at-law <and next of kin. Her estate consisted of a- house and of personal property worth about $28,000.

After payment of her debts and funeral expenses, testatrix gave the residue of her estate to Ole N. Oleson and the-Perth Amboy Trust Company in trust to keep the same rented and invested and from out of the income to pay the expenses of the education of a grandniece, and to pay the remainder of the income to her son, Garrett Van, as long as lie lived; and if lie, at any time, through illness or personal injury, should be in such circumstances that the income would be insufficient for his financial needs, the trustees were to use for his benefit such part of the corpus of the estate as they in their discretion might deem necessary.

The third section of the will, which has given rise to the present controversy, reads as follows:

“At and after the death of my said son. I direct my said executors to distribute my estate among my legal heirs and next of kin who shall he at law entitled to the same, as though I died intestate.”

The son died after his mother, leaving a widow. The widow’s contention is that the corpus of the estate, at testatrix’s death, vested in the son and that she is entitled to the personalty as his next of kin under the statute.

The issue of a brother of testatrix contend that they are the legal heirs and next of kin intended by her.

The law applicable to the situation is thus stated in 2 Wms. Ex. (7th ed.) 989:

“If there is nothing in -the context of the will or the circumstances "'f the case to control the natural meaning of the testator’s words, his next of kin living at his death will be entitled, and if the tenant for life happen to be one of such next of kin or to 1)0 the only such next of Mn, he is not on that account to be excluded. But where the context demonstrates that the person or persons to take under the description of next of kin, is a person or persons to be ascertained at a future period or that it is the testator’s intention to exclude the tenant for life from the description of next of kin, the expression must be necessarily understood as meaning the testator’s next of kin living at the death of the tenant for life.”

Yiee-Chaneellor Emery, in Tuttle v. Woolworth, 62 N. J. Eq. 532, says: “In a legal sense, 'heirs’ implies a reference to the time of the ancestor’s death, and if a testator makes a devise or gift to his heirs or next of kin, those standing in that relation at the time of his death would seem to be the persons intended, unless there is something in the will itself to show that the testator had another period in his mind ap.d that the legal sense o E the word is to be restricted by indications that some other time is fixed. If the gift to testator’s heirs or next of kin follows a previous gift to a person, not one of the heirs or next of kin of the testator, there could generally be no question that the class was fixed at testator’s death.”

The English, cases in which this (question has been considered arc numerous and their general result is stated in the above passage from Williams. The inquiry has always been whether the context or the circumstances show that some persons other than the heirs or next of kin, who were such at testator’s death, are the persons intended.

As Vice-Chancellor Emery remarked there could ordinarily be no question when the'gift to the heirs or next of kin followed a gift to a person other than the heirs or next of kin. The difficulty has arisen where there has been a gift to A or to A, B and C, expressly for life (they being the heirs or some of the heirs and next of kin) followed by a gift to testator’s heirs and next of kin on his or their death with or without other contingency. And even among cases of this kind there is a distinction. If the testator lias several heirs or next of kin, A, B and C, and, as in Tuttle v. Woolworth, gives property to A for life, and at A’s death to his (testator’s) heirs and next of kin, there is less difficulty in saying that the corpus shall be distributed among A, B and C (A being, under the description, as much entitled as B and C), than there is in saying that where the testator has only one child and gives the income to that child for life, and at his death to his (testator’s) heirs-at-law and next of kin, that that child is the person intended to take the corpus. In this latter case I think the ordinary testator would certainly .conceive that by the terms of his bequest he had given the corpus to persons other than the child. Delany v. McCormack, 88 N. Y. 174, 183. If he had wished, in fact, to give it to the child he would have clone it in a less roundabout way. He would hardly have said, in effect, I give the income of my estate to my son for life, and if he die, then I give my estate to my son. But even .in this case it has been decided that such is the inherent force of the expressions “heirs-at-law” and “next of kin,” viz., those who are such immediately at the death — that what might be called the natural presumption is overcome by the legal presumption which arises from the use of the technical words. It is, however, obvious that testator’s real intention being what is sought after, slighter indications would in the case of a gift to a single heir suffice' to take the case out of the general rule than would be required in the case of a gift for life to one of several heirs followed bj a gift of the corpus to the heirs generally.

One of the early cases is Jones v. Colback, 8 Ves. 38. The residuary bequest was to testator’s daughter for life and to her children at their ages of twenty-one; and after the decease of . the daughter and of her children under that age, the estate was to go to and be distributed among his relations in a due course of administration. The court construed -“relations” to mean next of kin; and the (laughter dying without leaving issue it was held that the property went to the great nephews and nie'ce< rather than to the personal representatives of -the daughter who was testator’s sole next of kin at his death. Sir William Grant, M. K., said: “1 think in the present case it is evident the testator intended to speak of ‘relations-,’ not at the time of his own death, but at that of his daughter or her issue under the age of twenty-one. As to the claim of the daughter, it is hardly possible the testator could mean to describe an only daughter by the teim ‘my relations,’ directing also that the residue he distrihu-led among those relations. Yext, it is impossible that he could take this strange circuitous method of giving her the whole residue in the event of her dying without children, instead of directly saying so.” I quote this case as being not only very much in point, but because, in spite of some intermediate criticisms, it was thought to be correctly decided by the lord-justices in Lees v. Massey, 3 De G. F. & J. 113.

Tn Briden v. Hewlitt, 2 Myl. & K. 90, the gift was to testator’s mother for life, and in case she died without will, “then to such person or persons as would bo entitled to the same by virtue of the statute of distribution,” and it was held that the word “would” imported that testator intended his next of kin at his mother’s death and not at his own death. In Butler v. Bushnell, 3 Myl. & K. 232, it was said, that the words “such persons as happen to be” or “such persons as shall or should be” my next of kin indicate an intention to confine tlie gift to such persons as should answer the description at the death of the tenant for li fe. In Minter v. Wraith, 13 Sim. 52, the gift was to-testator’s two daughters for life with a gift over to'his next of kin, his, her or their heirs, &c. The word “his” was held to be not applicable to .daughters. In Say v. Creed, 5 Hare 580, Yice-Chancellor Wig-ram said in the course of his judgment: “When, therefore, testatrix in such circumstances described her next of kin to whom she had given her property in terms which import that she contemplated a plurality of persons under that description, the question is whether her words of plurality interpreted, .do not describe some persons other than” (her sole next of kin to whom she had given the property for life).

I have specially referred to these cases among many others because they seem to me to bear directly upon the’ case in hand. There are several indications of testatrix’s intention to give the corpus of the estate, not to her son, but to those who should be her next of kin at his death. In the first place, she gives her trustees power to use the corpus for his benefit. This would have been unnecessary if she had intended to give him the corpus outright. Second, she used the word “shall,” adverted to by the master of the rolls in Butler v. Bushnell, supra, as indicating an intention to give to the persons who answer the description at the death of the tenant for life rather than at her own death; for the will speaks from the death. Third, she directs her executors to distribute her estate among her legal heirs and next of kin — that is, among a plurality of persons. These indications seem to me, in accordance with the cases cited, to be sufficient to take the case out of the general rule.

The strongest case that I have found on the other side is, perhaps, Bird v. Luckie, 8 Hare 301. There the direction was, upon the grandson’s death to distribute the whole of the residue among such, next of kin, &c. This was a distribution apparently among a plurality of persons. Yice-Chancellor ICnight-Bruce said: “I do not see why it should be supposed that when testator made his will he contemplated, as impossible to happen in his lifetime,'any event which was then possible to happen in his lifetime, though in fact it did not.” In other words, it was possible for him to have had other next of kin of the same degree at his death, and to have so contemplated. In the case in hand such an impossibility exists. Mrs. Evans, at the age of sixty-eight, was past child bearing, and if her son survived her she could have but one next^ of kin, and she could not have contemplated having any other of like degree. It is said, in this class of cases, to be the duty of the court .to put upon words their proper meaning and to give effect, if possible, to every word. It cannot, in the present case, be held that a sole next of kin was intended without doing violence to language which imports more than one. There is to be a distribution among next of kin — a thing impossible if only one take; and when such a construction furthers what seems to be, on the face of things, testator’s real intention as contra-distinguished from that somewhat artificial intention deducted from the use of the technical words, why should the court hesitate? I think the nephews and nieces-take to the exclusion of the son’s widow.


author: Stevenson, V. C.

text:
    Realty Company of New Jersey v. M. Loretta Burghardt.
    [Decided March 7th, 1919.]
    1. The state has power to provide an action quasi in rem for the benefit of all parties interested in property, especially land within this state.
    2. What is reasonable notice in an action quasi in rem depends upon the circumstances, and sometimes cannot be completely defined by statutes or rules of court, but must be left to be prescribed by the court in a particular case.
    3. Section 10 of the Chancery act could not be applied to an action to quiet title in 1903. ,

      On vendor’s suit to compel specific performance bj vendee of a contract to accept deed to real estate and pay for the same. Heard on stipulations and papers admitted in evidence by consent.

      Ml'. William IS. Decker, for the complainant.

      Mr. Clarence Linn, for the defendant.
   Stevenson, V. C.

The solé defence is that the title offered is not marketable.

1. The following will exhibit the alleged defect: In 1903, one Charles Siedler was in peaceable possession of the land, claiming absolute legal title in himself under five certain deeds, each of which purported to convey an undivided one-fiftli. It appeared from the record, however, that in 1824 an undivided one-half interest was devised to one Jacob Vreeland. There was no further history of Jacob YTeeland’s undivided half interest obtainable from the records or otherwise.

In 1903, Siedler filed a bill in the court of chancery of New Jerse^r under the provisions of the act entitled “An act to compel the determination of claims to real estate in certain cases and to quiet title to the same.” 4. Comp. Stat. p. 5399. The complainant, Siedler, being unable to ascertain whether Jacob Vrecland was alive, or if dead, who were his heirs or devisees, took proceedings in his suit under section 10 of the Chancery act to bring into the suit as defendants so as to bind them by the decree, parties named and described as “Jacob Vreeland, bis heirs, devisees and personal representatives.” A large number of persons w.ere made defendants by their true names, many of them bearing the name Vreeland, and it is indirectly stated in the bill that these persons, or some of them, were heirs or devisees of Jacob Vreeland. There is aro claim aaaade or proof presented that these individuals who were, proceeded agaiaast by naaiae as absent defendants exhausted the class embraced within the term “heirs, devisees and persoaaal representatives” of Jacob Vreeland. The bill by a very plain implication, as well as by the fact that it undertakes to get the benefit of section 10 of the Chancery act, concedes that at least there might be heirs, devisees or personal representatives of Jacob Vreeland whose names are not known and who must be brought into the suit under section 10 of the Chancery act if they can be brought in at all. Some of the defendants whose names are given were served with process. The greater number of named defendants were proceeded against by publication, and among these last appears “Jacob Vreeland, his heirs, devisees and personal representatives.”

2. It may be remarked in passing that the act of March 21st, 1912 (P. L. 1912 p. 151; first supplement Comp. Stat. p. 1545), as counsel for the complainant concedes, had no application to the Siedler Case in which the decree was made in 1903. Vo criticism has been made of the proceedings taken under section 10 of the Chancery act in this Siedler Cose, excepting that this statute cannot be applied to an action to .quiet title. This point was directly decided in the case of Hill v. Henry (Vice-Chancellor Stevens, 1904), 66 N. J. Eq. 150. I am entirely unable to distinguish the case at bar from the case of Hill v. Henry above cited. One of the propositions decided as the basis of the decree dismissing the bill was “that the provisions of section 10 [of the Chancery act] have no application to the act to quiet titles.”

3'. Counsel for the complainant argues' that the views expressed by Vice-Chancellor Stevens in Hill v. Henry in regard to the constitutionality of section 10 are no longer tenable in view of the decision of the supreme court of the United States in American Land Co. v. Zeiss, 219 U. S. 47; 55 L. Ed. 82; also citing Cona v. Henry Hudson Co., 86 N. J. Law 154. I have not deemed it necessary to consider this matter because, conceding all that counsel for the complainant claims in regard to thcconstitutional questions involved in the case, the decision of the court of chancery that section 10 of the Chancery act does not apply to suits to quiet title stands unshaken.

4. My attention has also been called to the recent case of Silver v. Gattel (Vice-Chancellor Lane, 1918), 105 Atl. Rep. 137, in which the applicability of section 10 of the Chancery act to a suit to foreclose a tax lien under the Tax act of 1903 (4 Comp. Stat. p. 5137 § 59) was under discussion. Vice-Chancellor Lane differs widely from Vice-Chancellor Stevens upon the point under consideration, but I have not looked into the matters concerning which these two learned judges appear to differ. In Hill v. Henry the learned vice-chancellor seems expressly to except from the rule requiring a named defendant, “tax and condemnation cases,” which cases, he adds, “are manifestly peculiar.” (At p. 155.)

5. I do not doubt that the state has the power to provide an action quasi vn rem for the benefit of all parties interested in property, especially land within the state. The res is within the state, and the other element, reasonable notice, it seems to me, can be provided for in all possible cases. The owners of property within the state are certainly not obliged to submit to inconvenience and loss because persons who appear on the public records as holding interests in the property have disappeared and it is impossible to ascertain whether or not their apparent, interests have passed to and are held by persons unknown. What is reasonable notice in an action quasi in rem, as lias often been said, depends upon circumstances and sometimes cannot be completely defined by statutes or rules of court, but must be left to be prescribed by the court in the particular case. It seems to me that it would be easy to give reasonable notice in an action quasi in rem to quiet a title so as to bring in and. bind by the decree not only a party named as the original owner of, or claimant to. some title or interest in the land, but all unknown and unasoertainable holders of any title or interest directly or remotely derived from such patrby. Such unknown possible claimants might include not only heirs and devisees of the party named, hut devisees of heirs and heirs of devisees, and all other unknown parties acquiring title or colorable title'to any interest in the land, which title or colorable title was originally derived from the party named in the bill. If any of the unknown and unascertainable possible claimants should appear in the suit and sot up their claims, the decree in every instance would “fix and settle the rights of the parties” so as to quiet the title of the complainant as against sucli party or “determine” precisely what the claim ol the party was so that the complainant could deal with it.

The difficulty which confronts the complainant in this case arises from the fact that while the State of New Jersey has power to create such an action quasi in rein against unknown possible claimants whose names cannot "be ascertained, according to the. decision o£ this court in Hill v. Henry, it had not attempted to do so until after the Siedler suit in the year 1903.

6. The possibility that devisees of heirs and heirs of devisees of Jacob Vreeland, and grantees and mortgagees from Jacob Vreeland or from parties who derived title from Jacob Vreeland, may be in existence to-day whose interests could not be affected by the decree in 1903 in the Siedler suit, conceding that section 10 of the Chancery act was applicable to that suit, was not the subject of any argument in this case and therefore has not been considered.

Vice-Chancellor Stevens, in Hill v. Henry (at p. 158), in effect, expresses the opinion that such -possibility would make a suit to quiet title fail even if valid proceedings could be taken under section 10 to bring in unknown and unascertainable heirs and devisees of a party named. In Silver v. Galtel, supra, Vice-Chancellor Lane decided that the title offered was marketable, although the decree on which it rested was based upon a decree of this court in a suit under the Tax act above referred to against parties named and their “unknown heirs, devisees and personal representatives” without considering the narrow scope of the notice provided for by the statute. As I have already intimated, a distinction plainly may be drawn between suits to establish tax titles which are practically strict foreclosures (Mitsch v. Owens, 82 N. J. Eq. 404.) and suits to quiet title.

In this connection it may be noted that the answer shows that the title offered rests upon proceedings against unknown heirs or devisees of Jacob Vreeland brought into the suit pursuant to the Chancery act, but does not allege or point out m any way that there may be holders of interests originally derived from Jacob Vreeland other than heirs or devisees of Jacob Vreeland. The answer seems to coniine the objection to the title to the fact that there were or might be uther heirs of Jacob Yreeiand be- > sides those specifically named in Mr. SiedleEs bill of complaint, and that those possible unknown heirs could not be brought into the suit by proceedings under section 10 of the Chancery act. Tn view of the form of the answer and the absence of argument,'the point above referred to, I think, may well be left undecided in this case.

7. The bill docs not allege, nor is there any proof, that the complainant .holds a title which lie, or any of his predecessors in title, obtained by adverse possession against all paities who claim or might claim a title or interest, derived originally from Jacob Yreeiand. The argument on both sides has been confined to the question whether the title, or colorable title, originating in the devise of an undivided half of the land to Jacob Yreeiand in 1824- was extinguished in 1903 by the final decree in the Siedler suit which undertakes to adjudge that the defendants, including “Jacob Yreeiand, his heirs, .devisees and personal representatives,” have no estate or interest in the land in question, and that as to these defendants the title of the complainant is “determined, fixed'and settled and declared to be good.” Without undertaking to consider this' question as one open to discussion on the merits, I merely find that I am obliged to hold that the question is answered in the negative, so far as the court of chancery at present is concerned, by the well-considered decision in the case of Hill v. Henry. If the complainant is entitled to a different answer he must get it from our court of last resort.

The bill will be dismissed.


author: Leaming, V. C.

text:
    John Wills et al. v. James LeMunyon et al.
    [Submitted April 22d, 1919.
    Determined April 25th, 1919.]
    1. Under the Descent act of New Jersey, as amended by P. L. 1915 p. 67, the word “ancestor” means anyone from whom an estate is inherited.
    2. Where a person inherited a tract of land, onc-lialf from his father and one-lialf from his brother, and died intestate, both his maternal and paternal uncles share in the one-half part inherited from the intestate’s brother — the paternal uncles only in the part inherited from his father.
    3. Den v. Searing, 8 N. J. Law 340, followed.
    On final hearing on bill to quiet title.

      Mr. V. Claude Palmer, for the complainants.

      Mr. George M. Hillman, for the defendants.
   Leaming, V. C.

The hill herein is filed under the provisions of our statute authorizing hills to quiet title to real estate. 4. Comp. Stat. p. 5399. The answer admits peaceable possession on the part of complainants and specifically sets forth the estate claimed by defendants.

The issue of title is dependent upon the construction to he given to our Descent act as it existed during the period the amendments of March 3d, 1915 (P. L. 1915 p. 61) were in force; hut the specific issue here involved is not materially affected by those amendments.

The language of the act giving rise to this controversy is that contained in the sixth section:

“Unless where such inheritance came to the said person so seized by descent, devise or gift of some one. of his or her ancestors, in which case all those who are not of the blood of such ancestor shall be excluded from such inheritance.’

This language is the same as that in the same section prior to the 1915 amendment (2 Comp. Stat. p. 1920), and the same as since its subsequent amendment by the act of March 29th, 1917. P. L. 1917 p. 845.

The admitted facts are: J ames Wills died intestate May 35th, 191C, leaving a widow, Mary Elizabeth Wills, and two sons, Alfred and James J. A tract of land owned by James Wills at his death admittedly' then descended to his two sons, subject to the dower of his widow, who was the mother of Alfred and James J. Wills.

Alfred died August 11th, 1916, intestate, unmarried and without issue. At his death his undivided one-half interest in the land admittedly descended to his brother James J. This constituted James J. owner of the entire tract of land, subject to his mother’s dower estate; but it will be noted that an undivided one-half of the tract came to James J. by immediate descent from his father, whereas the remaining undivided one-half came to him by immediate descent from his brother, who had previously inherited it from his father.

James J. died January 15th, 1917, intestate, unmarried and without issue. It is admitted that the widow — mother of James J. and Alfred — who was then alive, could not take. This is because the whole inheritance of James J. came to him' “from the part of his father by descent.” Section 4 of the act provides that in such case the title shall descend as if such person so seized had survived his mother. This language “from the part of his or her father by descent” has been determined to mean from the line of his or her father (Banta v. Demarest, 24 N. J. Law 431), hence all parties here in interest formally admit that the mother could not take and that the fee, at the death of James J., passed in accordance with the provisions of section 6 of the act, subject to the mother’s dower. She has since died.

Tlie present controversy is between complainants, wlio are two brothers and a sister of James Wills, from whom the inheritance originally came, and defendants, who are the brothers and sister of the widow of James Wills — mother of Alfred and James J. It is admitted by defendants that the undivided' one-half of the tract which descended to James J. immediately from his father has become vested in complainants, as brothers and sister of James; but it is claimed by defendants that the other undivided one-half which James J. inherited immediately from his brother Alfred is shared equally by the brothers and sister of James and the brothers and sister of Mary Elizabeth, the widow of Janies, by reason of the provisions of section 6 .of the act.

The first part of section 6 of the act specifically provides as contended by defendants; but those provisions are followed by these qualifying words: .

“Unless where such inheritance came to the said person so seized by descent, devise or gift of some one of his or her ancestors, in which case all those who are not of the blood of such ancestor shall be excluded from such inheritance.”

If this quoted language, like the qualifying language of section 4 of the act, is to be construed as meaning from the line of the father of James J., then the brothers and sister of the mother of James J. take nothing;' but if construed to contemplate only the person from whom the descent immediately came, then the brothers and sister of the mother of James J. share, since they are clearly of the blood of Alfred, from whom the controverted one-half interest immediately came.

If this inquiry were wholly divorced from the appropriate influence of prior adjudications, I should incline to the view that similar import should be given to the qualifying language of sections 4 and 6. But in Den v. Searing, 8 N. J. Law 340, our supreme court construed the identical language here under consideration to mean the immediate ancestor and not one more remote from whom the descent may have come through the person last seized. In that case the court was giving consideration to the fifth section of the act which relates to the rights of half-bloods; but the language there construed was the identical language here involved. In the opinion written by the chief - justice-it is there said: “The words ‘such ancestor’ used in the proviso, clearly mean and are exclusively confined to the ancestor from whom the lands came immediate^ to the person dying-seized, and do not embrace other or more remote ancestors, although the lands may have passed from or through such ancestors to the immediate ancestor.”

In tracing back our descent legislation it will be found that the language here under consideration was first used in the act of February 15th, 1816. P. L. 1816 p. 26. That act repealed the third section of the act of May 21th, 1780 (Pail. L. p. 4-3) —our first Descent act — which section so repealed related to rights of half-bloods, and substituted in place of the repealed section rights of half-bloods as they aj:e now defined in section 5 of our present act. In the act of 1816 the qualifying language in favor of the blood of the ancestor is identical with that now found in both the fifth and sixth sections of our present act. The provisions of the sixth section were first adopted in the act of January 29th, 1817. Rev. L.-60S. It accordingly seems impossible to give to the language of section 6 a construction different from the same language first used in section 5; that as already stated has been held by our supreme court as contemplating the immediate ancestor.

It is urged in behalf of complainants that the word “ancestor” should not be understood to embrace a brother. The popular meaning of ancestor may be said 'to be one from whom a person lineally descended; but in its technical sense, as used in statutes of descent, the term ordinarily means any one from whom an estate is inherited. The array of authorities collected in 2 C. J. 1334- appear to be reasonably conclusive to that effect. See also 2 Am. & Eng. Encycl. L. (2d ed.) 319; 14 Cyc. 28-47.

In Cook v. Mount, 37 N. J. L. J. 4, Judge Dungan, in.a carefully prepared opinion, construed section 6 of our statute and determined that the language here in question refers to the person from whom the one last seized derived title, and not to an ancestor more remote from whom the immediate ancestor derived title by devise.

In view of the authorities referred to I 'am constrained to hold that the maternal uncles of James J. Wills share with his paternal uncles in the undivided one-half of the land inherited by James J. Wills.from his brother Alfred Wills.


text:
    Richard McAllister et al. v. City of Atlantic City.
    [ Submitted May 9th, 1919.
    Determined May 16th, 1919.]
    1. The absolute inability of a defendant to perform bis undertaking at all, when called upon by a court to do so, precludes a decree against Mm for specific performance.
    2. Specific performance of a covenant in a deed granting to a city land for park purposes that the park would not be obstructed will not lie where the city lias by contract bound itself not to condemn the pier which is claimed to be an obstruction until it condemns other piers, and eomtilainants have acquiesced in that agreement.
    3. Where an answer to a bill for, specific performance shows a defence to the primary relief prayed for, it will not be stricken out on motion even though the alternative relief prayed for might be granted in the pleadings.
    4. Where a deed granting land to a city for park purposes contains a covenant, not forming part of the limitation in the deed, that the park shall remain unobstructed, the land would not revert for breach of covenant because at one end of the park there was a pier, but at most an action for damages might lie.
    On bill .for relief. On hearing on motion of complainant to strike out answer of defendant.

      Mr. Clarence L. Cole, for the complainants.

      Mr. Joseph B. Persl&ie, for the defendant.
   Leaming, V. C.

I am convinced that complainants’ motion to strike out defendant’s answer must be denied.

1. The bill seeks to compel defendant municipality to specifically perform a covenant contained in a deed of conveyance made to the municipality pursuant to chapter 93 of the laws of 1894. P. L. 1894. p. 146. The covenant is to the effect that the land conveyed, which land was conveyed for park purposes, should be forever "open and unobstructed.” What is known as Heinz Pier crosses the outer corner of the premises conveyed; to that extent the land conveyed to the municipality is not open and unobstructed. The facts set forth in the answer are substantially the same as those contained in the plea filed in McAllister v. Atlantic City, 99 N. J. Law 93; affirmed, 91 N. J. Law 701. Among other things, it avers that it is impossible for the municipality to comply with the covenant at this time. The absolute inability of a defendant to perform his undertaking at all, when called upon by a court to do so, obviously prevents a decree against him for its specific performance. Pom. Cont. (Spec. Perf.) (2d ed.) § 293. But this impossibility of performance, as set forth in the answer, appears to have arisen, in part, at least, from an agreement which the city lias made with the owner of the pier. The answer discloses that the city is bound by an agreement made by it with the owner of the pier, to the effect that it would not interfere with the possession of the pier by its owner in its present location, except by condemnation proceedings instituted against all piers on the ocean front in-pursuance of a scheme for the acquirement by the city of all lands within the beach front'park; the answer avers that four other piers exist on the ocean front and that funds cannot be procured for their acquirement by reason of the statutory limitation of the amount of the city’s indebtedness. This agreement, touching uniform condemnation of all piers, the answer asserts, was made at the time complainants’ deed to the city was made; at that time, according to the answer, complainants had petitioned the city to move the ocean front boardwalk oceanward, to the end that the land between the old and new locations of the boardwalk could be utilized by complainants for commercial use; that the inner end of Heinz Pier then occupied a part of tills intervening land, and to accomplish the end then desired by complainants, it was necessary to procure the removal of that part of the pier and have it connected with, the boardwalk in its nc-w location; that the agreement, contemplating that the part of the pier oceanward of the new location of the boardwalk should not be disturbed except by carrying out a general scheme of condemnation of all piers, was rendered necessary to accomplish the end then sought by complainants and was executed with complainants’ knowledge and enured to- their benefit; that the removal of the boardwalk oceanward and the removal of the pier from the intervening space, and the execution of the agreement touching the remaining part of the pier, were all parts of one plan, and the resulting benefits to flow therefrom to complainants afforded the real consideration of the deed made by complainants to the city. These averments cf the answer are not entirely specific touching the extent complainants participated in and encouraged the execution of the pier agreement; but I think that the averments taken together may be said to disclose sufficient acquiescence of complainants in the execution of the agreement as an essential part of the general plan enuring to their benefit to equitably afford a bar to their now seeking relief inconsistent with the agreement. If complainants’ deed to the city was in fact made to procure the removal of the boardwalk oceanward with knowledge of the fact that its removal and the removal of the inner end of the pier was to be accomplished through or in part through the instrumentality of the agreement referred to, it seems to me clear that they cannot now equitably seek to compel the city to pursue a course of action in repudiation of that agreement. It follows that even though the impossibility of performance asserted by the answer may be said to be wholly predicated upon the agreement of the city not to condemn the pier here in question without also condemning the other piers, the impossibility of performance must be deemed absolute, so far as complainants are concerned, since complainants’'acquiescence in the agreement for the purpose stated must be regarded as an equitable bar to relief 'in behalf of complainants which, if granted, would compel tlie city to violate the agreement.

Whether in'the absence of acquiescence on the part of complainants in the pier agreement referred to this court can properly compel a municipality to' specifically perform a covenant, the performance of which will be violative of another covenant made in good faith by the municipality, need not be here considered. But it would seem that any suggestion that the city should not have thus bound itself by agreement necessarily enters the field of discretion which the legislative act confers upon the city, since no time is specified in the act within which the general scheme shall be accomplished; it, according!]', must be here assumed that the agreement was made by the city to facilitate the ultimate accomplishment of the general scheme.

2. The bill also prays that in default of a decree for specific performance of the covenant contained in complainants’ deed, a decree may be made declaring tlie deed to be null and void.

As already stated, the deed from complainants to the city was made pursuant to the legislative act of 189d. P. L. 1894 p. 146. Section 3 of that act authorizes the city to acquire the lands by purchase or condemnation and in no way forbids the acquisition of an absolute estate by the city, but requires that the lands so acquired shall be devoted “exclusively to public use as a public park or place for public resort and recreation, and to keep the same forever open and unobstructed for such public use.” Section 5 of the act authorizes the city to accept from landowners a dedication of the land for the uses and purposes named in section 3, and in so doing to agree with the owners to change the location of the boardwalk so that tlie owners may secure the benefit of the territory intervening between such old and new boardwalk locations. ,

The deed of conveyance from complainants to the city recites, among other things, that the city is proceeding under the act above referred to-to establish a public park and is to remove the boardwalk oceanward to tlie inner line of the park tract and then expresses as a consideration for the conveyance one dollar and the benefits to be derived by tbe vendors by the laying out of the park and building tlie boardwalk and the further consideration that the vendors’.land will not be condemned. Its words of grant are:

“Give, grant, bargain, sell and convey to tlie said party of the second part, and its successors, all their, and each of their right, title and interest in and to the above described tract.”

Its Iw.bendu-m and ien-endum is:

“To have and to hold the said premises with all and singular the appurtenances, unto the said party of the second part, and its successors, for and only for use as a public park or place of resort and recreation, giving to said party of the second part, and to its successors, however, the right to construct, reconstruct, repair, complete and maintain upon the land so conveyed along the interior or inland line of said park or place for public resort as established as aforesaid, an elevated public boardwalk, in accordance with the provisions of said act, but subject to the following conditions and restrictions: That no railroad nor street railway shall ever be constructed, operated or maintained over, upon or across any portion of the premises hereby granted and conveyed, and that the said land shall never be used for any railroad purposes or uses whatever.”

Then follows a series of covenants on the part of the municipality. The city covenants, first, to maintain the newly-located boardwalk. Second, to permit the complainants to connect their lands and properties with the new boardwalk by proper approaches. Third, that when by accretions high-water mark shall have receded to a point three hundred feet to again remove the boardwalk three hundred feet oceanward, and when so removed the dedicated land within or landward of such new location shall ho released from the dedication and revert to complainants, their heirs and assigns. Eourth,

“That the lands hereby granted and dedicated to public use shall forever be and remain open, so that the view oceanward from the said elevated public walk erected and to be erected as above mentioned shall be free, open and unobstructed, and that no use shall be made of the said land by the grantee, its successors or assigns, inconsistent with its use as a prrblic park or place for public resort and recreation.”

Complainants, accordingly, contend that the failure of the city to cause that portion of the pier which crosses the outer corner of the tract conveyed to be removed is in violation of the covenant above quoted, and seeks a decree declaring the grant null and void in the event of the failure of the citj to comply with the covenant. It is urged that if the answer affords a defence to specific performance, it affords no defence to the alternative relief sought.

It seems obvious that if the answer affords a defence to the primary relief of specific performance sought by the bill, it cannot be stricken out on motion for that purpose, even though il should be thought that the alternative relief sought might be sustained on the pleadings.

But it may not be inappropriate to here suggest, without at this time determining, that complainants’ remedy in the circumstances stated is not a decree declaring the grant null and void. It may be tentatively conceded that the estate granted is a determinable fee, and that as such the city’s abandonment of the use of the land “as a public park or place of resort and recreation,” would be operative to determine it. But the answer • fully discloses that no such abandonment has occurred. The irtmost that has occur] ed has been the failure of the city to free an outer corner of the land from the occupancy of the pier, and this pier, thci*answer avers, is necessary for purposes of health and recreation of the public, and is so used. But even conceding that the occupancy of this outer corner of the land by the pier for the purposes stated is violative of the covenant which the city has made touching its obligations to complainants, it does not follow that the breach of covenant in the limited respect stated, which covenant forms no part of the limitation expressed in the deed, is operative to divest the city’s estate in the lands and cause the title to revert to complainants. Camden, Atlantic and Ventnor Land Co. v. West Jersey and Seashore Railway Co. (New Jersey Court of Errors and Appeals), 105 Atl. Rep. 229. If complainants have suffered appreciable damages through breach of this covenant the law courts would seem to be the appropriate tribunals for relief.

I will deny the motion to strike out the answer.


text:
    Armenia G. Erdmann v. A. Pierce Gregg et al.
    [Submitted June 23d, 1919.
    Determined June 25th, 1919.]
    1. It is within the (jurisdiction of this court to entertain a bill to rescind and cancel a contract procured through coercion, misrepresentation, or any other fraudulent means, and in such suit to enjoin proceedings at law for the enforcement of the contract, and also to award recovery of the money paid under and by reason of the fraudulent contract. Whether the jurisdiction should be exercised, however, depends upon the circumstances of each particular case.
    2. Where a successful defence at law would afford but partial relief to complainant in this suit, that is alone a justification for the reten-, tion of the bill.
    3. The averments in the bill and affidavit in this case held to allege sufficient to justify a restraint of a trial at law until final hearing in tliis court.
    On bill for injunction and relief. Hearing on return of order to show cause.

      Mr. Lee F. Washington, for the complainant.

      Messrs. Bourgeois ¿G Coulomb, for the defendants.
   Leaming, V. C.

The bill in this suit seeks the rescission and cancellation of a . written contract signed by complainant for the purchase of certain improved real estate and the recovery from defendants of the part of the purchase price which complainant paid when the contract was signed, and also seeks an injunction preventing-defendant suing at la-w on the contract for the recovery of the unpaid portion of the stipulated purchase price. .

At the return of an order to show cause why an injunction pendente'liie should not be issued pursuant to the prayer of the bill defendants appeared and cjeclined to file counter affidavits, and rested their defence to preliminary restraint upon an objection that the averments of the bill and the affidavits accompanying it were insufficient to justify the relief sought.

This objection necessitates a consideration of the specific aver-' menta of the bill and its supporting affidavits, and of the jurisdiction of this .court in cases of this nature.

The theory of the bill, briefly stated, is that defendants and one Carpenter, acting in collusion, in order to coerce complainant and induce her .to buy at an excessive price a property owned by defendants, informed complainant that it would be necessary for her to vacate in six days the property she then occupied with her insane husband, and that no property was available for complainant except one owned by defendant which was worth $15,200; that complainant was wholly without business experience and was overwrought by the fear of being turned out of her home with an insane husband and with no place to go, and had no one but defendants and Carpenter to advise her, and accordingly relied upon the representations so made to her and signed a contract to purchase for $15,200 the property owned by defendants and paid them on account two $500 Liberty Bonds; that the property so purchased is assessed for purposes of taxation at $4,470- and is worth at most $9,000.

It is clearly within the jurisdiction of this court to entertain a bill to rescind and cancel a contract procured through coercion, misrepresentation, or any other fraudulent means, and in such suit to enjoin proceedings at law for the enforcement of the contract, and also to award recovery of the money paid under and by reason of the fraudulent contract. The ancient jurisdiction of the court of chancery of England in this class of cases, as defined in 2 Pom. Eq. Jur. § 912, obtains in this state. See to that effect Eggers v. Anderson, 63 N. J. Eq. 264, 271. Whether the jurisdiction should be exercised, however, depends upon the circumstances of the particular case. In this suit the circumstance that a successful defence at. law to an action for the balance of the purchase price would afford but partial relief to complainant herein is alone a justification for retention of the bill.

It accordingly remaims to inquire whether the averments of the bill and supporting affidavits adequately establish a prima facie case of fraud.

The bill and the affidavit of complainant aver that the signature of complainant to the contract was procured through fraud on the part of the defendants; but general averments of fraud may be disregarded unless facts are disclosed which reasonably establish the fraud alleged. The great disparity between the contract price and the real value, standing alone, would aid complainant little even though it approaches proportions from which fraud is presumed, and representations as to value are ordinarily treated as mere matters of opinion. See Wise v. Fuller, 29 N. J. Eq. 257. But when the excessive purchase price and misrepresentations as to value are considered in connection with the additional facts already referred to, a situation is presented which in my judgment reasonably discloses fraudulent imposition. The contrast between two persons on equal footing negotiating the sale and purchase of a property, and that of a vendor making sale in the circumstances stated in the bill is obvious. Assuming the averments of the bill to be true it seems impossible to escape the conclusion that defendants not only brought about the emergent conditions which rendered it necessary for complainant to purchase a property in haste by reason of her distress, but also wrongfully took advantage of and misused for their own benefit the trust and confidence invited by them and reposed in them by complainant and thus precluded tbe exercise of a free or intelligent or deliberate or voluntary judgment on the part of complainant, and in that manner secured for themselves a purchase price so far in excess of real value as to be in itself almost if not quite presumptive of fraud.

I am convinced that this court should proceed to final hearing of the suit and restrain any trial at law in the interim.

But since at final hearing relief may be denied I see no reason why defendants should not, if so advised, institute a suit at law for the balance of the purchase price and in that manner procure a favorable place upon the trial list of the law court to the end that the action at law may be promptly tried in the event that the bill should be dismissed at final hearing. The restraint will accordingly be limited to the trial of an action at law pending final hearing in this suit.


text:
    Abram Pitel, petitioner, v. Anna Pitel.
    [Submitted May 1st, 1919.
    Determined May 1st, 1919.]
    1. Where a wife was not entitled to enforce support from her husband up to August, 1915, her bill for maintenance having been dismissed, on petition for alimony pendente lite, on the allegation that her husband deserted her in June, 1914, her husband’s responsibility for her support is res adjudicada up to August, 1915.
    2. Where a wife became an obstinate deserter in August, 1915, she is not entitled to an award of alimony pendente lite in the husband’s suit for divorce on the ground of desertion.
    3. In the husband’s suit fdr divorce on the ground of desertion the denial in the wife's answer of continuous desertion for two years since a certain date, entitled the wife to an allowance of counsel fees to enable her to defend.
    On petition for divorce. On hearing on petition of defendant for alimony pendente lite.

      Mr. Herbert O. Barilell, for the defendant-petitioner,
    ilir. Royal P. Tidier, for Abram Pitel, petitioner.
   Leaming, V. C.

By the petition filed herein Abram Pitel seeks a divorce from his wife on the ground of statutory desertion. The desertion is alleged to have occurred in August, 1915, and to have continued, since that time.

Defendant by her answer denies any desertion on her part and by way of cross-petition seeks a divorce from the husband for desertion, alleging the desertion to have occurred.June 5th, 1914, and to have continued since that time.

Petitioner, the husband, lias answered the cross-petition denying the desertion therein alleged and setting forth that the issue raised by the cross-petition has been heretofore determined by this court in a suit in which defendant was complainant and the petitioner herein was defendant.

Cross-petitioner herein has now filed in this cause a petition for alimony pendente lite. In that petition, verified by her affidavit, she states that the charge of desertion made by her husband is untrue and that the truth is that her husband deserted her June 5th, 1914, and that his desertion has continued since that time; her petition for alimony further specifically sets forth certain abuse and neglect by lier husband on and prior to June 5th, 1914.

The husband has answered the petition for alimony by a verified answer, setting forth that on August 8th, 1916, his wife filed in this court a hill of complaint against him for maintenance, which bill contained substantially the same averments made in her present petition for alimony pendente lite, and'that he then answered the bill for maintenance by denials of the desertion therein alleged and by averments that his wife had deserted him ; that the cause proceeded to final hearing and a final decree was entered therein in this court July 10th, 1917, dismissing his wife’s bill, and that the decree of this court was thereafter affirmed by the court of errors and appeals. The affidavit and exhibits of that court record, which are annexed to the answer to the present petition for alimony, fully disclose that the issue then heard and disposed of by this court was whether the husband had at that time by his conduct brought himself within the provisions of tlic twenty-sixth section of our Divorce act by abandoning bis wife or separating himself from her and refusing or neglecting to maintain and provide for her, and that to support the affirmative of that issue- the wife relied upon substantially the same averments which are now contained in her petition for alimony pendente Hie, while in that suit the husband denied those averments and also claimed successive efforts on his part to induce his wife to live with him, which efforts had continued down to about the time at which the desertion of the wife is now alleged in the husband’s petition for divorce to have occurred. The exhibits annexed to the answer of the husband to the wife’s present petition for alimony also disclose ■ that these issues were resolved by the court against the wife and that the) were so resolved especially because of the efforts of the husband to induce his wife to live with him; the 'court specifically found those efforts on the part of the husband to have been sincere on his part and to have been improperly resisted upon the part of the wife. It is thus made to appear that the former litigation arose from a separation of the parties which occurred June 5th, 1914 (the date the wife now alleges her husband deserted her), and which separation was claimed by each party to have been the fault of the other, and that the husband further defended upon the further claim that since the separation and down to August, 1915 (the date he now alleges as the date of his wife’s desertion), he had made repeated efforts to induce his wife to live with him; and that the court by findings of fact ascertained that the wife had wrongfully refused to accede to her husband’s efforts to induce her to return to him, and, accordingly, dismissed her lull.

Upon this record it is clear that it must now be accepted as an adjudicated fact between these parties that up to the date last referred to the wife was not entitled to enforce support from her husband. That issue is clearly res adjudícala. Smith v. Smith, 156 N. J. Eq. 223; Freund v. Freund, 71 N. J. Eq. 524; S. C. on appeal, 72 N. J. Eq. 943; Lake v. Lake (Court of Chancery), 89 Atl. Rep. 534; Wilber v. Wilber (Court of Chancery), 90 N. J. Eq. 7. It would also seem that at the final hearing of the present suit the wife must be regarded as an obstinate deserter of her husband on the date last named (August, 1915), since the court then determined that on that date, and prior thereto, the husband had in good faith endeavored to induce his wife to return to him and that she had wrongfully refused to do so. That question, however, is not for final determination at this time.

Tlie wife’s petition for alimony pendente lite is wholly silent, touching any specific matters which may have transpired since that date; no averment is made by her showing any change of attitude on her part toward her husband, or on his part toward her, since that time.

In these circumstances I am clearly unable to award her alimony pendente Hie in the present suit.

In the wife’s answer to the petition for divorce she denies continuous desertion for two years since August, 1915. That denial alone, aside from her cross-petition, involves an investigation of .the relations of the parties since that time and entitles the wife to an allowance to enable her to defend. I will, accordingly, allow her a counsel fee of $25.


text:
    Esther A. Griscom v. Jean Barcelonne and Ambassador Hotel Corporation.
    [Submitted June 20th, 1919.
    Determined July 2d, 1919.]
    1. The fact that a grantor, at or about the time it conveyed a block of lots with a restrictive covenant, conveyed to the same person another adjacent block of lots without the restrictive covenant, constitutes no defence to the right of an owner of one of the lots.in the restricted block to enforce the restrictive covenant.
    2. A hotel company which had 'no public bar and no place where liquor could be purchased except as it was ordered for service at a table, and served from a room to which the guests had no entry, was running a “public drinking house” within the restrictive covenant in the deed under consideration.
    3. A restrictive covenant in a deed will not bo enforced unless its • meaning is clear and free from doubt.
    4. A covenaut in a deed that the 'grantee shall not use the premises described to erect on said premises any building to be used for certain purposes, does not relate alone to the erection of a building for any of the purposes named, but prohibits such use of buildings already built.

      On bill for injunction. On hearing on return of order to show cause for injunction pendente lite.

      Mr. Norman Grey (by Mr. Albert E. Scheflin), for the complainant.

      Mr. Clarence L. Cole, for the defendants.
   Leaming, V. C.

By the bill filed herein complainant seeks to' enforce the observance of a restrictive covenant contained in deeds of conveyance of what is commonly known as the Chelsea, tract at Atlantic City. Defendant hotel company has erected a hotel upon its property and has procured a license for the sale of intoxicating liquors therein. The bill seeks to prevent such sales.

The following covenants, among others, are contained in the deed under which defendant company holds title to the lots on which its hotel is erected:

“It being expressly' understood and agreed that the said grantee and his heirs and assigns shall not at any time hereafter use said premises to erect or cause to be erected or .set up upon said premises any building to be used as a house of prostitution, gambling-house, public drinking-house or other establishment in the nature thereof * * *.
“And it is expressly understood and agreed that the said several covenants on the part of the said party of the second part above specified shall attach to and run with the land, and it shall ‘be lawful not only for the said The Chelsea Beach Company and their successors and assigns. but also for the owner or owners of any lot or lots adjoining in the neighborhood of the promises hereby granted deriving title from or through the said The Chelsea Beach Company'to institute and prosecute any proceedings at law or in equity against the person or persons violating or threatening to violate, the same, it being .understood, however, that this covenant is not to he enforced personally for damages againsl the said party of the .second part, his heirs or assigns, unless lie or they be the. owner or owners of the said premises, or some part thereof, at the time of the violation of the said covenant or of a threatened or attempted violation thereof; but said covenant may be proceeded in for an injunction of- and for a specific execution thereof against the said party of the second part, his heirs and assigns, and for damages against the party or parties violating the said covenants or their heirs, executors or assigns. The object of these covenants -being to secure the health, beauty, ornamentation and value of the promises.”

It will be observed that defendant has not only covenanted that the covenant here in question shall “attach to and run with” its land, but also that the owners-of any lot or lots adjoining in the neighborhood of defendant’s lots deriving title from the Chelsea Beach Company may prosecute a suit in equity to restrain defendant from violating the covenant. Complainant owns such lots and derives title from the Chelsea Beach Company.

August 22d, 1893, the Chelsea Beach Company conveyed a large tract of land, which embraced both complainant’s and defendants’ lots, to Clement J. Adams by deed containing the covenants above quoted; on the same day Adams conveyed the same tract to -the Chelsea Land and Improvement Company by deed of conveyance containing the same restrictive covenants, and thereafter that company made sales of lots comprised within the tract by deeds of conveyance containing the same covenants; complainant and defendants respectively hold under the Chelsea Beach Company by chains of title in which all the conveyances contain the covenant here in question.

The bill does not specifically aver that the Chelsea Beach Company or the Chelsea Land and Improvement Company determined upon a general scheme or plan of development of the tract ■covered by the deeds above referred to through the medium of these restrictive covenants; but it seems clear that by the terms •of the covenants contained in the deeds held by complainant and -defendant respectively, and contained in all the deeds in their respective chains of titles, a right is conferred upon each to enforce against the other the observance of these covenants. The circumstance urged by defendant that the Chelsea Beach Company at or about the same time it conveyed to Adams the tract above referred to, with the restrictive covenant imposed on the tract so ■conveyed, conveyed to Adams an adjacent tract without restrictive covenants, and that on part of the latter tract liquor has been •sold, appears to me to constitute no defence to the present right •of complainant to enforce the covenant against defendant.

It is further urged by defendant that the hotel owned by defendant is not a “public drinking-house.” This claim is based upon an affidavit disclosing that the hotel of defendant has no public bar or buffet, “and no place where any guest can purchase liquor except as it may be ordered for service at a table and served not from a bar or buffet but from a room to which, the guest or patron has no entry.” The covenant, in its terms, forbids a “public drinking-house or other establishment in the nature thereof.” The defensive claim is that since a patron for drinks must be seated at a table and have his drinks served at the table from a room to which the public has no access, the house cannot properly be regarded as a public drinking-house or as an establishment of that nature. It is not claimed that the drinks are only-served with meals; the distinctive feature urged is that the drinker must sit and drink at a table and is not permitted to enter the room from which the drinks are served. Whether the public will drink less when required to sit in a room removed from the inspiring glitter of a bar does not appear; yet that seems to me to be the only element that can be regarded as a substantial distinguishing feature of the two situations. Unless it can be. shown that this sacrifice of bar-glitter has prevented or will prevent public patronage for drinks, I am unable to adopt the view that a hotel with license to sell intoxicating liquors and which proposes to sell in the manner described by defendant.is not a “public drinking-house” or an “establishment of that nature.”

The further claim is made by defendant that the covenant is restrictive only of the erection of a drinking-house and not restrictive of its use. The well-established rule to the effect that a covenant of this nature will not be enforced unless its meaning is clear and free from doubt is relied on. But the claim that this covenant merely forbids the erection of buildings suitable for use for the purposes named, and does not forbid their use for those purposes after erected, appeals to me as wholly without substance. The covenant is:

“Shall not at any lime hereafter use said premises to erect or cause to be erected or set up upon said premises any building- to be used as a house of prostitution, gambling-house, public drinking-liouse or other-establishment in the nature thereof.”

There are no distinguishing architectural features of a gambling-house or a liouse of prostitution or a building to be used as a public drinking-house. A bar, if it appeared in the designs, might distinguish the latter, but the bar would yet be harmless unless and ’until used as' such. Any building, however constructed, and for whatever innocent purpose constructed, might be used for any of the purposes named. The covenant cannot, in my judgment, be understood as relating alone to the erection of a building for tlie purposes named without wholly disregarding its obvious purpose and intent; its plain meaning, as it would necessarily be understood by any person entering into it, is to inhibit the use of establishments of the nature specified.

I will advise an injunction pursuant to the prayer of the bill.


author: Lewis, V. C.

text:
    Lembeck & Betz Eagle Brewing Company, a corporation, v. Mike Barbi et al.
    [Decided March 21st, 1919.]
    1. A first and second mortgage to a building and loan association, prior in time to another to a brewing company, never having been canceled of record, will take precedence over the mortgage given the brewing company, although the building and loan association included them in still another mortgage to it, which itself may be subsequent to the mortgage to the brewing company.
    2. Every grantee is bound by everything that appears in his deed.
    3. A grantee is chargeable with knowledge of the title of his grantor as it exists in unbroken sequence on the records of the clerk’s office.
    4. A deed or mortgage made by a grantor in a fictitious name, good as between the parties, is not good as against a purchaser for value without actual or constructive, notice.
    5. Where a mortgage was recorded in a name not the name of the real maker, such mortgage was not constructive notice to a subsequent mortgagee.
    6. The recording of a deed to a man and his wife by the name of “Borbely” was constructive notice of tlie real names of the owners of the land to a mortgagee who took from them a mortgage in the name of “Barbi,” sometimes known as “Bavboe.”

      On pleadings and proofs.

      Mr. D. Eugene 'Blankenhorn, for tire 'complainant.

      Mr. Adrian Lyon, for the defendant Citizens’ Building and Loan Association.
   Lewis, V. C.

In June of 1908, Michael Borbely applied to the Citizen's’ Building and Loan Association of Perth Amboy, New Jersej', for a loan of $800 on lot 8 on the northwest corner of LaYrence and Pine streets, in that city, being twenty-five feet wide by eighty-five feet deep, producing his deed frpm Hoyen and Ostergaard, bearing date March 11th, 1908, recorded March 20th, 1908, which deed was made out to him and his wife under the name and spelling as follows: “Michael Borbely and Elizabeth, his wife.”,

He was not known by any other name to the solicitor who drew up the bond and mortgage. The bond and mortgage were drawn in the names as they apj>eared in the deed, but when signed by Borbely and his wife,' the signatures looked like “Mezk Barbily,” and “lizi Bourbi,” or a.s nearly in that way- as can be made out from the signatures.

The solicitor procured a search of title to the lot, made by the county clerk of Middlesex county, which showed the deed and mortgage and two lien- claims, both of which were against Michael Borbely and Elizabeth Borbely.

The mortgagors applied for a further loan of $300 which ■was granted, which bond and mortgage arc dated August 5th, 1908. In this second bond and mortgage the names were used as in the prior mortgage and were signed in exactly the same way, with the exception that on the mortgage the wife seems to have spelled her last name “Barbie” or “Barbei.”

The mortgagors had a pass-book made out in the names as given on the deed and in the mortgages, and continued to make payments on account of the mortgages until October of 1912, when they had reduced the amount to the sum of $S76'.5S. At that time they applied for -a further loan of $1,800 which was to include the amount due on the two former mortgages, and the balancé clue on an additional lot known as Lot No. 7, adjoining. This loan was granted, and another deed for Lot No. 7 was brought to the building association’s solicitor, made out in exactly the same manner as the other deed, namelj-, “Michael Borbely and Elizabeth Borbely, his wife,” which was dated October 21st, 1912, and recorded November 11th, 191A

A new mortgage was made out to the association for the sum of $1,800, covering both lots, using the names as they had been given. A search was -made on the two lots, which showed the two deeds, the two prior mortgages and the two lien claims already referred to. The search was made against Michael Borbely and Elizabeth Borbety, the names appearing in the deeds, neither the searcher nor the solicitor of the building and loan association knowing that the parties went under any other name- than that given in the deed and prior mortgages. The new mortgage was executed and acknowledged and recorded.

Borbely was a liquor dealer, and on May 11th, 1910, over two years before the execution and recording of the $1,800 mortgage, he gave a mortgage to the complainant for $800, which mortgage was recorded on May 15th, 191Q. This mortgage was made out in the name of “Mike Barbi and Lizzie Barbi,” sometimes known as “Barboe,” and purported to cover property on the corner of the two streets, twenty-five feet wide by one hundred feet deep, which, as a matter of fact, was a greater depth by fifteen feet than the parties dwned. The name on the book of the brewing company produced in evidence was “Babey.”

. It is admitted that the mortgagors in the mortgages to the building and loan association are the same who executed the mortgage to the complainant.

The question in issue is, whether the mortgage of complainant is prior to that for $1,800 held by the association.

The first and second mortgage, never having been canceled of record, will undoubtedly take precedence of the mortgage given to the brewery company, notwithstanding that the building and loan association included them in the mortgage for $1,800. That appears to be quite plain and needs no discussion.

The question is narrowed down, therefore, to whether the brewery mortgage will -take precedence of the last mortgage given by the building association, less the amount due on the first and second mortgage.

The complainant contends that the mortgagors held, themselves out at “Barbi” or “Borbi” to the knowledge of the building and loan association, because the association had in its possession at the time of the making of the $1,800 mortgage two bonds and two mortgages which were so signed by these parties.

Of course, every grantee is bound by everything that appears in his deed, and a nice question arises whether the building and loan association was put on inquiry from the fact that the names as signed by Borbely and his wife, differed from the names in the body of the instruments and the acknowledgments. The solicitor for the building association testified that if his attention had been carefully directed to the signatures at the time the mortgage was signed, he would merely have supposed that it was an illiterate way that the parties had in writing their names. If Borbely and his wife had signed each of the mortgages and bonds alike, namely, “Mike Barbi” and “Lizzie Barbi,” it would seem that this would have been sufficient to put the building and loan association on inquiry, and if they had followed it up, they would have found the mortgage for $800 to the brewery company.

However, such is not the case. The building and loan association would not have been able, in my opinion, to have found the record of the mortgage given to the brewery association.

Besides this “a grantee is chargeable with knowledge of the title of his grantor as it exists in unbroken sequence on the records of the clerk’s office.” Wallace v. John Silsby and Henry Marlin, 42 N. J. Law 1.

In that ease Chief-Justice Beasley held: “That the title of the grantor, as it appears in regular sequence and unbroken continuity on the record, is a fact within the consciousness of the grantee at the time that he accepts his conveyance, is a conclusion juris el ele jure. This is a doctrine which I do not think has ever been brought into doubt in this state.” See also Losey v. Simpson, 11 N. J. Eq. 249.

This would seem to indicate that the brewing compan}' must be held to have known that the property stood in the name of-Michael Borbely and Elizabeth, his wife, and for its mortgage to have taken precedence of the building and loan association mortgage of 1912, it was absolutely necessary that it should have been made up in the same of Michael Borbely and Elizabeth, his wife.

Of course, a deed or mortgage made by a grantor in a fictitious name is perfectly good as between the parties themselves, but,, in my opinion, not as against a purchaser for a valuable consideration, who had neither actual nor constructive notice.

Complainant contends that even though the proper name of the mortgagors is Borbely, and that the name by which they mortgaged the land was-fictitious, yet, he being the real owner of the property, and the mortgage having been recorded, it is notice to all subsequent purchasers and mortgagees, citing the following c-ases in support of his contention: Weihl, Probasco & Co. v. C. P. Robertson et al., 97 Tenn. 458; 39 L. R. A. 433; Fallon v. Kehoe, 38 Cal. 44; David v. Williamsburgh City Fire Insurance Co., 83 N. Y. 265.

The case of Mackey v. Cole, 79 Wis. 426, takes the opposite view. In this state the question does not seem to have arisen except indirectly.

1 am, therefore, oil the opinion, that the mortgage of the building and loan association for $1,800 is entitled to priority of payment over the mortgage of the Lembeck & Betz Eagle Brewing Company, because, at the time the building and loan association niortgáge was given, the mortgage of the brewing-company was not constructive notice, inasmuch as it was recorded in the names of the mortgagors in such form that a search in the real names of the owners -would fail to disclose it. If the searcher is charged with the duty of searching for fictitious names, either in the chain of title, or for encumbrances in order to locate instruments of record affecting the premises involved, the recording system -would be a nullity, and the searcher would be helpless, because he has no means of determining what fictitious name may have been employed by a grantor or a mortgagor in a previous deed or encumbrance.

An otherwise perfect chain of title search, based upon a search in the real names of the parties as they appear of record would not be worth the paper it was written on, because you could never tell what outstanding deeds or encumbrances might exist of record affecting the premises in fictitious names.

To sustain the brewing company’s mortgage as the prior lien would be to sustain the illogical and intolerable situation thus outlined, and would make ducks and drakes of the recording system in New Jersey. A search would be useless and the result would be confusion and confusion worse confounded.

Eurthermore, on the pure equities of the situation, the brewing-company was in an undoubted position of ability to protect itself, as well as the building association, against a situation such as has now arisen, by having a chain of title search made which would have disclosed the correct name in which ownership of the premises then stood, and then insisted upon the mortgage being executed accordingly. If that had been done — and in these days no reasonably prudent person takes title or makes a mortgage loan without a search — the brewing company’s mortgage would have been indexed in the same names as the owners, “Borbely,” and the building association’s search made by .Mr. McWilliams in that name would have disclosed the brewing company’s mortgage, and the building association could then have taken appropriate action to protect itself. -The recording of the Borbely deed was unquestionably constructive notice to the brewing company of the real names of the owners.

I will advise a decree in accordance with these views.