source: Caselaw Access Project

author: The President, (Chancellor Williamson.)

license: Public Domain

text:
    Jacob Arnwine, Appellant, and John A. Carroll, Respondent.
    The case in Chanceryisreported ante, page 620.

      W. Hoisted for Appellant, and P. D. Vroom for Respondent.
   The President, (Chancellor Williamson.)

The bill alleges that, on the 15th day of Sept., 1830, Elizabeth Arnwine, the mother of the appellant, and the grand-mother of the respondent, conveyed to the respondent a valuable tract of land in the township of Amwell, in the County of Hunterdon, of the value of six thousand dollars ; that the consideration of the said conveyance was the sum of two thousand dollars; that this consideration money was not paid, but that at the time of the conveyance it was the agreement between the parties to it, that the grantee •should pay the consideration money, upon and after the death of •the grantor, to the appellant, in such sums and at -such times as the appellant might require; that in the mean time, until her death, the grantor should enjoy the -possession of the property ; that the deed was delivered, and to secure to the grantor the possession until her death, the grantee executed to her a lease.

Elizabeth Arnwine is dead, and the complainant, by his bill, now calls for the payment of the consideration money of two thousand dollars.

This is the appellant’s case, as it is made by the bill.. It is •fully denied by the answer, and the burthen of proving it rested, •of course, upon the complainant in the bill. If the case is not proved, it is unnecessary to decide, whether, or how, the principles of law discussed on the argument are applicable to the case. Whether this is to be considered a trust, or what kind of a trust, or whether it should be in writing, are questions of no importance, in deciding this controversy, if the appellant has not proved his case.

It is evident that no monied consideration was paid by the grantee for the conveyance. Connelees Lake drew the deed, at the request of the grantor, and witnessed its execution. He says, he put the consideration of §2,000 in the deed, at the grantor’s request, but saw no money paid. At the time of the execution of the deed, John A. Carroll executed a lease for life, for the same land embraced in the deed, to Elizabeth Arnwine. These papers were exchanged between the parties to them. The subscribing witness testifies to nothing as to the consideration money, or how it was paid; nor, from his testimony, does it appear, that the name of the appellant, Jacob Arwine, was mentioned, at the time of the execution of the papers, except, that the witness says, that about the time of the execution of the deéd, there was something said fey the grantor, that Jacob should have something more than was given him by the will. The will was made nearly two years after the deed was executed. In his answer, the respondent admits, the consideration money mentioned in the deed was not paid, and avers its true consideration to have been natural love and affection. There is no positive evidence to prove this allegation, hut there are strong corroborating circumstances to sustain it. The deed was immediately delivered on its execution. The grantor received from the grantee a lease for the premises during her life, and both went into possession. Two years afterwards, the grantor made her will, devising all her estate, real and personal, except six legacies, of five dollars each, to her grand-son, the grantee, and not mentioning the farm in her will. They lived together until the death of Mr. Arnwine, which was a period of seven years after the deed was executed; and we have the lease executed cotemporaneously with the deed, and the consideration money named in it, the sum of §2,000, corresponding with the sum in the deed as the consideration thereof. The appellant makes no effort to prove, by any one, that at the time of the execution of the deed, or of its delivery, there was any agreement as to the payment of the consideration monies of the character alleged in the bill.

The appellant, to support this allegation, so important to him, and which, indeed, is the foundation of his case, relies upon the ■declarations of Elizabeth Arnwine, made subsequent to the execütion of the deed, in the presence of the respondent; and upon declarations-and admissions made, in various ways, and at different times, by the respondent himself. JThere is considerable testimony of this character, but it all amounts to nothing, when submitted to a careful examination.

In reference to this testimony, it is to be noticed, in the first place, and as a matter of vital importance to its'applicability and efficiency, that not a declaration of Elizabeth Arnwine, or a declaration, or admission, of the respondent, of any such promise or agreement on the part of the respondent as that alleged, was proved to have been made in connection with, or in reference to, the deed in question, or its consideration.

Take the testimony of Elizabeth Warford, the mother of the respondent, and of Margaret Snooks, the complainant’s daughter. These are the important witnesses for the appellant. It. was not argued by counsel, that the case could be sustained without their testimony.

Elizabeth Warford testifies, that she was at the bed-side of Elizabeth Arnwine at her last sickness. The respondent was there. She' says : Then she called defendant up to the bedside, and likewise called me to come and sit down by her, which I did. She told me, that she found defendant a little honry in little things that he was to do. Now, says she, he has promised to pay complainant two thousand dollars. She said, she was now at her last sickness ; that she would never live to get well. She said to me, Betsy 1 I want you to see to him, (and defendant was present.) Defendant said, 0! grand-mother, I will pay uncle Jacob two thousand dollars, honestly.” In this conversation, not a word was said about the' deed. No allusion was made to adeed ; for, on the morning after Mrs. Arnwine’s death, this witness expressed her. surprise upon hearing from the respondent that he had the deed in question. A conversation between this witness and the respondent is relied upon. This conversation referred to the promise which the witness heard the respondent make to his grand-mother,„and being reminded by her of that promise, not in a very kind way, he neither admitted or denied it. How can what this witness testifies to be construed luto a promise, or tire admission of a promise, on the part of the respondent, that the consideration oj the deed, was, in whole, or in part, that ho should pay to Jacob Arnwine the sum of two thousand dollars.

Margaret Snooks5 testimony as to a promise on the part of respondent, is not as strong as that of Elizabeth Warford. Not one word was said in her presence, either by Elizabeth Arnwine, or Carroll, respecting the deed. If any such promise, as that testified to, by either Elizabeth Warford or Margaret Snooks, was made, it was a mere nudum pactum, and cannot be enforced either at law, or in equity. It falls very short of proving the «ase made by the bill, that tlie consideration of the deed was two thousand dollars, to he paid the appellant, upon, and after the death of his mother, in such sums as he might require.

A promise, by respondent, to pay the appellant two thousand dollars, or an admission of such a promise, is testified to by several witnesses ; but there is not one particle of, either positive or circumstantial evidence, to connect such promise, or admission, with the deed. The only circumstance, of any connection, or relationship, between the promise and the consideration expressed in the deed, is the fact, that there was a correspondence, in the amount of money named. The consideration of the. deed was $2,000. The promise was to pay $2,000. Admitting the promise, then, to be satisfactorily proved, it can entitle the appellant to no relief. To make out bis case, upon which he relies,, he must go a step further, and must prove, that the consideration of that promise was the deed, made and executed to John A., Carroll by Elizabeth Arnwine. Having failed in this, the' Court is not called upon to determine, whether, if the case made by the-bill had been proved, they could have afforded the appellant any relief in this suit.

The decree of the Chancellor must be affirmed, with costs; and the record remitted, that the cause may be proceeded in according to law.

Potts and Ogden, Justices, and Arrowsmith, Risley and Wills, Judges, concurred in this opinion.

' Cornelison, Huyler and Valentine, Judges, dissented*.

Decree affirmed.


author: The President, (Ch. Williamson.) Elmer, J.

text:
    Jeremiah Baldwin, Appellant, and Edward Campfield, Respondent.
    The implication of law, that a grantee takes the conveyance in trust for the person who furnishes the purchase money, may he rebutted by proof that the title was put in the granice for the purpose of protecting the property from the creditors of him who furnished the purchase money.
    The case in Chancery is reported ante, page 600.

      A. Whitehead and Wm. L. Dayton for the Appellant.

      F. T. Frelinghuysen for the Respondent.
   The President, (Ch. Williamson.)

On the 7th day of Feb. 1838, Jeremiah Baldwin, the appellant, by deed of bargain and sale, with full covenants, duly executed and acknowledged by himself and wife, conveyed the land and premises, the subject matter of this controversy, to Edward Campfield, the respondent. At the time of this conveyance there was a mortgage incumbrance on the premises of six hundred dollars. As near as can be ascertained, from the evidence before us, this sum, at that time, was not far from the real value of the property. Edward Campfield neglected to put his deed upon record until the 1st day of June, 1839.

In the interval between the date of the deed and the time of its being recorded, to wit, on the 29th of June, 1838, Henry Spicer recovered a judgment against the appellant, for about one hundred and twenty or thirty dollars.

The Sheriff, by virtue of an execution issued upon this judgment, levied upon the land and premises in controversy, and on the 11th day of April, 1840, under this authority, made sale of the same.

Edward Campfield, the respondent, being the highest bidder for the property, the Sheriff, for the sum of one hundred and fifty-five dollars, executed and delivered a deed to Campfield.

Seven years after this sale, the appellant exhibited in the Court of Chancery the bill now before us. The grounds upon which relief is sought are embraced in a small compass.

The bill alleges, that Edward Campfield purchased the property at the Sheriff’s sale for the benefit of the complainant, upon an agreement made between them to that effect; that the purchase money was advanced by the complainant, and that Campfield received the conveyance in trust for the complainant.

The prayer of the bill is, that Campfield be decreed to account for the rents of the property, and to're-convey to Baldwin.

If relief can be obtained, it is upon the ground, only, of a trust resulting from the fact that this property was purchased with the money of Baldwin.

The parol agreement, alleged to have been made between the parties, as to the purchase of this property at the Sheriff’s sale, is wholly inadmissible for any other purpose than to show that the 'purchase money was furnished by Baldwin. The trust results from the fact that the purchase money was paid by him. It is not a trust created by an agreement made between the parties. Then, it would be, not a resulting, but an express trust. I need not stop here to show, that no relief can be afforded upon this bill upon the ground of any parol agreement between the parties. Trusts are express, and implied or resulting trusts. An express trust must be in writing. A resulting trust is a trust which is raised, or created, by act or construction of law-A trust, created by the act of the parties, is an express trust.

There has been great difference of opinion among eminent jurists, as to the admissibility of parol testimony to prove a resulting trust. In Boyd v. McLane, 1 John. C. R. 586, Ch. Kent, after a reference to Sugden v. Sanders, and others, remarks : If the point were res integra, I should be inclined to agree with Sir Thomas Clarke in Lane v. Dighton, Amb. 409, that such evidence is too dangerous in its consequences ; but this objection comes too late, as the rule appears to be well established, and, as he observed, when he was obliged to bow to the authorities, I must not be wiser than my predecessors.”

The learned Chancellor reviews, with his distinguished ability, all the prominent cases bearing upon the question. An examination of them will show a reluctance in the Courts to admit such evidence, and that it has never been received but with great caution.

In the case in 1 Vernon, the answer admitted that the defendant hold the property in trust, but denied the trust set up in the bill, and insisted on the statute of frauds andperjuries, there being no -declaration. in writing of any trust for the plaintiff. The report of the case states, the chief point was, whether when - a man purchases land with his own money and takes the conveyance in another naan’s name, this is such a resulting trust by implication of law as is secured by the statute and needs no declaration of trust. And, after a long debate whether the plaintiff should be admitted to prove the money was his, the proofs were read; and they amounting to only what had passed in discourses, and been owned by the defendant, and the proofs being doubtful, the Master of the Rolls dismissed the plaintiff’s bill, because the proofs vrere not sufficient whereon to ground a decree; and said, there was some secret in the cause, which he did not fully apprehend, and was not made clear upon the proofs. Now, the truth of the fact was, that this great house was bought with design to make a Nunnery of it, and the said Elizabeth Thwing was to be the Lady Abbess ; and that project failing, the defendant set up for himself.

In Bartlett v. Pickers gill (cited in a note to 4 East. 577) there was no written agreement, nor was any part of the purchase money paid by the plaintiff. The parol proof was rejected.

In this case, it, perhaps, sufficiently appears that the purchase money was paid by Baldwin. If this be so, the implication of law is, that the grantee took the conveyance in trust for the person who furnished the purchase money, unless there is something in the relationship of the parties, or in the character or situation of the property, to rebut such presumption. In my opinion, such presumption is rebutted; and I am further of opinion, that the case, as made by the complainant, by his pleadings and proofs, is one not entitled to the favorable consideration of a Court of Equity. A Court of Equity deals with the consciences ■■and the motives of men. It will not countenance fraud however disguised. It will not, because the meditated fraud, from fortuitous circumstances, has not been perpetrated, overlook the fraudulent intent and purpose. Nor will the Court weigh the merit and demerits of fraud doers in nicely balanced scales, for the purpose of determining the least iniquitous of the two. The man who asks its aid, must himself have á good cause and a clear conscience. In the case of Gascoigne v. Thwing et al, 1 Vern. 366, one reason given for the dismissal of the bill was, that the whole case showed some secret in the cause not disclosed/ What is more consonant to our judgment, and native impulse of honesty, as to the principles upon which equity should be administered, than that the suitor whose cause will not bear the statement of the naked truth but must be presented in disguise, is not entitled to relief in a Court of conscience.

As this case is presented by the bill, as well as by the proofs to support it, is it not clear, beyond any doubt, that there is something concealed which is not consistent with honesty, and which both the complainant and defendant have studiously endeavored to cover up from the view of the Court I Is there any one doubts, that the deed of the 7th of Feb’y, 1838, was-executed for the purpose of defrauding Jeremiah Baldwin’s creditors'? Why was the Sheriff’s title made to Campfield'i Was it for convenience, or was it to carry out the original fraudulent purpose the parties had in view 1 It ought not to be forgotten that this bill is sworn to, and that, both in a Court of law and equity, the suppressio veri meets with no more encouragement than a suggestio Jalsi. It would be á loose [morality for the Court of Chancery to countenance, to lay down the rule, that a party approaching that Court, and speaking with the solemnity of an oath upon his conscience, might conceal the truth of his case, because that truth would reveal his own iniquity. This is not the age, nor, I trust, ours the community, in which it is to be expected that any Court will lower its standard of morality.

In order for the appellant to entitle himself to the relief sought, by a decree of the Court of Chancery, on the ground that the payment of the purchase money hy him would raise an implication of a trust in his favor, it was necessary he should move out of his way the deed of the 7th Feb’y, 1838, which, remaining in force, rebutted the implication of a trust arising from the mere fact of his having paid the consideration money at the Sheriff’s sale. Accordingly, an effort is made to avoid the legal effect of this deed in several ways. First, it is alleged in the bill, that Campfield sets up such a deed, by way of pretence, to defeat the trust, and that, if he has such a deed, it was never lawfully delivered.

All that the bill contains in reference to the deed is this :—

“And at other times the said Edward Campfield pretends, that lie holds the title to said premises by virtue, or in pursuance of, some other deed, or conveyance, thereof, from your orator, or some other person; whereas your orator denies, that any such other deed, or conveyance thereof, if any such deed, or convey.ance, he has, was ever lawfully delivered to him, or that he ever paid any consideration for the same ; and he declares and insists, that the truth is, that the said Edward has frequently declared (observe, the bill does not say, that so the complainant declares the truth to be, but, that the said Edward has frequently declared) that he never received any such other deed, or conveyance, and that he had no title for said premises other than such as he derived from said purchase at Sheriff’s sale, and the conveyance thereupon made to him by said Sheriff.”

This is virtually an admission, that such deed was signed, and sealed, and delivered, by the grantor to the grantee, but denying that it was legally delivered ; and the inference is, that because it was not lawfully delivered, therefore it is invalid and should be disregarded. The facts, if it be so, that the deed was without consideration, and that Campfield made the’ declarations alleged, .are no impeachment of the deed. But, if not lawfully delivered, in what respects was the delivery unlawful, and under what circumstances was it delivered 7 If a party seeks redress against a fraud, it will not do for him simply to allege, that he was defrauded ; but he must state, in detail, the circumstances, and must show in what the fraud consists. If he seeks to set aside a deed which has been procured from him under fraudulent pretences and devices, it will not do simply to allege it was not lawfully delivered. He cannot charge in his bill, that it was not lawfully delivered, and sustain such allegation by proof that it was forged.

Who can doubt, from the case made, that the deed was de- ■ livered, and that its purpose was a fraudulent and unlawful one ! Who can doubt, that the Sheriff’s deed was made to Campfield to carry out that same unlawful purpose! What other hypothesis - is there consistent with the whole transaction ! But, it is said,, admitting the original deed to have been fraudulent, it is not clear that the deed from the Sheriff was so, and that if it was not, the respondent ought not to be permitted to protect himself under the-fraudulent deed made to him by the appellant.

There are several answers to this. In the first place, you cannot separate the transactions. If the first deed was made for a fraudulent purpose, the reason why the Sheriff’s deed was made to the son-in-law is apparent. Why was not the Sheriff’s deed made directly to Mr. Baldwin ! If not to carry out the original purpose, why did not the bill state the naked truth of the whole case, and draw the line of distinction between the iniquity of the first, and the honesty of the second transaction». If he had repented of his sin, the best evidence of that repentence was to be looked for in his confession of it. The testimony of Mrs. Mary Hall confirms what is too manifest throughout the whole transaction to be concealed. In reference to the purchase by Campfield, at the Sheriff’s sale, the counsel of the respondent put the question — Did Mrs. Baldwin ever say that the house was ever held by Campfield in trust 1 She replied, yes,, she always said so. I understood the property was bought with that debt on it, and she was to raise the money to pay it. The appellant’s counsel immediately followed up this answer by asking — Did Mrs. Baldwin say that Campfield held the property in trust, or did she say that complainant held it so that their creditors should not take it away from them 1 Answer — I think she expected some other debt was coming .against them. Again — Did you understand that this property was put in Campfield’s hands-only to protect it from creditors? Answer — I always understood so. But my second answer is, that it is putting the bur-then on the wrong party to say that it is the respondent who is seeking to defend himself under the first deed. The appellant claims the benefit of the trust, by implication of law. That implication is rebutted by his own deed, and it is for him to remove that deed, before the implication can be in his favor.

But there is a third and conclusive answer. If the respondent does set up the deed he has a right to do so as between himself and his grantor. Sound morality sanctions it. If Baldwin concocted that conveyance to defraud his creditors, it is u even-handed justice that presents the poisoned chalice to his-own lips.” It is hardly compatible with the principles upon which a Court of equity administers justice, to hunt up some technical rule to protect a party against the consequences of his own fraud. The statute for the prevention of frauds and perjuries declares the deed, as between the grantor and grantee, to be valid; and to deny to the respondent the benefit of this deed, is in violation of the letter, and contravenes the policy of the statute. Any rule, of law or equity, that will prevent the respondent in this case from setting up his deed, must necessarily lead to contravene the policy of the law, which makes a deed fraudulent as against creditors, valid and effectual as between the grantor and grantee. If Baldwin had brought an 'action at law to recover the possession of the premises, Campfield might have set up, in defence, this deed. There is no rule, either of law, or equity, or morality, why he may not use it for the same-purpose in this case.

Again, it is said, the deed in question is proved to have been cancelled by the parties.

Such an issue is not made by the pleadings, and it is no more competent, under the case upon the record, to prove that it was cancelled under a verbal agreement, or arrangement, between the parties, than by a subsequent sealed instrument which effected that object.

But what is the proof of the cancellation 1 The deed being, produced, it appears that the names and seals of the grantors had been torn off and again neatly attached by some material used for the purpose. There is not a particle of proof as to when, "how, or under what circumstances such mutilation was made. The deed, as presented, is perfect, and the circupistanee referred to excites a suspicion only, that the names and seals might have been torn off for the purpose of cancelling the deed. The deed was acknowledged according to law, and duly recorded.

But to my mind there is a most satisfactory answer, and conclusive against the appellant, as to this point. If the mutilation was made by the parties, and for the purpose of destroying ■and cancelling the deed, why did not the bill so allege ? If the ■complainant was unwilling to make such an allegation under oath, •most assuredly it is asking too much of the Court, upon mere suspicion excited by the appearance of the deed, to come to such a conclusion. The charge was, not that the deed was cancelled, but that it was not delivered, and that charge has been met by the answer and been lawfully disposed of. Had the allegation been made in the bill, that the deed had been cancelled, the respondent would have had an opportunity of answering it. He was entitled to that opportunity, and to decide this cause upon any ground which denies him this right would be a palpable violation of the fixed rules and principles upon which equity has always been administered. 4 •

There is a prevailing opinion, that the merits of every cause 'in a Court of Chancery must be measured by the conscience of the Chancellor, and each cause be decided by the dictates of that conscience, untrammeled by any fixed principles or rules. If this were so, the rebuke of Selden would be as true as it is facetious: For law we have a measure and know what to trust to. Equity is according to the conscience of him that is Chan■cellor; and as that is larger, or narrower, so is equity. ’Tis all one, as if they should make the standard for the measure the Chancellor’s foot. What an uncertain measure would this be 1 One Chancellor has a long foot — another a short foot — a third, an indifferent foot. It is the same thing with the Chancellor’s «conscience.”

But this is not so. The principles upon which equity is administered are as fixed, as well defined, and as certain as those which regulate the proceedings and decisions of the Courts of common law. The remark of Lord Redesdale is eminently true: iC There are certain principios on which courts of equity act, which are well settled. The cases which occur are various, hut they are decided on fixed principles. Courts of equity have, in this respect, no more discretionary power than courts of law. They decide new cases as they arise by the principles on which former cases have been decided, and may thus enlarge the operation of those principles. But the principles are as fixed and certain as the principles on which the Courts of common law proceed.”

We must not he misled by any supposed hardship of the case. The conduct of the son-in-law, in this transaction, may justly excite our indignation. Our sympathies are naturally with the old man* whom he may have deceived and wronged ; and yet we may not violate a single principle, upon which law and equity are administered, to punish the one, or vindicate the other. Mr. Justice Story remarks : Many cases of trust may exist, in which the parties must abide by their own falso confidence in others, without any aid from Courts of justice. Thus in cases of illegal contracts, or those in which one party has placed property in the hands' of another for illegal purposes, as for smuggling (and he might have added for hindering, delaying, or defrauding his creditors), if the latter refuses to account for the proceeds, and fraudulently, or unjustly, withholds them, the former must abide by his loss ; for in pari delicto melior est conditio possidentis et defendentis is a maxim of public policy equally respected in Courts of law and Courts of equity.”-

To my mind it is perfectly clear, that there is nothing in this' case to prohibit the respondent’s setting up the deed of February, 1888 ; and such being the case, it is equally clear, that that deed rebuts the implication of a trust, which otherwise would arise in favor of the respondent, by reas on of the payment of the purchase money for the title made by the Sheriff.

By the payment of that money, he paid for property which he had before, by deed of warranty, conveyed to Campfield. He paid a debt which morally, and by law, he was bound to pay. Can he claim, in a Court of equity, after he has allowed his own grantee to take the conveyance, that the payment of his own debt raises an implied trust in his favor, and' that in equity and good conscience he is entitled to the property 1 Is it the fair implication, that he paid the money to relieve the property of his grantee from the burthen which he himself had placed upon it— from his own debt — or is the implication that the payment was for his own benefit ? It was his own debt that he paid. It was an incumbrance on the property he was bound in equity.to remove. It was honest, that he should do so. The fact that he allowed his grantee to take the deed is an evidence that he made-the payment for his granteeJs benefit. The necessity for implying a trust in this case does not exist. A Court of Chancery never has, and never will, imply a trust unnecessarily. In the case of Cook v. Fountain, 3 Swanston's Rep. 591, the Lord Chief Justice, in speaking of these different kinds of trusts, says : il There is one good, general and infallible rule that goes to both these kinds of trusts ; it is such a general rule as never deceives; a general rule to which there is no exception, and that Is this; the law never implies, the Court never presumes a trust, hut in cases of absolute necessity. The reason of this rule is sacred; for if the Chancery do once take the liberty to construe a trust by implication of law, or to presume a trust, unnecessarily, a way is open to the Lord Chancellor to construe or presume any man in England out of his estate; and so, at last, every case in Court will become casus pro amico.”

Perhaps the language of the Lord Chief Justice is too strong. Eut in the case before us, there is not only no necessity, but no-propriety, in implying a trust in favor of the appellant. And I may add, within the range of authorities no case can be found to sanction such a conclusion. If, under the circumstances of this case, a trust results in favor of the appellant, hereafter, the Chancellor will be untrammelled by any principles to regulate his decisions in reference to resulting trusts, and you may take his conscience, or his foot, for the measure — it is all one.

In every view this case has been presented to my mind I am of opinion the bill should be dismissed.

1st. Because from the bill, and proofs to sustain it, it is evident the complainant concealed the real truth of this case, and although the defendant’s answer, and the ease made by him, only makes the “darkness visible,” this can neither restore the purity of the complainant nor entitle him to any more favorable consideration from the Court.

And 2d. Because the deed of February, 1838, upon every principle which Las ever been recognized by a Court of equity-in the exercise of its jurisdiction in reference to resulting trusts, rebuts every implication of a trust that can arise from the fact of the payment of the purchase money by the appellant as a consideration for the Sheriff’s deed of June, 1838 ; and whether the first mentioned deed is to be considered as a bona fide deed between the parties, or as one concocted for the purpose of defrauding creditors, the pure administration of justice, the policy of the law, and sound morality, require us to regard it as valid between the parties, and to give it, as to them, its proper and legitimate effect.

Chief Justice Green, Justice Ogden, and Judges Arrow-smith, Huyler, Cornelison,. Wills and Risley concurred in, this opinion.

Elmer, J.

When this cause was argued, I felt strongly inclined to the opinion, that the circumstances of the case would entitle us to consider the defendant as holding the property in trust for the plaintiff. Subsequent reflection however has satisfied me that this cannot he done, without disregarding the well settled principles of law and equity.

It is insisted, on behalf of the appellants, that this is a ease o£ resulting trust, it being the well established doctrine in equity, that if a man buys land, in the name of another, and pays the consideration money, the land will generally he held by the grantees in trust for the person who pays the consideration money, (2 Stor. Eq. § 1201, and cases cited.) I do not feel any doubt, upon tbe evidence, that it is true, as tbe bill alleges, that the purchase money was, most of it, in fact, advanced by the plaintiff, with the assistance of those friends who kindly interposed to aid him when he was in distress; although a considerable part of it was raised by means of defendant’s note. The answer admits that nothing was paid by the defendant.

But it appears that long before the purchase' made at the Sheriff’s sale, and before the entry of the judgment, a deed was made by the plaintiff to the defendant for the same property, which recites a money consideration and contains covenants of warranty and seizin. There can be little doubt that this deed was originally designed to protect the property from the judgment or other creditors; but, if such was the design, it was after-wards abandoned, for the title of the defendant was never set up against the judgment, and in fact the deed was not put on record until some time after the judgment. Let the design of that deed however have been what .it may, as between the parties it is a good and valid deed. The maker of'it is estopped from denying that the object was a lawful one, and also from denying that it was made, as it purports to be, for a valuable consideration. He is also estopped from denying that he had a-good title to the premises and from setting up any after acquired title in opposition to it.

This deed is set up in the answer and has been produced in the evidence. It has been attempted to invalidate it by the fact that it appears to have been torn. There is, however, no proof that the tearing was designed to cancel it; and even if it was,, the cancelling of the deed would not divest the grantee of the estate. Although the making of this deed was of course known to the plaintiff, the bill does not impeach it and put in issue its cancellation or alteration, and does not allude to it except in the charging part, where it is stated that defendant sometimes pretends he holds title in pursuance of some other deed or conveyance from the plaintiff or some other person.; and the averment in opposition to this pretence, is a denial that such deed, if any such deed he has was ever lawfully delivered to him, or that he ever paid any consideration for the same. At the most then, the only facts put in issue by this charge are, whether the deed was duly delivered, and whether any consideration was paid. That °it was delivered is proved by the plaintiff’s acknowledgment in due form, and as to the consideration, the plaintiff is estopped from denying it, for the purpose of impeaching the validity of the deed. (1 Greenl. Ev. § 26, N.) The deed then, I think, must be considered a valid subsisting deed.

The case then is, that the defendant was in possession of the plaintiff’s deed for the property and it was deemed advisable that it should be sold upon a judgment, which, although subsequent in date to the deed, it was thought desirable to extinguish. The plaintiff, through the assistance of friends, furnishes the money to pay for it, and the defendant at his request bids it off, and takes the deed in his name. Without further proof, certainly no trust can result. The natural presumption would be that the deed is taken to perfect the title, the defendant acquired, under the deed from the person against whom the judgment was. It was the duty of the plaintiff to pay off that judgment, and to make good the title he had professed to convey. And since he is not permitted to invalidate his own deed by denying that it Was made for the consideration expressed, he cannot be permitted to deny, that he paid the money to perfect the title, he professed to convey.

To permit him to show a trust by the parol evidence he has produced, would he wholly to disregard the statute of frauds, which requires all trusts of land to be proved by some writing signed by the party. The trust which results from the mere fact, that one person pays the purchase money of land conveyed by the seller.to another, is considered as coming within the exception in the statute, of trusts which arise or result by implication or construction of law. But no trust arises upon a man’s own deed, no matter whether there was in fact any consideration paid or not; as between the parties, a voluntary deed is just as binding as any other. There can be no doubt, indeed counsel did not deny, that any parol declarations of the defendant, or any understanding between him and the plaintiff, not reduced to writing, would be inadmissible to show a trust, in regard to the original deed. If a trust in reference to the Sheriff’s deed be allowed, how can it affect the other ? So far as the plaintiff is concerned, the Sheriff’s deed is wholly immaterial and may be laid out of the case. The plaintiff to succeed in obtaining a,conveyance of the property to him, must also get rid of his own deed. So long as that remains in force, his mouth is shut, he cannot claim in opposition to it.

A resulting trust has its origin in the natural presumption, in the absence of all rebutting circumstances, that he who supplies the money, means the purchase.to be for his own benefit, rather than for that of another, and that the conveyance in the name of the latter is a matter of convenience and arrangement between the parties, for other collateral purposes. But in a case like •this, there is no room for any presumption in the matter. The conveyance is made to the defendant, because he holds the man’s •deed who now pays the money. If the plaintiff had taken it in his own name it would have been wholly useless to him ; he could not have alleged that his own deed was fraudulent, or that it was not executed when it purported to be. If his deed had been of later date than the judgment, so that the title under the judgment would have been paramount, the case would have been the same; he could not have set up a paramount title against his own covenants of warranty. Certainly nothing can be plainer than that a man cannot make a deed for property subject to a judgment for his own or any other person’s debt, and then turn round and purchase under that judgment, and thus supersede his own deed. If his own deed was made before the judgment, .although, if voluntary, it may be void as against the judgment, •creditor, as against himself it is binding.

The plaintiff’s reliance, however, is not upon the natural presumption, arising from the mere payment of the purchase money, but upon the evidence in the cause, which it is said proves that the intention of the parties was, that the property should be held for the benefit of the plaintiff and his family. I am not satisfied that the evidence does show any intention to annul the title under the plaintiff’s deed, or that the intention was that the title should be held in trust at all. The object undoubtedly was to prevent the plaintiff and his family from being turned out of •their home, by means of the Sheriff’s sale; hut that could bo effected, as in fact it was, by the defendant’s holding the title, and permitting the plaintiff and his family to remain in possession as long as they thought proper, without paying rent. The circumstances of the casé indeed, so far from raising a presumption that there was a resulting trust, whieh would enable the plaintiff to call for a conveyance of the property to himself, tend rather to show the contrary. They show that for some reason, and probably to prevent the interference of creditors, the design was that the defendant should continue to hold the title, and appear, ostensibly at least, to be the owner. Not one word was said about giving up the plaintiff’s deed. On the contrary, it was put on record just previous to the issue of the execution, and was of course on record when the Sheriff’s sale took place.

But supposing it to he satisfactorily proved, hy the parol evidence produced in the cause, that the intention was to regard the first deed as of no force ; can such evidence be received to prove that the title derived from that deed was abandoned, or was to be held in trust 1 An express declaration of the defendant, at the time that deed was delivered to him, it is clear, could not avail to prevent its operation, according to the terms of it. How then can a subsequent agreement by parol be received for such a purpose 1 A formal title, by a solemn deed, cannot thus be avoided. So long as the statute of frauds remains in force, no deed absolute on its face can be turned into a trust by any declaration of the parties,, not reduced to writing. In the absence of any rebutting facts, the payment of the purchase money is held to have that effect, but never in the face of the parties’ solemn deed to the contrary.

No case like the present has been produced by the counsel, nor am I aware of any. Leman v. Whitney (4 Russell 422) may ?oe referred to as somewhat analagous. A son bad conveyed to Ms father, nominally as a purchaser, for the consideration expressed in the deed of ¿£400,,but really as a trustee, in order that Ms father, who was in better credit than bis son, might raise money upon it by way of mortgage, for the use of the son. The father died before any money was raised, and the Vice Chancellor held the case to be within the statute of frauds, and parol proof inadmissible to prove the trust. Considering the father as a purchaser for the consideration stated in the deed, and it being proved that he never paid the ¿6400, he held that his son as a vendor had a lien on the property for that amount.- In this ease the non-payment of -the consideration money is not proved; and' if it was, the circumstances of the case rebut the presumption of a lien. The deed was either a voluntary deed, or made to de- - fraud creditors, and in either aspect no lien for.the nominal consideration money can be enforced.

Considering the defendant as by virtue of the first deed a purchaser for a valuable consideration, as I think we are bound to do, there can be no resulting trust. By the common law, where a feoffment was made without consideration the use resulted to the feoffor. But even a nominal consideration vested the use in the feoffee. The case of a resulting trust is considered as analagous to the rule of the common law, and therefore wherever the grantee has paid a consideration the trust will not result. In the case of Dyer v. Dyer (2 Cox R. 92) Chief Justice Eyre regrets that in the case of a deed made to a child, the consideration money being paid by the father, such child had not been considered as a purchaser for a valuable consideration, instead of its being a mere circumstance of evidence, admitting of evidence on the other side, for as a-purchaser the trust would be' rebutted, and all circumstances of evidence shut out.

The case of a trust resulting from the fact of one man’s paying the purchase money, when the deed was made to another, is-too well established by a long course of decisions to be overthrown. But the danger of allowing the title to land to rest upon certain presumptions, arising out of parol proof of the payment of the money, has been always admitted; and I am unwilling to extend the doctrine beyond the precedents.

It has been doubted whether a resulting trust can be sustained-where only a part of the consideration money was paid by the party claiming to be the cestui que trust. , But'admitting that it can, as seems to be the better opinion, the land in such a case- • would be charged pro tanto. (Wray v. Steele, 2 Ves. and Ba 388; Bostford v. Burr, 2 John C. R. 410. Considering the defendant as a purchaser for a valuable consideration, and the deed from the Sheriff as a necessary part of his title, the strongest equity that can he raised against him will be, to charge his land with the money that was actually paid by the plaintiff to obtain the title under the judgment.

To this extent, as the case stands, I think the plaintiff, under the general prayer in his bill is entitled to relief j and that the Chancellor erred in dismissing his bill. In his answer the defendant says : “ If the judgment was a valid and subsisting lien on the said premises at the time of said sale, this defendant is willing to pay to the said complainant such sum as he in the opinion of the honorable Court is entitled to in consequence of any payment which may have been made by him in satisfaction oí; such lien.” That the judgment was a valid and subsisting lien appears to he beyond doubt, and I see no reason why the defendant should not he held to an offer so entirely in accordance with what is just and equitable, although without such offer there might be difficulty in requiring him to do even that much.

My opinion therefore is, that the decree ought to he reversecl and the case sent back to the Chancery that an inquiry may be made as to bow much the plaintiff paid,- and that the appellants may have relief to that extent, with interest after the defendant; took charge of the property.

Yalextixe, Judge, concurred in this opinion.

The decree of the Chancellor was affirmed.


text:
    John P. Rich, Appellant, and The Receivers of the New Hope Delaware Bridge Co., Respondents.
    The case in Chancery is reported ante, page 648.

      P. I. Clark and A. Wurts for the Appellant.
    P. D. Vroom for the Respondent.
   The decree of the Chancellor was unanimously affirmed.


text:
    William Potts, trustee, et al, Appellants, and Benjamin Fish and others, Respondents.
    The ease in Chancery is reported ante} page 277.

      Beasley and William L. Dayton for the Appellants.
    C. S. Green and R. S. Field for the Respondents.
   The decree of the Chancellor was unanimously affirmed.


author: Emery, V. 0.

text:
    Edwin Bobert Walker, Chancellor.
    John B. Emery, Erederic W. Stevens, Eugene Stevenson, Lindley M. Garrison, Edmund B. Beaming, James E. Howell and Vivian M. Lewis, Vioe-Chanoellors.
    In the matter of the application of The Essex County Park Commission for leave to pay into court condemnation money awarded to Philip J. Bowers.
    [Decided April 18th, 1912.]
    1. P. L. 1908 p.'892 § 1. provides that all assessments for improvements upon lands in towns incorporated under the act shall be payable in ten annual installments; the first at or before the expiration of one month from confirmation of the assessment, and thereafter at the expiration of each year from such confirmation, one installment shall be payable with interest from the date of confirmation, provided that the owner may pay the whole or any balance of the installments at one time.—Held, that the assessments became liens at the time of confirmation of the assessments rather than at the date fixed for payment thereof.
    2. Eminent Domain act (P. L. 1900 p. 80 § 8) entitles owners and persons interested in lands to be condemned to notice of the proceedings, and requires a notice of Us pendens to be recorded in the clerk’s office, in default whereof persons acquiring an interest in the property pending the proceedings will not be bound thereby. Section 6 requires the assessment of the amount- to be paid by the condemning party to be made “as of'the date of filing the petition and order thereon.” Section 7 provides that, upon filing of the commissioners’ report “and upon payment or tender of the amount awarded, the petitioner may enter and take possession of the land.” Section 14 provides that, if possession be not taken before the finding by the jury, petitioner, upon payment as aforesaid or payment into court of the amount found due, may take possession. The constitution provides that private property shall not be taken for public use without just compensation. Daws, April 2d, 1906 (P. L. 1906 p. 99), amending the Eminent Domain act, permits the proceedings to be abandoned within twenty days after filing the award or within twenty days after rendition of verdict.—Held, that until payment or tender of compensation, the title to the condemned land, as between the owner and others than petitioner-, remains in the owner, the land not being taken as of the date of the filing of the petition in the condemnation proceedings, and hence may be the subject of voluntary or involuntary liens against it.
    3. P. L. 1908 p. 52J¡. § Jfl provides for a report by the board of assessments as to assessments for benefits for public improvements by a city, showing the land benefited, amount assessed, and for confirmation of the report by the city council after hearing, and that after such confirmation the report and map, with a copy of the resolution confirming it, shall be delivered to the collector of taxes, “and the assessments so levied upon the lands specially benefited shall thereupon be due and payable and shall become liens upon the lands assessed as hereinafter provided.” The section further directs that the assessment shall be payable in ten equal installments, the first of which shall be payable thirty days after the confirmation of the assessment, and the others in one to nine years, respectively, after confirmation, and that each installment of such assessment shall be a first lien upon the land assessed from the date that the installment is due and payable as herein provided, and shall remain a lien until paid, notwithstanding any alienation thereof.—Held, that the statutes gave the city a right to a lien upon the lands assessed for the whole assessment from the time of the delivery of the report to the collector of taxes, the lien to arise in the future for each of the ten assessments at fixed intervals, and, since the right to future liens arising pending proceedings to condemn the land was cut off by payment of the money to the owner-, it would be transferred to the money received by him.
    On application, of P. J. Bowers for payment. Heard on petition and answers, affidavits and stipulations.

      Mr. Ralph E. Lum, Messrs. Lum, Tainblyn & Qolyer, solicitors, for the petitioner.

      Mr. Gharles F. Kocher, for the town of Bloomfield.

      Mr. Borden S._ Whiting, for the city of East Orange.
   Emery, V. 0.

The Essex Park Commission by a petition filed on December 5th, 1910, under the Eminent Domain act of 1900, find its supplements, took by condemnation lands of Philip J. Bowers in Essex county located partly in the town of Bloomfield and partly in the city of East Orange.

The lands taken bounded on a street called Cleveland Terrace, and previous to the filing of the park commission’s petition for condemnation, the town of Bloomfield had, on Bowers’ application, opened this street through his lands within its limits, and had also on like application, constructed a sewer therein, and laid down telford pavement and constructed curbing and gutters thereon. 'The city of East Orange had also previous to the filing of the petition for condemnation, improved the street by grading, paving, guttering and curbing within its limits. Subsequent to the filing of the petition, assessments for benefits were made against the lands of Bowers, the assessment of $2,431.75 for the improvement in Bast Orange being confirmed' by the city council on February 14th, 1911, and the several assessments for the Bloomfield improvements at later dates, viz., May 15th, 1911, for street opening, $55.87; sewer, $207.36; curbing and guttering, $318.72; altogether, $581.95; and on June 7th, 1911, for telford pavement, $607.49. On May 4th, 1911, after the confirmation of the East Orange assessment, but before the confirmation of any of the Bloomfield assessments, the award of the commissioners in the condemnation proceedings was filed awarding to Bowers $23,264 for his land taken and damages. Bowers appealed from the award and was awarded by a jury on October 23d, 1911, the sum.of $28,000 for land taken and damages. The park commission made no payment or tender of the money to Bowers, but on November 14th, more than twenty days after the verdict of the jury, applied to this court for leave to pay the amount of the award into court, and after notice to Bowers and the municipalities an order was made directing payment into court of the sum of $6,000, sufficient to meet the alleged liens, and the balance to be paid to Bowers. Bowers now applies for the payment to himself of the entire amount paid into court, claiming that the assessments are not liens upon or chargeable against the fund.

Independent of the effect of the condemnation proceedings the Bloomfield assessments became statutory liens on the property assessed on their confirmation by the town council. The statute relating to assessments in towns (P. L. 1903 p. 392 § 1), which makes them liens, is to be construed as fixing the time of confirmation rather than the date fixed for payment of the assessment, as the date when they became liens.

Eor present purposes, the rights of Bloomfield if accruing on the latter dates are as effective as if they accrued on May 15th, 1911, the date of confirmation, inasmuch as both dates are subsequent to the award. The extent to which the statute relating to cities (P. L. 1908 pp. 523, 525 § 41) gives the city of East Orange a lien for assessments and the time when the lien arises is not so clear, and this question -will be separately considered. Eor the present, I assume that the assessment (or at least the first one-tenth installment thereof) became due and was a lien before the filing of the award of the commissioners, May 4th, 1911.

The question in the case, on the above facts and assumptions, relates to the right under the Eminent Domain act, of-persons acquiring liens on the lands condemned or interests therein pending the condemnation proceedings, to claim payment of the liens out of the purchase-money. By the Eminent Domain act (P.'L. 1900 ¶. 80 § 3) owners, occupants and persons interested in the lands are entitled to notice of the proceedings for condemnation, and a notice of Us pendens naming the parties interested and describing the land is to be recorded in the clerk’s office of the county,'“in default whereof, persons acquiring an interest in the property pending the proceedings shall not be bound thereby.” Such notice was filed in this case, and, the municipalities not having yet acquired a statutory lien on the lands, or interest therein, at the time of filing the petition, were not named as parties to the proceedings.

It is claimed on behalf of Bowers, that' under the Eminent Domain act, his lands were “taken” as of the date of filing the petition, that his title to the lands was, upon the completion of the condemnation proceedings, divested as of that date, and that his right to the money, although it was not paid until the completion of the proceedings, took effect as of date of the petition, and therefore his lands never became subject to the liens, and he is entitled to the compensation paid for them' without payment of the assessments. The claim is based on the provision in the sixth section of the Eminent Domain act, which requires the assessment of the amount to be paid by the condemning party for land and damages, to be made “as of the date of filing the petition and order thereon.” It is contended that this provision has also the effect as between the owner and those claiming under him, after the filing of the petition, of effecting the transfer of title to the land as made at the same time. But the subsequent provisions of the act indicate that the land is not to be considered as “taken” from the owner so as to deprive him of the ordinary rights and obligations of an owner of the property, until payment or tender of the award or verdict for damages. Section 7 provides that upon the filing of the commissioners’ report and upon payment or tender’ of the amount awarded, the petitioner may enter and take possession of the' land, and section 14 provides that

“if possession shall not have been taken before the finding by the jury, then the petitioner, upon payment as aforesaid, or payment into the court of chancery of the amount found due by the jury, may enter upon and take possession ofi the lands.”

These statutory conditions requiring payment as the condi.tion precedent to “taking” assure the benefit of the constitu-. tional provision that “private property shall not be taken for ' public use without just compensation.” It may happen in some instances that the rule of evidence prescribed b3r the statute as to the time of the valuation ma}r not give the owner Ms full constitutional rights and may perhaps not be the proper method of assessing his damages. Previous to this special statutory rule fixing damages as of the date- of the petition, the value of the premises taken was assessed in the law courts as of the date of the award of commissioners. Trimmer v. Railroad Company, 55 N. J. Law (26 Vr.) 46, and in equity courts as of the date of the entry (Doremos v. Paterson (Vice-Chancellor Stevens, 1907), 73 N. J. Eq. (3 Buch.) 474, 501). But this ’ consideration as to the rule of evidence relating to damages and values is aside from the present inquiry,’which relates only to the time when as between the owner and persons other than the petitioner, claiming under the owner pendente» lite, either voluntarily or involuntarily, his right and title to' the lands as lands has terminated.

By requiring notice of tire petition to be given to all parties interested and the Us pendens to be filed and the further provision that on failure to file lis pendens, persons acquiring an interest in the property pending the proceedings shall not be bound thereby, this proceeding is assimilated to the ordinary formal suit relating to lands, and pending the proceedings, the rights of the owner in the lands continue, subject to his voluntary disposition by deed or mortgage, disposition by law on his death, testate or intestate, and also to involuntary proceedings such as judgments, attachments and the like. Taxes and assessments for municipal proceedings becoming liens on the land pending the proceedings, stand in the same situation. In re Sleeper (Vice-Chancellor Pilney, 1901), 62 N. J. Eq. (17 Dick.) 67. It appears by the record in this case that taxes assessed after the petition were directed to be paid as well as those assessed previously.

The condemnation proceedings, so far as relates to divesting title between the owner and persons other than the condemning party, are pending until the actual payment or tender of the compensation, and, as between them, his rights as owner of the lands continue up to the time when he becomes the owner of the money paid for them. This construction, or rather this application, of the effect of the act establishing judicial proceedings for condemnation, with formal parties and lis pendens notices, gives the same effect as between the owner and others than the petitioner, as- is given in pending suits of other kinds, and. leaves the owner still clothed with full property rights, subject only to the rights of the petitioner or suitor. And a further special reason exists for not depriving the owner pending the proceedings of such property right in the lands or -freeing him from obligations to others. This reason is that under the Eminent Domain act the condemning party is not bound when the award is made to continue the proceedings and take the land, but under a supplement of April 2d, 1906 {P. L. 1906 p. 99), may abandon the proceedings at any time within twenty days after the filing of the award, or if the issue shall be tried by a jury, within twenty days after rendering of the verdict, upon pa3'ment of the costs and expenses. If on the filing of the petition the owner’s title to the lands is divested by the statute, as is now claimed by the owner, then he can no longer convey, mortgage or devise the lands pending the proceedings, and upon any abandonment, the title must be revested in him. In the interim the title, as all title must vest somewhere, must be considered as in the condemning party,- without payment. It would be an anomalous condition of title if, pending the proceedings, the owner could not convey, mortgage or devise the lands, and if, pending the proceedings, no judgment recovered against him bound his interest in the lands. The more logical as well as practical construction of the effect of the act upon the owner’s title to the lands is, that pending the proceedings, and up to the'time of payment or tender, his title to the lands continues as between himself and others than the petitioner and is subject to liens, voluntary or involuntary, against hint. The title being in the present instance divested by payment into court, the liens attach to the money in court. The Bloomfield assessments being under the statute liens on the land before payment of the money should be paid out of the fund.

Second, the East Orange assessment.

The “Act concerning cities” (P. L. 1908 ch. &50 pp. 486, &c.), under which the East Orange assessments were made, provides, section 41 (at p. 524), for a report by the board of assessments of the assessment for benefits, showing the lands benefited and the amount assessed as benefits, a confirmation of the report by the city council after a hearing thereon, and then provides that after such confirmation ■ the report and map, with a copy of the resolution confirming the same, certified hy the city clerk, shall be •delivered to the collector of taxes, “and the assessments so levied upon the lands specially benefited shall thereupon be due and payable and shall become liens upon the lands assessed as hereinafter provided.” These were delivered to the collector on February loth, 1011, as appears by the amended answer of the city and stipulation of the parties. The subsequent provision thus referred to is the same section (p. 525), and directs that such assessment shall he payable in ten equal installments, the first of which shall be clue and payable at or before the expiration of thirty clays, after the confirmation of the assessments, and the others, respectively, in one, two, three, four, five, six, seven, eight and nine years after the date of such confirmation, with further provisions relating to interest on the installments paid or unpaid. Then follows the provision as to the lien of the assessments:

“Each installment of such assessment with the interest shall he a first lien upon the land assessed from and after the date when such installment of the assessment is due and paj’able as herein provided, and shall remain a first lien thereon until paid, notwithstanding any devise, descent, alienation, mortgage or other incumbrance thereof, and shall be enforced and collected by sale of the land, as in case of taxes,” &c.

Beading together these two clauses of this fortjr-first section relating to assessments, their effect is to give to the city5 from the time of the delivery of the report, &c., to the collector, and there-, upon, that is, at once, a right to a lien upon the lands assessed for the whole assessment, the lien to arise in the future for each one-tenth of the assessment and interest, at fixed intervals. These future liens, moreover, are to be first liens from and after the elates fixed for the payments of the several installments unaffected by an3r devise, alienation, &e. This includes, I think, devises, alienations, &c., after the delivery to the collector and previous to the time fixed for the lien to arise as well as subsequent to this lime. From the time of delivery to the collector, this right of the city to future liens on the lands is a right to an interest in the lands. This right in its inception may not be an existing lien on the lands, in the technical sense of the word “lien,” or within the meaning of a covenant against “liens” between grantor and grantee, but it is from its inception a right or interest in the lands in the nature of an encumbrance thereon. It is at once a subsisting right or encumbrance just as an inchoate estate in dower is held to be an encumbrance before the dower interest becomes consummated. Carter v. Denman (Supreme Court, 1852), 23 N. J. Law (3 Zab.) 260, 273. This construction of the clauses of the section relating to the assessments gives full effect to all the provisions of both clauses and by a natural meaning and construction of the words used, and seems to be the only construction giving any effect to the part of the first clause, which, after directing the delivery of the report to the collector, provides that the assessment so levied shall “thereupon * * * become liens upon .the lands assessed as hereinafter provided.”

On this ground it seems to me to be the construction which should be adopted, although it creates a right or interest relating to liens for assessments which differs from the usual statutory provisions. It is within the power of the legislature to create such right, and the only question is whether the statute does this. I conclude that it does.

This right to future liens on the land existing in 'the city from the time of the delivery of the report to the collector, arose pending the condemnation proceedings, and was therefore sribject thereto and was cut off and destrojred when the condemnation was perfected by the payment of the money. And the right or interest of the city in the lands being thus cut off, its rights in the land existing at the time the title was divested, are transferred to the compensation money which is paid for the fee-simple estate, including all interests, and the city is entitled to be paid therefrom.


author: Emery, V. C.

text:
    Frank E. Blanchard v. Eastern Pennsylvania Power Company.
    [Decided May 15th, 1912.]
    1. A preliminary injunction will not be granted, where the plaintiff's right, which the injunction is to protect, is doubtful.
    2. At common law, and in the absence of lawful statutory restrictions, an owner may restrain the stringing of wires over lands within the highway, of which he owns the fee, though poles to sustain the wires are erected onty on lands of adjoining owners; and a statute should not be construed as taking away this right, unless it does so clearly, rather than by liberal construction or implication.
    On application for preliminary injunction. Heard on bill and affidavits, answer and answering affidavits.

      Mr. Benjamin W. Ellicott, for the complainant.

      Mr. Elmer King, Messrs. Treeland, King, Wilson & Linda-bury, solicitors, for the defendant.
   Emery, V. C.

Complainant in this case seeks a preliminary injunction to restrain an electric light company from suspending its wires over his lands located within the lines of a public highway. The poles from which the wires are thus suspended are not located on complainant’s lands hut on lands of adjoining owners, and by their consent. The township committee of Randolph township in which the lands are located, have, according to defendant’s affidavits, passed a resolution giving the lighting company the right to erect poles and string electric wires therefrom on the public highway in question, but this permission is given for the purpose of aiding defendant in carrying out a contract for public electric lighting with the borough of Mendham. To reach Mendham from defendant’s power plant at Dover, the line must pass through Randolph township, but the permission of Randolph township not being for the purpose of public lighting within its limits, cannot avail the defendant as authority to stretch its wires over complainant’s lands within the highway. Complainant’s claim to a preliminary injunction is based on his constitutional right to prevent the taking of his lands against his consent without compensation. If, under our decisions, it is clearly settled that the suspension of wires over the owners’ lands located in a highway is such “taking” of his property, then it is a right which should be protected by preliminary injunction. But if, under our decisions, the right is not clear-, but has been fairly questioned, then a preliminary injunction cannot be granted. Halsey v. Rapid Transit, &c., Co. (Vice-Chancellor Van Fleet, 1890), 47 N. J. Eq. (2 Dick.) 380. By the act of April 21st, 1896 (P. L. 1896 p. 822), full power was granted to electric light companies (so far as township highways are concerned)

“to use the public highways for the purpose of erecting posts or poles on the same to sustain the necessary wires and fixtures, upon first obtaining the consent in writing of the owners of the soil.”

My first impression as to the construction of this statute is that it requires the consent of the owners of the soil over which the wires are suspended as well as of the owners of the soil in which the poles are located. At common law and in the absence of lawful statutory restriction, the right of the owner to prevent the stringing of wires over his highway lands is settled, and a statute should not be construed as talcing away this common law right unless it does so clearly rather than by liberal construction or implication. And if the words “owners of the soil” whose consent is to be obtained, are not clearly to be construed as limited to the owners of the soil on which the poles are located, then the protection of consent would seem to be given to the owners over whose soil the wires are suspended. This form of the statute, as will be observed, is not such as to confer the express authority merely to erect poles in the highways with the consent of the owners of the soil. The poles authorized to be erected are to sustain wires. I think it must be assumed for present purposes that the legislature has the right to grant to a lighting company the use of lands in a highway for the erection of poles and the suspension of wires for the purpose of public lighting without the consent of the owners of the soil on or over which either poles or wires are located, and that it may authorize this without compensation as for additional use or servitude, and also that the consent of only one or both classes of owners may be required, according to the legislative discretion. Whether both classes of consents are required is a question purely of statutory construction of the legislative grant. In the construction of analogous statutes, it has been held that the consent of the owner of the lands over which the wires were suspended was not required, but only that of the owners of the soil on which the poles were erected. Roake v. American Telephone Co. (Chancellor Runyon, 1886), 41 N. J. Eq. (14 Stew.) 35, so construed the Telegraph Company law of 1880 (P. L. 1896 p. 322), in reference to telegraph wires, and in a case involving the construction of the statute now. in question (P. L. 1896 p. 322), Vice-Chancellor Pitney, in East Orange v. Suburban Electric Light and Power Co., in an opinion reported in 59 N. J. Eq. (14 Dick.) 563, 567 (1899), held that it did not require the consent of the owner of the soil- over which only wires were strung.

The opinion of the court of errors and appeals affirming the decree for injunction, did not, it is true, reaffirm this construction, resting its decision upon another ground not involving the point. This may prevent the opinion of Vice-Chancellor Pitney from being treated as finally settling the construction of the statute in this court, and leave its construction an open question at final hearing, but due weight must be given to the learned vice-chancellor’s considerate judgment.

In view of these decisions I conclude that although mjr first impression of this statute is that the consent of the owners of the soil over which the wires are suspended must also be ob- • tained, yet this right is not so clear as to entitle complainant to a preliminary injunction, and must be determined either at final hearing, or, if the complainant is so advised, by an action of ejectment, in which, as some courts hold, the wires may be removed by virtue of a writ of possession. Butler v. Frontier Telephone Co., 186 N. Y. 486; 11 L. R. A. (N. S.) 920.

The application for preliminary injunction is denied, costs to abide the event of the suit.


text:
    Frederick L. Randall v. George R. Gray et al.
    [Decided May 15th, 1912.]
    1. That the beneficiaries of an estate have instituted litigation against him. and have made unfair and unjust charges, does not entitle an administrator to commissions, where he lias acted for several years under an agreement that commissions should not be allowed; the agreement being revocable only upon notice.
    2. Even if two beneficiaries of an estate agreed to aid the administrator in managing the estate in consideration of his promise to charge no commissions, and failed to render assistance, the administrator cannot recover commissions without showing that he asked for the assistance and was refused, and that notice thereof was given to the parties interested.
    On bill for account. In re matter of commission.

      Mr. Glarence SacTcett, for the complainant.

      Mr. Aloysius MacMahon, for the defendant Hopping.
   Emery, V. C.

On further consideration of the evidence bearing upon the matter of the allowance of commissions to Mr. Hopping as substituted administrator of Mr. Gray, I reach the conclusion that commissions should not be allowed. The evidence -establishes that Mr. Hopping was appointed in Mr. Gray’s place as the re- suit of a conference of the members of the testator’s family interested, at which it was understood that by this appointment the estate would be relieved from the expense of commissions. The appointment of Mr. Hopping was consented to and accepted on this understanding, and the accountant is bound by it until revoked upon notice. Such notice was not given, nor such revocation attempted until after the commencement of proceedings for accounting, and the right to charge commissions is now placed by Mr. Hopping himself mainly upon the ground that the complainants have instituted the litigation and have made unfair and unjust charges against him. Such action might justify refusal to act longer without compensation,, but would not give the right to ignore the understanding which had been acted on for years in the management of the estate.

At the time of the appointment it seems to have been expected and perhaps agreed that Mr. Yearance, a son-in-law, and Frederick Randall, a son of the testator, would aid the administrator in the management of the estate.

The present claim of the administrator, that the aid and assistance to be given by these persons were in the nature of conditions made on the appointment, and that'by reason of their failure to assist him, he has the right to charge commissions, is not satisfactorily shown on the evidence. And if this were proved, such conditions could not be made effective to give the right to the commissions unless the administrator makes further proof—■ first, that the administrator, who had as against them the legal right to the management, asked for their assistance and was refused, and second, that the parties interested, and who had acquiesced in the appointment, relying on the understanding that no commissions were to be charged, were notified that the conditions were not complied with and that the administrator would thereafter ask for commissions. Mr. Yearance lived for six years after the appointment and gave some aid in the management, as did also Frederick Randall. In the absence of any intimation that the original understanding as to commissions was no longer considered binding, the parties interested in the estate were entitled to hold the administrator to its observance.

Commissions, therefore, cannot be allowed, but the administrator cannot be obliged against his will to continue to act without •compensation, and may apply for his discharge on settlement of his account.