author: Walker, Y. C.

text:
    Mary L. Mason v. James Ross.
    [Decided October 27th, 1908.]
    1. Dedication of a public highway may be made by the creation of an easement of way in a deed of conveyance describing the way as a street, and the dedication may be made in presentí to be accepted and used in futuro. Until accepted by the public authorities, either formally or by being worked and repaired, it remains a private easement.
    2. Non-user of a public highway for more than twenty years will not operate to extinguish the public right of easement.
    3. Non-user of a private way for more than twenty years will operate to extinguish an easement, if coupled with an adverse enjoyment.
    4. A right of way, either public or private, may be lost by abandonment, and it is not so much the duration of the cesser to use-but the nature of the acts done, which are material in determining whether or not the easement has been extinguished by an equitable estoppel arising out of matter in pais. The time of non-user may be immaterial.
    On final hearing on bill, answer, replication and proofs.

      Mr. John íl. Baches, for the complainant.

      Mr. William J. Walsh and Mr. Barton B. Hutchinson, for the defendant.

      The accompanying diagram contains a sufficient number of the lines on the page of the city atlas of Trenton, which was offered in evidence, to illustrate the references to boundary lines and dimensions set forth in the opinion.

   Walker, Y. C.

The defendant commenced the erection of a dwelling-house upon a lot of land twenty-five feet in width and two hundred and four feet in depth, fronting on the easterly side of Southard street, in the city of Trenton, and the progress of the work was arrested by an injunction of this court.

The complainant claims that she has' an easement over the lands on which the building stands, either as a way appurtenant to other lands of hers binding upon the premises in question, or as one of the public by reason of a dedication of the way as a public way or street.

It is conceded that Benjamin Albertson owned the locus in quo including the lands of the complainant and other adjacent land in 1868, and in October, 1870, conveyed to John Taylor part of those lands, beginning on the easterly side of Southard street and running by the northwesterly line of a proposed street twenty-five feet in width two hundred and four feet deep. This course is the southerly line of part of the complainant’s land, which land came to her mediately from Benjamin Albertson through sundry mesne conveyances. At a later period, the time not being fixed, a row of houses was erected on the southerly side of this street, called and known as “murderers’ row.” Conveyances were made of houses in this row as being a certain distance easterly from Southard street and on the southerly side of Carroll street, namely, the street in question. In the year 1895, Albertson, having disposed of all of the rest of the tract, conveyed his estate in that part of it sometimes called Carroll street and sometimes East Carroll street, being the lot twenty-five by two hundred and four feet, on which the defendant has commenced the erection of his building, to the Mechanics Mutual Loan Association, describing the same by metes and bounds, but not calling it a street!1 In December, 1895, the loan association conveyed to the defendant and John G. Hess its lands at the site in question and the defendant claims title by virtue of the conveyance from the loan association to himself and Hess, and says that by virtue thereof they entered into the full and absolute possession of the tract and held the same; and subsequently in the same year erected on the lands about one hundred feet easterly from Southard street a garbage crematory, covering about sixteen feet of the width of the land called a street, and used and operated the same for a number of years without any objection or complaint on the part of the abutting owners, one of whom was a predecessor in title of the complainant; that the defendant and Hess filled up the lot with earth and used it in connection with the crematory. It was necessary for them to fill the lot with earth to get access to it because of the abutment wall of the Southard street bridge, which will be referred to subsequently. Hereafter the defendant will be referred to alone as the owner of the servient tenement.

The complainant, as already said, was not an abutting owner at that time. Her title was derived by devise from her husband, whose will was proved August 19th, 1898. His title was derived by conveyance dated December 10th, 1897.

In 1889 the county of Mercer built an elevated bridge across the railroad and canal on Southard street north of the locus in quo, and raised the grade of Southard street by way of approach to the bridge to a height of about seventeen feet across the tract or street in question, thus shutting off access to Southard street from East Carroll street, so called. Some time since, the houses known as “murderers’ row” were demolished, whereupon all apparent traces of the street became obliterated. During the time the “row” was in existence there appear to have been a few trees set out, and some sort of path by way of sidewalk seems to have existed from the “row” to Southard street. There apparently never was any clearly defined street at the point in question, the houses being built on what had the appearance of a small common.

The intention of Albertson was undoubtedly to lay out and dedicate a street to be called East Carroll street leading from Southard street easterly. Not only did he and his successors in titie make conveyances with reference to the locus in quo as a street, but the title to part at least of the land on the Albertson tract which has come to the defendant makes express mention of the street and put him upon notice as to its locality, if, in fact, he did not know of its lines. Upon this score there is no difficulty.

It is conceded that the municipal authorities of Trenton, within whose corporate limits are the premises in question, never accepted the proposed street, or repaired or worked it, assuming the public to have gained an easement therein by dedication or user.

Counsel for complainant relies largely upon Booraem v. North Hudson County Railroad Co., 40 N. J. Eq. (13 Stew.) 557, in which the court of errors and appeals said:

“When the language of a deed is sufficient to create an easement of a right of way over the premises conveyed as an appurtenant to the grantor’s premises lying adjacent thereto, and words are added indicatiirg a purpose to dedicate the way as a public street—Held, that the creation of a public right to be enjoyed in futuro whenever the public authorities might see fit to accept the dedication, was not inconsistent with the private easement which enured to the grantor immediately from the grant, and that the latter was entitled to the use of the way, although the public had not accepted the dedication.”

No map or plat of the tract showing the street in question was ever filed, and the defendant lays great stress upon that fact, and claims that there is no evidence of a dedication. But I do not understand that a map or plat is necessary, for, as was said by Vice-Chancellor Reed, in Seibert v. Graff, 38 Atl. Rep. 970: “Although there may be no reference to a map, yet the fact that land is described in a deed as bounding upon a street, and there are marked, upon the grounds adjacent to the land sold, traces of the existence of a street, this condition of affairs will produce the same result.”

The complainant succeeds and the defendant fails on the question of dedication. The dedication wras made by Albertson in presentí, to bo accepted and used in futuro. See Mayor of Jersey City v. Morris Canal Co., 12 N. J. Eq. (1 Beas.) 547, 563.

Nevertheless, in my opinion, the decision of this case does not depend upon the question of dedication or no dedication, but upon the question of equitable estoppel. In other words, has there been such an abandonment and cesser of the use of this strip of land called a street as to disentitle the complainant to the relief she seek's, namely, an injunction restraining the defendant from in any manner interfering with her use of the street, and compelling the defendant to remove so much of the building as he has erected upon its site?

That there can be an abandonment of both public and private ways is supported by abundant authority.

On the hearing an offer was made on behalf of the defendant to show that the Mechanics Mutual Loan Association, while the owner of “murderers’ row,” sued the county of Mercer for closing up the street or-way in question, and that Peter Dehe, while the owner of the tract now owned by the complainant, made a deed of release to the county for the damages which he had sustained by the building of the approach to the Southard street bridge which shuts off access from the alleged street to Southard street. Undoubtedly, it was these proceedings and the obstruction of the street or way which led Albertson in 1895 to make a conveyance of the street to the loan association. He and the association certainly believed that all rights in the way were extinguished, and the association unquestionably conveyed to Hess and Ross, upon the understanding of all parties, that the easement, public or private, had been extinguished. The offer of the' testimony adverted to was excluded, and I think properly so as to the suit for damages, but not so as to the release from Dehe, as will hereafter appear. Surely, if the grade of Southard street had not been raised and an embankment thereby erected across the entrance to East Carroll street, so called, the complainant’s rights would not have been lost by the conveyance of the fee of the street by Albertson to the loan association, and by it to Hess and Ross, and by their obstruction of it with their crematory and the defendant’s present obstruction with his building. If the way were a public one its being obstructed for over twenty years would not extinguish the public right. If a private one, the right has not been lost by non-user, because twenty years of non-use has not continued, coupled with an adverse enjoyment.

The easement of way, whether public or private, over the locus in quo, has been lost to the complainant, if lost at all, by reason of the changed conditions of and concerning the whole tract originally owned by Albertson and of which her lands are a part, and by reason of the operations of the defendant upon the tract in question without protest from the complainant and her predecessors in title, whereby an equitable estoppel precluding the complainant from asserting the right to use the locus in quo as a way or street has arisen.

True it is that when only the foundations of the house, now partly erected upon the tract, were built, the defendant was warned to desist, and in the face of warning, he proceeded with his building operation until stopped by the injunction of this court, but, after all, access over the locus in quo to Southard street had been cut off between 1889 and 1905, a period of six years, by the presence of the abutment wall built across it on Southard street by way of approach to the Southard street bridge, which wall showed a perpendicular face of some seventeen feet, and the defendant, after acquiring the land, built a garbage cremator}'- on part of this way, and by filling in with earth made a way from the crematory out onto Southard street. He was not obliged to make this embankment for the benefit of abutting owners. He made it for the benefit of himself. He was not required to maintain it for the benefit of abutting owners, and he removed it, or at least that part of it where the cellar walls of the building whose erection he has commenced are placed.

The annexed diagram shows the exact situation of the locus in quo with reference to the whole premises originally owned by Albertson, more than one-half of which he conveyed to Dehe and which property (Dehe’s) is now in the possession of the complainant. The strip of land which was the street or way in question is a trifle larger than two ordinary city building lots. It is twenty-five feet in width by two hundred and four feet deep. It is a cul-de-sac, but that would not prevent its becoming a highway. State v. Bishop, 39 N. J. Law (10 Vr.) 226, 228.

The city of Trenton never accepted the dedication of this so-called street, or worked or repaired it, which is not to be wondered at, and, since the county of Mercer has raised the grade of Southard street, through which street it laid and built the abutment wall across this way to the height of some seventeen feet to the bridge beyond, it is safe to say that the city of Trenton never will have anything to do with the locus in quo as a street or public way. To do so would be absurd. Since the demolition of “murderers’ row” there is no occasion for the use of this street as -a way appurtenant to the lands whereon the tenements which composed that row were erected. This property, where stood the row, as I understand it, is now in the defendant. However that may be, so far forth as the complainant is concerned, the situation is as though all the land on the tract formerly of Albertson, excluding the tract owned by the complainant and excluding the street, is in the defendant, for the complainant does not claim a. right to use the way for access to any premises save her own. Now, as a matter of fact, her premises are one hundred feet front on Southard street, binding northerly on the way in question and running round the same to the rear, forming an L, the rear portion being seventy-one feet wide and extending down to and having a frontage of that width on Ray-wood alley, an alley ten feet wide, which runs out into Southard street one hundred feet southerly from the southerly line of the way in question. The complainant not only has access to Southard street through this alley, but also has access to Southard street under the bridge north, of the loc-us in quo and north of the terminus of the abutment wall.

The defendant denies that the complainant has any easement in tire premises and claims title in himself, which title does not depend upon prescription, but upon his deeds and the fact of an abandonment of the easement, public or private, whereby the rights of way over tire street in question were extinguished.

In Baldwin v. Trimble, 85 Md. 396 (at p. 402), the court said:

“Whilst an encroachment on a highway is conclusively settled in Maryland to be a public nuisance which can never grow by prescription into a private right * * * yet it may be true and in perfect harmony and accord with that doctrine that cases, concerning public streets, can arise of such a character and founded upon an actual and notorious abandonment of the highway by the public that justice requires an equitable estoppel shall be asserted even against the public in favor of individuals. In .that event, such cases, as observed by Judge Dillon, 'will form a law unto themselves,’ and will ‘not fall within the legal operation of limitation enactments * * * there is no danger/ he continues, ‘in recognizing the principle o'f an estoppel in pais as applicalbe to such cases, as this leaves the court to- decide the question, not by the mere lapse of time, but by all the circumstances of the case, to hold the public estoppel or not as right and justice may require/ ”

In this case (Baldwin v. Trimble) the court went on to review the facts wh-icli in its opinion created an equitable estoppel against the public. There was no evidence that the road was ever laid out by the municipal authorities or that it was ever accepted by them or kept in repair at public expense, but, if ever claimed by the public at all, it was finally abandoned, not because encroached on by abutting proprietors (which in fact was the case), but because no longer needed by the public. Being no longer' needed and no longer used it was actually closed to travel, and permanent structures were built across its entire width for a distance of seven squares of its length. There seemed to have been no objection to the erection of buildings across the road, and the court remarked that it would be inequitable in tire extreme to permit the public to reassert a claim ,to the bed of the road, after having actually abandoned it altogether, and to subject every individual who had innocently and in good faith expended money in the construction of buildings upon it, to an indictment for maintaining a public nuisance and to the penalty of removing the buildings themselves, when there was no longer the slightest need for the road. The court further remarked (at p. 404):

“If ever there was a case where the doctrine of equitable estoppel ought to prevail against the public it certainly is the case at bar, and we accordingly hold—not that the appellant has acquired by prescription a right to that part of Lanvale road between his two lots—but having title thereto under his deeds subject to an easement in the public and the easement having been abandoned so that the public are equitably estopped to reclaim it, his title to the parcels of the road claimed by him is merchantable.”

In the case just referred to (Baldwin v. Trimble), the abandonment of the road had existed for a period of twenty-five years, but I do not understand that the abandonment must he for such a period as would under the statute of limitations operate to defeat a private right of way; on the contrary, the rule is just the opposite, and every case in which an-equitable estoppel is claimed depends upon its own particular facts.

In Pope v. Devereux, 5 Gray 409, the supreme judicial court of Massachusetts said (at p. 412)

“It is not the duration of the cesser lo use the easement, but the nature of the act done by the owner of the easement, or the adverse act acquiesced in by him, and the intention which the one or the other indicates that is material. The Queen v. Chorley, 12 Ad. & E. (N. S.) 515. And a cesser of use for a less period than twenty years, accompanied by acts clearly indicating the intention to abandon the right, is sufficient.”

Of course, a private way may be extinguished by an adverse possession for the full period of twenty years. Such, a possession will defeat the title to an easement by analogy to the statute of limitations. Street v. Griffiths, 50 N. J. Law (21 Vr.) 656, 658.

Non-user accompanied by acts on the part of either the owner of the dominant or the servient tenement which manifest an intention to abandon and which destroy the object for which the way was created or the means of its enjoyment will effect an abandonment. 23 Am. & Eng. Encycl. L. (2d ed.) 42.

In Queen v. Chorley, 12 Ad. & E. (N. S.) 1513, Lord Chief-Justice Denman remarked (at p. 517) :

“The learned judge apjoears to have told the jury that no interruption by the public for a shorter period than twenty years would destroy the right (in a private way). If this were laid down as a rule of law, or even as a conclusive presumption of fact, we think, in the former case, it was erroneous, and in the latter would be likely to mislead the jury, as turning their attention to a definite period of time as the ground for decision, when time might in truth be wholly immaterial, or only in part material. * * *

“The learned judge appears to have proceeded on the ground that, as twenty years’ user in the absence of an express grant would have been necessary for the acquisition of the right, so twenty years’ cesser of the use in the absence of any express release was necessary for its loss. But we apprehend that, as an express release of the easement would destroy it at any moment, so the cesser of use, coupled with any act clearly indicative of an intention to abandon the right, would have the same effect without any reference to time. For example, this being a right of way to the defendant’s malt-house, and the mode of user by driving carts and wagons to an entrance from the lane into the malt-house yard, if the defendant had removed his malt-house, turned the premises to some other use, and walled up the entrance, and then for any considerable period of time acquiesced in the unrestricted use by the public, we conceive the easement would have been entirely gone. It is not so much the duration of the cesser as the nature of the act done by the grantee of the easement, or of the adverse act acquiesced in by him, and the intention in him which either the one or the other indicates, which are material for the consideration of the jury,

“The period of time is not only material as one element from which the grantee’s intention to retain or abandon his easement may be inferred against him, and what period may be sufficient in any particular case must depend on all the accompanying circumstances.

“This is the principle on which the judgments of all the members of this court proceeded in Moore v. Rawson, 3 Barn. & C. 332, and which was adopted in Liggins v. Inge, 7 Bing. 682, 693. It is true that those were cases between two individuals, and not between the public and one individual. But that cau make no difference.”

The doctrine of Queen v. Chorley has been approved in this state. Said Mr. Justice Depue, speaking for the supreme court in Horner v. Stillwell, 35 N. J. Law (6 Vr.) 307 (at p. 314) :

“Even where the cesser of use has not been for twenty years, adverse acts on the part of the owner of the servient tenement, which have been acquiesced in by the owner of the easement, are material for the consideration of the jury on the question of abandonment. Queen v. Chorley, 12 Q. B. 515. Under such circumstances abandonment arises out of the principles of an equitable estoppel.”

Tlie same learned judge, speaking for the court of errors and appeals in Raritan Water Power Co. v. Veghte, 21 N. J. Eq. (6 C. E. Gr.) 463, cited Queen v. Chorley (at p. 480), where he said:

"Abandonment is a question of intention. Non-user is a fact in determining it. * * * Its weight must depend upon the intention to be drawn from its duration, character and accompanying acts.”

In Jordan v. City of Chenoa, 166 Ill. 530, it was held:

"While the statute of limitation does not run in favor of an individual against a municipality holding streets and alleys for the general public under acceptance of a dedication, yet the doctrine of equitable estoppel arising from abandonment and nonuser maj'- be invoked against it.”

City of Big Rapids v. Comstock, 65 Mich. 78, was a case in which the city filed a bill to enjoin the erection of a' building that encroached four and one-half inches on a street, and it was held that equity would not grant relief, it being out of all proportion to the nature and extent of the injury done or likely to be sustained by the encroachment.

In Lyle v. Lesia, 64 Mich. 16, it was said:

"Where a highway was surveyed, and more or less work done thereon for some ten years, when a new road was opened, and the old one abandoned by the public, there'being for twelve years no travel over it except by stragglers and lumbermen on foot, and the teams of persons owning the land, who used the old road for their convenience in working the premises, and six years after such abandonment the landowner fenced in the land, which remained undisputed for six years, when the commissioner of highways assumed to enter upon the premises to repair the old highway—Held, that an injunction was properly granted to restrain such action, there being no principle of equity that will sanction or sustain such attempt to rehabilitate.an extinct road with the life it may have once had by reason of its user before its abandonment.

"Where a highway commissioner altered and practically vacated .a highway, which action was accepted and treated for twelve years as valid by everyone interested, and by the public generally —Held, in a suit by the landowner to enjoin the public authorities from reopening said road, that they cannot defend by showing the illegality of the action of the commissioner in vacating ■the road for want of the required statutory notice to the landowners.”

Now, as we have seen, cases of this character, that is, cases in which an easement is said to be extinguished by abandonment, form a law unto themselves, that is, each case depends upon its own particular facts as to whether or not there has been an abandonment, irrespective of any question of the operation of a statute of limitations. Abandonment depends upon the nature of the acts done or acquiesced in with reference to the obstruction of the way. The time of the cesser of the use may be wholly immaterial;-and the period of time in any given case must depend on all the accompanjdng circumstances.

Now, further, the facts upon which an abandonment has been worked in this case are the building of the abutment wall to a sheer height of some seventeen feet entirely across the way in question, thus completely obstructing it; the fact that it remained so obstructed for the six years between 1889 and 1905; that the complainant’s predecessor in title, Dehe, or his devisee, had title to the premises during all that time; that the building of an embankment by the defendant from the top of the South- • ard street wall down to and past the crematory which he erected partly on the strip in question was a decided appropriation by him of the way to his own use. This he did during the holding of Dehe, wh'ose rights in the way had become extinguished. Dehe and his devisee retained title until July, 1897, while the proofs show that the defendant acquired title and built the crematory in 1895.

These further facts are pertinent: The embankment has been removed at the abutment wall, at least to the depth of the cellar of the building which has been partly erected, say to a depth of six to eight feet, and, if opened as a street, the complainant would, like her predecessors in title, be able only in traversing the way to go up against a stone wall. The complainant has ingress and egress to and from her lands into Southard street just north of tire locus in quo, and on the south into Raywood alley, and, therefore, no necessity exists for use of the way by her.

The truth is there was an absolute physical extinction of the way for all practical purposes by the building of the Southard street bridge with its abutment wall reaching across and closing up the way. It must be presumed to have been done by proper municipal authority. Its closing may have been the taking of private property for public use and for which persons having an easement of way in the so-called street were or are entitled to ■compensation for the damages sustained.

This brings me again to the offer of the defendant to show that Dehe gave a release to the county for the damages he had sustained by the obstruction of the way by the building of the abutment to the bridge. I am now satisfied that I erred in excluding the evidence. Although the giving of the release by Dehe while the owner of an easement in the locus in quo did not create an estoppel by deed between him and the owner of the servient tenement, it was, nevertheless, an act in pais recognizing the practical extinguishment of the easement, and is evidence of his abandonment of all claim to have the way open for use. Dpon familiar principles the acts and declarations of former owners made during the existence of their title bind their successors in title. Horner v. Stillwell, 35 N. J. Law (6 Vr.) 307; see, also, Raritan Water Power Co. v. Veghte, 21 N. J. Eq. (6 C. E. Gr.) 463. However, the erroneous exclusion of the release, is harmless to the defendant, because, without the proof that it would make, I conclude that he should prevail. If I thought otherwise, and if proof of the release of Dehe to the county were, in my judgment, essential to the défendant’s case, I would continue the hearing and permit him to make proof of it. Whitehead v. Hamilton Rubber Co., 53 N. J. Eq. (8 Dick.) 456.

It would be stretching equity and good conscience too far, I think, to hold that this mere cul-de-sac, no bigger than a couple of city lots, should be opened by a mandatory injunction, so that the complainant could have the privilege of walking over it up against a stone wall, when, as seen, for six years it was absolutely obstructed by the wall, in consequénce of which obstruction a row of houses to which it was formerly 'tributary were demolished, because no longer accessible, when afterwards defendant on acquiring title to the tract built his own embankment to give him access to Southard street for his own purposes and after-wards removed the embankment, at least in part, and when the complainant has two places of ingress and egress to her premises, one of which is just north of the locus in quo. To paraphrase the language of one of the cases, there is no principle of equity that requires the court to rehabilitate this extinct way because of the life it once had by reason of its user before abandonment.

The county of Mercer rendered absolutely useless, if it did not totally extinguish, this easement. The complainant’s remedy, if any she has (and if the lapse of time and Dehe’s release does not preclude her), is against the county for damages rather than against the owner of the fee in the locus in quo, who is, under all the circumstances, an innocent purchaser for value, and who should not be required to keep the way open for the complainant’s useless and purposeless enjoyment. I say the defendant is an innocent purchaser for value under the circumstances, and the circumstances justify the assertion. It must have been perfectly apparent to every one that by the building of the approach to the Southard street bridge the way in question, sometimes dignified by the name of a street, was effectually and permanently closed. It has been so acted upon. Of this there can be no doubt. The defendant acquired title for value in 1895, thirteen years ago, and has been in undisputed possession till now. He built and operated a garbage crematory upon part of it, using an embankment which he erected as a way to the crematory over the lot in question. It was not when he removed part of the embankment, but when he commenced the erection of his building that complaint was made. In my judgment, he is entitled to remain in undisturbed possession.

It should not be forgotten that the complainant’s devisor purchased from Dehe’s devisee the premises, which have always surrounded the locus in quo on two sides. It does not appear when Dehe died, but he was alive during part, if not all, of the six years that the way was effectually obstructed by the abutment wall. When the complainant’s devisor purchased of Dehe’s devisee he saw, if he did not see before, the embankment built by the defendant, running down from the wall on Southard street to his, defendant’s cremator}', which occupied sixteen out of the twenty-five feet of the way in question.

The complainant lays great stress upon the fact that her deed calls for a tract bounded upon the locus in quo, describing it as a street twenty-five feet wide and two hundred and four feet deep. This “street” was so decidedly obstructed by the crematory and was of such a peculiar character when her advisor took title, as to put him upon notice of all the antecedent facts and conditions which had obtained with reference to the locus in quo, and he was effectually estopped by constructive notice, if he did not already have or.then acquire actual notice of the practical extinguishment of the easement. Raritan Water Power Co. v. Veghte, 21 N. J. Eq. (6 C. E. Gr.) 463, 478. Of course, the complainant acquiring title by devise, took her lands in the exact situation in which her devisor left them.

The right the complainant claims cannot be for a way built by the defendant, seventeen feet high at Southard street, sloping down to the natural level of the ground some distance back, but a right to traverse a way on that level over its entire length. As already seen, the way was totally obstructed for all practical purposes, because ingress and egress to and from it to Southard street was extinguished by the presence of the wall, for six years, and for the twelve years thereafter, ending at the time of the filing of the bill, the way was not only obstructed, but appropriated by the defendant by his embankment and crematory. Therefore, the obstruction, amounting to' an extinction, of the way, has continued for seventeen years and upwards. In this obstruction and extinction the complainant’s predecessors in title, and the complainant herself, have acquiesced. She cannot now be heard to say that the defendant’s possession has not become an indefeasible right.

The complainant’s bill must be dismissed, with costs.


source: Caselaw Access Project

author: Walker, V. C.

license: Public Domain

text:
    Staats V. D. Clark v. Ellen S. Van Cleef et al.
    [Decided November 7th, 1908.]
    3. A motion to strike a cross-bill because it does not allege ground for equitable relief, and because the alleged equitable mortgage sought to be foreclosed is barred by limitations, &c:, is equivalent to a demurrer.
    2. A motion to strike out a cross-bill because'it does not allege any ground for equitable relief will be sustained only in case all the facts, taken together, do not make a case on which complainant is entitled to any relief.
    3. Equity will decree specific performance of a contract to give a mortgage on land, where the contract, although by parol, has been executed, on complainant’s part, by payment of the money for which the mortgage was to be executed.
    4. A motion to strike out a cross-bill to enforce an equitable mortgage properly specified as a distinct ground that the alleged mortgage was barred by limitations.
    5. Defendant’s mother, owning property, subject to a mortgage, on December 33th, 3880, applied to defendant to take up the mortgage, promising to give to defendant a mortgage on the property for the amount advanced. Defendant took up the mortgage, which was thereupon released, but no new mortgage was executed by her mother prior to her death fourteen years after the transaction, when defendant became entitled to an undivided one-third of the property, and was in possession, in law and in fact, with the other heirs, her co-tenants, for thirteen years prior to suit for partition.—Held, that since after the mother’s death defendant’s co-tenants had no opportunity to assert a hostile title, defendant having neither possession as mortgagee of record nor in fee, defendant could not make her alleged equitable mortgage the basis of a claim to defeat her co-tenants’ claim of limitation.
    G. Where defendant paid off a mortgage on her mother’s land, on the mother’s promise to execute a new mortgage to defendant for the amount advanced, which she failed to do, defendant had a remedy at law by assumpsit to recover the money so advanced, which was barred after six years, and hence could not maintain a suit in equity to compel specific performance of the contract to execute the mortgage, and to foreclose a lien on the land therefor, after the expiration of a similar period.
    7. The breach of all parol or simple contracts, whether verbal or written, express or implied, as for the payment of money, or for the performance or omission of any other act, is remediable by action of assumpsit.

      8. Entry of a judgment nunc pro tunc as of tlie date of submission will be ordered on the suggestion that the party against whom the judgment is rendered has died in the meantime.
    On motion, to strike out cross-bill.

      Mr. Arthur H. Bissell, for the motion.

      Mr. Alan II. Strong, contra.

   Walker, V. C.

The bill is one for partition of lands of which Joanna Clark, late of New Brunswick, died seized. The defendant Ellen S. Van Cleef, who owns an equal undivided one-third of the premises, has answered and sets up that on January 16th, 1879, Mrs. Clark, her mother, the then owner, made a mortgage upon the premises in question to a Mrs. E. L. Macauley for $-1,000; that on or about December 11th, 1880, Mrs. Clark applied to the defendant, her daughter, and requested her to pay off Mrs. Macauley’s mortgage, agreeing that if she would do so, that she, the mother, would secure her, Mrs. Van Cleef, for the money expended, by making a mortgage upon the premises to her; that the defendant relying upon the promise of her mother paid off Mrs. Macauley’s mortgage on December 11th, 1880, and caused it to be canceled of record, and also caused to be prepared a bond and mortgage from her mother to her and tendered it to her mother for execution, but for some reason (not stated) the execution of the mortgage was temporarily deferred, and was from time to time thereafter postponed, and was never in fact executed, although Mrs. Clark never denied that Mrs. Van Cleef had advanced the money, nor that Mrs. Clark owed the money to her daughter, nor that she agreed to give the mortgage mentioned as security. Then, by way of cross-bill, Mrs. Van Cleef prays a decree that she is entitled to a lien upon the whole premises for the' money expended in the discharge of the mortgage of $1,000, with interest from December 11th, 1880.

Counsel for Mrs. Van Cleef moves under rule No. 213 to • strike out the cross-bill for these reasons—first, that it does not set forth any ground for equitable relief; second, that the alleged equitable mortgage is said to have been made more than twenty-seven j^ears ago, and is barred by the statute of limitations and' the practice of this court, and third, upon such other grounds as appear from the reading of the cross-bill and the pleadings heretofore filed in this cause.

This motion is equivalent to a demurrer. Stevenson v. Morgan, 63 N. J. Eq. (18 Dick.) 707.

The first reason assigned in the notice, namely, that the cross-bill does not set forth any ground of equitable relief, will prevail only if all the facts taken together do not make a case on which the complainant is entitled to any relief. Safford v. Barber, 70 Atl. Rep. 371. Now, the relief sought is the establishment'of an equitable mortgage by way of the creation of a lien upon land, and if this court can decree the specific performance of a parol agreement to make a mortgage, then, if the defendant is for any reason entitled to have such mortgage, or its equivalent, this ground of motion fails; even though for some specific reason the defendant might not be entitled to the relief just mentioned, as will presently be seen. That is, it will be seen that by the operation of the statute of limitations the defendant is barred of relief.

The court will decree specific performance of a contract to give a mortgage upon lands, where the contract, although by parol, has been executed on the complainant’s part. Dean v. Anderson, 34 N. J. Eq. (7 Stew.) 496, and reporter’s note. Taking the allegations of the cross-bill to be true, which must be done on this motion, the conditions exist which entitle Mrs. Van Cleef to the relief she seeks, that is, the consideration for the mortgage passed from her, and that, too, upon her reliance upon the promise of her mother to make the mortgage claimed. On the question of want of equity generally, the defendant fails.

This brings me to the consideration of the second ground of the motion, namely, the statute of limitations. This has been specified as a distinct ground, and properly so under the rule on which the motion is based, and also under Safford v. Barber, ubi supra, and the cases therein cited.

Counsel for the complainant points out that the lien by way of mortgage which the defendant seeks to establish had its in-caption on December 11th, 1880, over twenty-seven years ago, and, further, that the defendant cannot claim to be-in any better position than the rule that equity regards as done that which she should have been done, would place her, that is, that she has no greater equity than if a mortgage had formally been made and delivered to her on the date last mentioned, and, as the cross-bill itself shows that no part of the principal nor any interest has been paid upon the claim, the statute of limitations would be a bar the same as in a foreclosure case (Blue v. Everett, 56 N. J. Eq. (11 Dick.) 455; Colton v. Depew, 59 N. J. Eq. (14 Dick.) 126; S. C., 60 N. J. Eq. (15 Dick.) 455), and that, by analogy and upon principle, she should be held to be barred of the remedy she seeks here.

Counsel for the defendant Mrs. Yan Cleef contends that the limitation of twenty years, which would be necessary to bar foreclosure of a mortgage, has not run because upon Mrs. Clark’s death in March, 1894, the fee in the lands descended to her heirs-at-law, one of whom was Mrs. Yan Cleef, who, as remarked, inherited an equal undivided one-third, and that since the death of Mrs. Clark, there has been no possession adverse to Mrs. Yan Cleef, who, it is asserted, has been in possession in law and in fact together with the other heirs. It will be observed that it was less than fourteen years from the date of the transaction to the death of Mrs. Clark, and that Mrs. Yan Cleef has been an owner of an undivided interest in the fee since that time.

The contention is, that there has not been twenty years’ possession adverse to Mrs. Yan Cleef, and that, therefore, she is entitled to relief the same as though her mortgage had been in existence all the time. To this proposition I cannot assent.

After the death of Mrs. Clark, the co-tenants of Mrs. Yan Cleef had no opportunity to assert a hostile title to her because she had no possession as mortgagee either of record or by matter in pais, notice of which was brought home to her co-tenants; certainly she had no title of record, and no notice in fact is disclosed or claimed. To permit Mrs. Yan Cleef to make her latent and secret equity the basis of a claim to defeat an adverse possession, if, in fact, it be necessary for her co-tenants to rely upon any adverse possession, which I do not concede, would be inequitable.

My judgment is against the claim set up by the cross-bill upon this question of the 'statute of limitations based upon a twenty years’ adverse possession. But, whether I be right or wrong in this view, there is another statute of limitations, which, to my mind, is entirely dispositive of the case against Mrs. Van Cleef. It is the six years period within which an action of assumpsit may be commenced for the recovery of damages for a breach of a simple contract for the payment of money, for, even if she were entitled to an equitable mortgage, she also had a remedy at law for the recovery of the amount she expended for the use of her mother at her mother’s request.

Where there is both a legal and an equitable remedy for the same cause of action, if the legal remedy is barred by lapse of time, the equitable remedy will also be held to be barred. Smith's Administrator v. Wood, 42 N. J. Eq. (15 Stew.) 563.

The averment is that Mrs. Van Cleef, at the special instance and request of her mother, Mrs. Clark, laid out and expended the sum of $4,000 for her in the payment and discharge of a mortgage, upon her promise to execute a mortgage to Mrs. Van Cleef to secure her upon the land which she exonerated by the payment of the mortgage for her mother. The allegation further is, that the mother failed and neglected to make the mortgage to her daughter. The money was advanced December 11th, 1880. Upon the breach of this contract, which occurred as soon as the contract was made, Mrs. Van Cleef, instead of resorting to equity for the establishment of a lien upon the lapds for the money in question, or for a specific performance of the contract to execute a mortgage, could have sued her mother in a common law court for money paid to the use of her mother.

The breach of all parol or simple contracts, whether verbal or written, or express or implied, or for the payment of money, or for the performance or omission of any other act, is remediable by action of assumpsit. Thus it lies to recover money lent by the plaintiff to the defendant, or paid by the plaintiff on the account of the defendant at his request. 1 Ch. Pl. *99.

In. a case of a bill for an account of the profits of an estate received by the defendant while the complainant was an infant, it appeared that the defendant had possession under an agreement constituting him a trustee for the infant. The bill was not filed until more than six years after the infant became of age, and it was held, that the statute barred the action in equity as it would have barred a common law action of account, as the complainant might have had his action of account at law, and there was, therefore, no necessity for his seeking relief in equity. Partridge v. Wells, 30 N. J. Eq. (3 Stew.) 176 (at p. 179). In this case (Partridge v. Wells), Vice-Chancellor Van Fleet remarked: ‘“The test, then, obviously prescribed by the rule is, had the suitor a remedy at law which he has lost? If the complainant in this case had a complete remedy at law, which has been lost by lapse of time, he is not entitled to the remedy he seeks here.”

There can be no doubt of Mrs. Van Cleef’s adequate and appropriate remedy in a court of law in an action of assumpsit for money paid to the use of her mother, during the six years which elapsed next after the date of the transaction.

This ground of objection, namely, that the statute of limitations is fatal to the relief sought by the defendant Mrs. Van Cleef, on her cross-bill, being valid, the motion will prevail, and the cross-bill must be struck out.

It is unnecessary to consider the third ground of objection to the cross-bill, which, by the way, would not be considered in any event as it is too vague and general.

Since the argument of this motion the death of the complainant has been suggested on the record. This being so, the order striking out the cross-bill may be entered nunc pro tunc, as .of August 25th last, the day on which the matter was submitted. This is the usual practice. Dan. Ch. Pl. & Pr. (6th Am. ed.) *1017; Burnham v. Dalling, 16 N. J. Eq. (1 C. E. Gr.) 310.


text:
    Robert H. McCarter, attorney-general of the State of New Jersey, ex rel. Board of Railroad Commissioners of the State of New Jersey, v. United New Jersey Railroad and Canal Company and The Pennsylvania Railroad Company, lessee.
    [Decided November 20th, 1908.]
    1. A demurrer admits the truth of the facts in a bill or information only for the purpose of denying that the law arising upon those facts entitles the complainant or informant to relief; and a demurrer containing a protestation of the truth of the facts, while thus qualifiedly admitting them, is not bad as a denial of the truth of the facts pleaded, but is good in form.
    2. When the attorney-general files an information in the court of chancery under a statute imposing certain duties upon railroad corporations, and prays relief which by the statute the court is empowered to grant, the •defendants may demur generally, alleging that the informant has not made or stated such a case as entitles him to relief; and a demurrer in such form constitutes an appropriate pleading.
    3. A motion to strike out a demurrer as insufficient is according to the ■established practice.
    4. A demurrer which goes to the whole information and raises the question of want of power in the court to grant relief will not be struck out as insufficient unless it is frivolous; and especially when the argument ■of the motion was confined alone to the question of form will it not be ■struck out, if the form be good.
    5. The demurrer in this case considered, and that part of it which is in the form of a general demurrer, held to be good; and that part which ■consists of specification of causes of demurrer, held bad, because not pointing out particular defects in the information.
    On motion to strike oat demurrer.

      Mr. Nelson B. Gashill, assistant attorney-general, for the motion.

      Mr. Alan II. Strong, contra.

   Walker, Y. C.

The attorney-general on the relation of the board of railroad commissioners has exhibited an information in this court, in which he shows that the board was constituted and appointed pursuant to the provisions of an act of the legislature entitled “An act to create a board of railroad commissioners for the State of New Jersey and prescribing its powers and duties,” approved May 15th, 1907; that in section 8 of the act the board is charged with the duty to hear and examine complaints touching railroad service, and applications for changes of stations, crossings, abolition of grade crossings and all other matterb of railroad operation; to see that the laws of this state regulating said railroad companies are observed and enforced; to have authority upon such matters to make and issue such orders to any railroad company as in the judgment of said board shall be reasonable and just, which said orders said railroad company shall comply with; that upon failure to do so said board shall report the failure to comply with said orders and all such violations, with the facts in their possession, to the attorney-general, and it shall then be his duty, within thirty days, to institute proper proceedings to enforce the order or orders of said commission, to recover suitable penalties or damages, or to institute proceedings in equity, mandamus, injunction, receivership' proceedings or other civil remedies.

Further, that “The New Jersey Railroad and Transportation Company,” a body corporate by virtue of the provisions of an act of the legislature entitled “An act to incorporate The New Jersey Railroad and Transportation Company,” passed March 7th, 1832, by section 6 of said act of incorporation was invested with all the rights and powers necessary to the construction and repair of a railroad from New Brunswick through or near Rahwa3r and Woodbridge, through Newark, and thence to the Hudson river opposite the city of New York; that by section 20 of said act of incorporation it was made the duty of said New Jersey Railroad and Transporation Company to construct and keep in repair, good and sufficient bridges or passages over or under said railroad where any public or other road shall cross the. same, so that the passage of carriages, horses and cattle on said road shall not be impeded thereby; that said New Jersey Railroad and Transportation Company subsequently, and in pursuance of the powers and subject to the limitations of said act of incorporation, constructed its railroad upon the route mentioned; that subsequently a certain agreement of consolidation was made between the Delaware and Raritan Canal Company, The Camden and Amboy Railroad and Transportation Company, on the one part, and the said New Jersey Railroad and Transportation Company, on the other part, whereby the said New Jersey Railroad and Transportation Company became merged in and with the other parties to the said agreement, under the name of “The United New Jersey Railroad and Canal Company;” that the said agreement was made pursuant to the powers granted by, and subject to the limitations contained in, a certain act of the legislature entitled “An act to validate and confirm certain agreements between the companies owning the railroad lines between New York and Philadelphia,” approved February 27th, 1867; that in and by section 2 of said act it was provided that the respective charters of said companies with all the restrictions and liabilities therein contained, except as necessarily modified by such consolidation, should continue in force; that subsequently, and on June 30th, 1871, the Delaware - and Raritan Canal Companj', the Camden and Amboy Railroad and Transportation Company, and the said New Jersey Railroad and Transportation Company, being then merged into and known as the United New Jersey Railroad and Canal Company, together with the Philadelphia and Trenton Railroad Company, as parties of the first part, entered into certain articles of lease and contract with the Pennsylvania Railroad Company, whereby the latter company, as lessee, became, and was, and'is, entitled to hold, and now does hold, use and enjoy the property and franchises of the several lessors; that said articles of lease and contract were ratified, confirmed and validated bjr an act of the legislature entitled “An act to validate and confirm a certain lease and contract between the companies now known as the ‘United New Jersey Railroad and Canal Companj'-/ and ‘The Pennsylvania Railroad Company,’ ” approved March 27th, 1873; that a railroad, constructed and operated ¡oursuant to the privileges and powers, and subject to the limitations contained in the act incorporating the New Jersey Railroad and Transportation Company, is now operated through the city of Rahway, and the tracks thereof cross a certain public streeb and highway of said city, known as Irving street, at grade, and at a point where said street is joined by another public street and highway known as Broad street, which runs parallel with the right of way of said railroad; that said crossing, is about sixty-five feet long and forty-five feet wide, and over it, the railroad, has four tracks, two of which are normally used for freight and two for passenger trains, and over which tracks continuously passes and repasses at all hours of the day and night an enormous and heavy railroad traffic destined to and from the city of Newark, Jersey City, New York and elsewhere; that the right of way of said railroad through the city of Rahway is fenced on each side for practically its entire extent, by reason whereof no speed regulations for the operation of trains thereon are observed within the limits of said city, but a large number of express trains, both freight and passenger, constantly pass through the said city and over the said crossing at a high rate of speed; that the city of Rahway is estimated to contain ten thousand inhabitants and is divided by the said railroad tracks into two practically equal parts, of which the eastern part is chiefly the residential section and the western part chiefly the business section, and all the travel and intercourse between tire two sections must pass and repass over the said railroad tracks by means of the public streets and highways of the city; that Irving street by reason of its location is one of the principal crossings and is constantly and continuously used by a very large number of pedestrians, teams, both light and heavy, and by one line of electric street railway cars; that there is no overhead bridge or underground tunnel at Irving street, but that all travel must pass over said crossing at grade, which crossing is at present protected by appliances commonly known as safety gates, and by a flagman, but owing to the heavy travel over said crossing by pedestrians, vehicles and street cars, and the continual and constant passage of trains at a high rate of speed over and along the said railroad tracks at said street, the inhabitants of the city of Rahway and all other persons passing along said street and across the said railroad tracks at that crossing are constantly and continuously subjected to inconvenience, delay and obstruction in the conduct of their affairs, and to the liability of bodily injury and death, and that the passengers and employes upon the trains operated upon the said railroad tracks are also constantly and continuously subjected to the liability of bodily injury, arising from the collision of such trains with vehicles upon the said crossing.

Further, that the Pennsylvania Eailroad Company, lessee as aforesaid, has been requested by the said board of railroad commissioners to provide some other method for the passage of travel over said Irving street, which will remove or alleviate the present inconvenience, delay obstruction and danger hereinbefore set out, and render the said crossing a good and sufficient passage over or under the said railroad, as required by the act of the legislature incorporating the said New Jersejr Eailroad and Transportation Company, but that the said Pennsylvania Eailroad Company, lessee as aforesaid, hitherto has refused, and still does refuse so to do.

Further, that it is the duty of said Pennsylvania Eailroad Company, lessee as aforesaid, by virtue of the premises aforesaid, to construct and keep in repair a good and sufficient bridge or passage over or under the said railroad where Irving street crosses the same in the city of Bahway, so that the passage of carriages, horses and cattle on said Irving street shall not be impeded thereby, and that this duty is a continuing duty which is not discharged when once performed, but alwa}rs must be measured by circumstances, and this duty now demands that the crossing as now maintained shall be discontinued and some other method of crossing substituted, which will be, measured by present conditions and circumstances, a good and sufficient crossing within the meaning of the act incorporating the New Jersey Eailroad and Transportation Company.

The prayer is that the United New Jersey Eailroad and Canal Company and the Pennsylvania Eailroad Company, lessee of the United New Jersey Eailroad and Canal Company, may, by mandatory injunction, be compelled to construct and keep in repair good and sufficient bridges or passages over or under the said railroad tracks where Irving street crosses the same in the city of Rahway, so that the passage of carriages, horses and cattle on said Irving street shall not he impeded thereby, the sufficiency whereof shall be measured and determined by the exigencies of the present public travel over said crossing; and that in order to give force and precision to the order of the court and to enable the defendants more readily to comply therewith, and the informant more readily to inform the court in the event of noncompliance with its order, if such should be the case, that the court may inquire into and thereupon direct what method of crossing, whether by change of grade of railroad tracks or of Irving street, or otherwise, should be adopted by the defendants and constructed and maintained by them as a good and sufficient crossing over the said Irving street, and for other and further relief.

To this information the defendants the United New Jersey Railroad and Canal Company and the Pennsylvania Railroad Company have jointly and severally demurred. The demurrer is general in form, and it also purports to specify several causes of demurrer in addition. That part which is general, reads as follows:

“(1) These defendants by protestation, not confessing all or any of the matters and things in the said information contained to be true in such manner and form as the same are therein set forth and alleged, demur thereto, and for cause of demurrer show that the said informant hath not, in and by the said information, made or stated such a case as entitles him in this honorable court to any discovery from these defendants or either of them, or to any relief against them or either of them as to the matters contained in the said information or any of such matters.”

For further cause of demurrer the defendants aver (2) that it does not appear by the information that the existing crossing of the railroad tracks by Irving street is not a good and sufficient crossing and passage, nor that the said defendants or either of them have not fully discharged their legal obligation in that behalf; (3) that the mayor and common council of the city of Rahway are not made a party to the information; (4) that the board of railroad commissioners has no lawful power or authority in respect to the conditions alleged in the information to exist at the crossing of Irving street and said railroad, nor any lawful power or authority to act as relator in the information; (5) that this court is without jurisdiction to grant any relief under the information.

The attorney-general now moves to strike out the demurrer (1) for the reason that it contains in fact both a plea and a demurrer to the information; also (2) to strike out the first cause of demurrer because it is too general, in that it does not state with sufficient particularity the. cause alleged, and also because it does not contain any confession of the truth of the matters set out in the information, and thereafter denies that such matters entitle the informant to any discovery or relief, and because it raises a question of fact upon the denial of the truth of the matters contained in the information; also (3) to strike out the second cause of demurrer because it is too general and does not aver with sufficient particularity any cause of demurrer; also (4) to strike out the third cause of demurrer because it does not set forth with sufficient particularity any right on the part of the defendants to complain of the misjoinder or non-joinder of other parties, nor the necessity for a joinder of said parties; also (5) to strike out the fourth cause of demurrer because the same does not set forth with sufficient particularity the reason why the board of railroad commissioners has no lawful power or authority in respect to the conditions alleged in the information, nor to act as relator; also (6) to strike out the fifth cause of demurrer because it does not set forth with sufficient particularity wherein the court of chancery is without jurisdiction to grant any relief under the information. .

s The motion to strike out is rested on six different grounds and the causes of demurrer including the general demurrer for want of equity number five. The first two objections go to the general demurrer, which I have numbered one.

A motion to strike out an ihsufficient demurrer is in accordance with the established practice. Bishop v. Waldron, 56 N. J. Eq. (11 Dick.) 484, 486.

The several grounds of the motion to strike out will now be considered in their order. .

First. The informant asserts that the demurrer contains in fact both a plea and a demurrer to the information. This objection on the argument was leveled against that part of the demurrer which is general and which is above recited verbatim. The contention of the attorney-general in this regard is, that the demurrer does not unequivocally admit the truth of the information, and that the pleading, as drawn, only qualifiedly admits the truth, that is, admits the truth only for the purpose of argument, and reserves the question of fact. He cites Graham v. Spence, 71 N. J. Eq. (1 Buch.) 183, as authority for his position. Neither that case nor Teeter v. Veitch, 66 N. J. Eq. (21 Dick.) 162, upon which it is rested, bear out eounsePs contention. The form of the demurrer interposed in neither of those cases is set out in the opinions. In the former case it is distinctly said that a demurrer which denies facts alleged in the bill will not be considered; and in the latter it is held that if a demurrer introduces any facts or misrecites the statement of the bill it will not be sustained.

The demurrer itself is in the form immemorially used in cases where an attack is made upon a bill fox want of equity, and follows the form of the commencement of a demurrer in Dick. Ch. Free. 89, and follows the general averment of rvant of equity. Ib. p. 92. Protestation against the truth of the matters contained in the bill is a practice borrowed from, the common law and undoubtedly intended to avoid conclusion in another suit or in the suit in which it is put in, in case the demurrer should be overruled. Dan. Ch. Pl. & Pr. *585.

The only criticism which can be made upon the form of-the demurrer, so far as I can see, is, that it asserts that the informant is not entitled to any “discovery” as well as any relief. As no discovery is prayed, the demurrer might better have averred that the informant had not made or stated such a case as entitles him to any “relief” against the defendants, omitting reference to discovery. However, the assertion that the informant is not entitled to “discovery” should be, and will be, disregarded as surplusage.

Strictly speaking, there is no “equity” in the information at all. It is not a bill praying relief under any recognized head of equity jurisprudence, but is a pleading invoking the aid of the court under a statutory jurisdiction recently conferred. The court of chancery is the forum pointed out‘for the administration of the remedy given bjr the legislative enactment upon the particular state of facts pleaded, because its writ of injunction is the only appropriate method of enforcing the statutory duty imposed upon the defendants. However, the defendants are entitled to resist the informant by any defence known to equity pleading, one of which is by demurrer. And the demurrer may be of any kind recognized in practice. There are, as is well known, two kinds, general and special; and although rule 209 of this court requires that all demurrers, whether general or special, shall distinctly specify the ground or several grounds of demurrer, it has been held that a simple statement of want of equity, in the usual language of a general demurrer, will constitute a sufficient specification of the ground of demurrer in cases where the court finds, on looking at the complainant’s bill, that his right to relief is doubtful or uncertain. Essex Paper Co. v. Greacen, 45 N. J. Eq. (18 Stew.) 504; Safford v. Barber, 70 Atl. Rep. 371.

If, in a cause invoking a strictly statutory jurisdiction of the court, the defendant conceives that such a case has not been made by the bill, or other equivalent pleading, as entitles the complainant to relief, he may file a demurrer, general in form, which form, is just as appropriate as a general objection to relief under a statute as under a principle of equity, if the language employed is that such a case has not been made or stated as entitles the complainant to relief.

Now, that is exactly what the general demurrer in this case avers, namely, that on the face of the information the informant is not entitled to relief. That question the demurrant is entitled to solemnly argue, and it cannot properly be considered and decided on a motion to strike out, unless upon inspection of the information it so clearly appears that the informant is entitled to relief that the demurrer may be said to be frivolous. In this connection it is sufficient to remark that the matter sub judice was presented and argued only as to the form of the demurrer, and, consequently, the only question that is decided is as to the form of the pleading. Its form, in my judgment, is arood and sufficient.

Second. It is asserted that the first specified cause .of demurrer is too general in that it does not state with sufficient particularity the cause alleged, and because it denies any confession of the truth and denies that the statements of the information entitle the informant to any relief, and because it raises a question of fact upon the denial of the truth of the matter contained in the information.

This is disposed of in the observations already made on the form of the general demurrer.

Referring again to the form of a demurrer as regulated by rule .309, it is to be observed that it has been held that where the defect in the bill is obscure or latent to such an extent that the court cannot readily discern it, an explicit statement of the ground will be required. Essex Paper Co. v. Greacen, ubi supra. And where the want of power in the court to grant the relief prayed springs out of some cause which can be distinctly stated in the demurrer in an intelligible proposition, whether it be collateral to the bill, strictly speaking, or whether involved in the main case, then the cause of demurrer must be specified. Safford v. Barber, ubi supra.

The grounds of demurrer specified in the pleading under consideration will now be examined with a view to ascertaining whether the specifications distinctly point out specific objections to the information.

Third. The assertion is that the second specified cause is too general and does not aver with sufficient particularity any cause of demurrer.

This cause asserts that it does not appear by the information that the existing crossing at Irving street is not good and sufficient or that the defendants or either of them have not fully discharged their legal obligation in respect to it. To my mind the assertion in the demurrer in this behalf is insufficient. The information shows, by the recital of facts which are above set forth, and which it is not necessary here to repeat, that the railroad crossing at Irving street, Raliwajq is such as subjects to inconvenience, obstruction and delay the citizens of this state, who are required to pass and repass over the crossing on foot or with horses and wagons, and subjects to the liability of bodily injury and death all such persons, and also the passengers and employes upon the trains of the railroad operated at the place in question; further, that it is the duty of the Pennsylvania Railroad Company, lessee, by virtue of the act of the legislature incorporating the New Jersey Railroad and Transportation Company to maintain a good and sufficient passage over or under the railroad at Irving street, and that the duty is a continuing one,-not discharged when once performed, but always to be measured by circumstances, and that that duty now demands that the present crossing shall be discontinued and some other method of crossing substituted, which will, measured by present conditions and circumstances, be a good and sufficient crossing within the moaning of the act incorporating the railroad company last mentioned.

The information contains an averment of fads showing, or tending to show, the inadequacy and danger of the-present crossing of Irving street, and the specification of demurrer directed at this state of facts is that they do not make it appear that the crossing is not good and sufficient. Here is no denial of the truth of the facts alleged, but an attempted denial that those facts warrant the conclusion which the pleader draws from them. This, in my opinion, may not be done, because, whether or not the crossing is, at the present time, of the character attributed to it by the information, is an issuable averment, which is confessed by the demurrer. Pope v. Skinkle, 45 N. J. Law (10 Vr.) 89.

Although a demurrer only confesses the matters stated in the bill to be true which' are well pleaded and does not admit any matters of law which are suggested in the bill or inferred from the facts stated (1 Dan. Ch. Pl. & Pr. *545; Redmond v. Dickerson, 9 N. J. Eq. (1 Stock.) 507; Paterson H. Railroad Co. v. Jersey City, Ib. 434), nevertheless, because in the information it is averred that the crossing is insufficient and dangerous, stating facts tending to warrant that conclusion, and because the demurrer confessed those facts, a question is presented, which is traversable and not demurrable.

Fourth. The informant contends that the third specified cause of demurrer is too general and does not with sufficient particularity point out any right on the part of the defendants to complain of non-joinder or necessity for the joinder of any other party. The cause alleged is that the city of Rahway is not made a party to the information.

In Wilson v. Bellows, 30 N. J. Eq. (3 Stew.) 282, Mr. Justice Scudcler, speaking for the court of errors and appeals (at p. 284), said: “Ther'e can be no question that this defect in joining proper parties can be taken advantage of by demurrer where it appears on the face of the bill as it does in this case.”

Whenever a want of parties appears on the face of a bill, it is a cause of demurrer, unless a sufficient reason for not bringing them before the court is suggested. 1 Dan. Ch. Pl. & Pr. *558.

The legislature has imposed upon the railroad company the duty of constructing and maintaining a railroad crossing at Irving street, in the city of Rahway, and has also clothed the relator with the power and duty of enforcing this obligation of the railroad. Whether or not the charter of Rahway imposed upon it any duties in this regard, which conflict with the powers of the relator, or with reference to which it may or must act in conjunction with the relator, might properly be raised by pleas. Certain it is that the information does not, and the demurrer cannot, give us any information on the subject. Duties committed formerly to the municipality of Rahway and devolved upon the relator by the act of its creation, if any such there be, would seem to be duties now belonging to the relator under the rule for the construction of inconsistent statutes; but that is not a matter decided or even mooted upon this argument. There is nothing upon the face of the bill whereby it can be said that it appears that the city of Rahway should' be made a party to the information, or that the defendants are injured by want of the presence of the municipality named as a party in the cause.

This objection to the cause of demurrer is, in my opinion, well taken.

Fifth. The motion is to strike out the fourth cause of demurrer because it does not set forth with sufficient particularity the reason why the relator has not lawful power or authority in respect to the premises nor tn act as relator.

The answer to this is that the assertion by the demurrant that the relator has no power in the premises goes directly to the question of the validity of the act under which the relator was created, and to the scope and extent of its powers. It is only another statement of the want of jurisdiction appearing upon the face of the whole bill, and it is, in my judgment, comprehended under the general demurrer and is bad as a specified cause.

Sixth. It is claimed that the demurrer does not set forth with particular sufficiency wherein this court is without jurisdiction to grant any relief under the information, the cause alleged being that the court is without such jurisdiction. This is only a statement in another form of the general want of jurisdiction, and for the reason given as to the last cause considered it is insufficient. If it refers to any collateral matter, it should have been specifically stated. As the demurrant by his formal demurrer first above referred to has attacked the power of the court to grant relief generally, the attack made in the sixth specified cause of demurrer may well be considered to refer to some collateral matter, else it is entirely unnecessary to be pleaded, and it should, for want of particularity, be overruled.

The result is that the motion to strike out the first cause of demurrer, that is, that part of the demurrer which is general in form, will be overruled, and the motion to strike out the specified causes of demurrer will be granted, and they will all be struck out. That leaves the cause before the court on a general demurrer limited in its scope under the rule of court and decisions to which reference has been made.


text:
    Charles H. Gallagher v. True American Publishing Company.
    [Decided January 2d, 1909.]
    1. The law will take account of the fraction of a day when justice so requires.
    2. If on a day when this court adjudicates that a corporation is insolvent and appoints a receiver thereof in whom title to the company’s real and personal property thereupon vests, a judgment is recovered and entered against the corporation at an earlier hour, the judgment is to be paid out of the proceeds of the sale of the company’s land as a preferred claim, because the judgment was a lien upon the land at the time of the appointment of the receiver. Doane v. Millville Mutual Insurance Go., 43 N. J. Eg. {16 Stew.) 322, distinguished.
    On appeal of the Trenton Trust and Safe Deposit Company, from the decision of the receiver of the defendant corporation refusing preference of a claim.

      Mr. Charles E. Gummere, for the appellant.

      Messrs. James £ Malcolm G. Buchanan, for the receiver.
   Walker, V. C.

On April 28th, 1908, at ten minutes after four o’clock in the afternoon, a judgment was recovered in the supreme court of this state against the defendant company, impleaded with others. The suit was on a promissory note of which the defendant company was the maker, and, consequently, the party primarily liable. The other defendants were endorsers. At eight o’clock in the evening of the same day the bill of complaint in this cause was presented to this court, and an order was thereupon made appointing Edward L. Katzenbach, Esq., receiver of the defendant company. The bill and order were, according to the practice, marked filed as of April 28th, 1908, the date of their presentation and consideration, and were actually filed in the clerk’s office the next day. Mr. Katzenbach qualified as receiver on the 29th, the day the papers were lodged in the clerk’s office.

A claim by the plaintiff as a preferred creditor against the defendant corporation in respect to the lands of the defendant was duly made and presented to the receiver, who disallowed it as a preference. Hence this appeal.

The solution of the question here presented depends upon whether the law will take account of the fraction of a day.

Our act concerning judgments (Gen. Stat. p. 1841 § 2) provides that a judgment shall bind lands from the time of the actual entry thereof on the records of the court.

Section 68 of our present Corporation act (Rev. of 1896; P. L. pp. 277, 299) provides that upon the appointment of a re.'ce'iver the property of an insolvent corporation forthwith vests in him; and, therefore, the property of the defendant company vested in the receiver on the day the appellant’s judgment was recovered. Qualification by giving bond and taking the statutory oath is only necessary to enable the receiver to act; it is not a prerequisite to the’ vesting of title in him. Further, the Corporation act (P. L. 1896 pp. 277, 304 § 86) provides that upon .distribution by the receiver judgment creditors shall be preferred when the judgment has not been by confession for the purpose of preference.

In Doane v. Millville Mutual Insurance Co., 43 N. J. Eq. (16 Stew.) 522, it was held in this court that a Iona fide judgment creditor is entitled to preference in payment of general creditors of an insolvent corporation, but that such preference does not include a judgment obtained against the company on the day when the court took control thereof by issuing an order restraining the company from transacting business. This proceeded upon the principle that the law knows no parts of days. This case was reviewed in the court of errors and appeals and reversed, but not upon the question to which reference has just been made.

In this case (Doane v. Millville Mutual Insurance Co.) the court of errois and appeals remarked (45 N. J. Eq. (18 Stew.) 282) that it was in accord with prevalent judicial views to hold that judgment creditors should be preferred so far as they had acquired liens, and if real estate had become subject to judgment, or if personal property had been bound by delivery of an execution to the sheriff, the rights thus created should not be disturbed. This observation appears to modify what was held by this court in the same case regarding the lien of judgment creditors whose judgments are recovered on the same day a bill in insolvency is filed against a corporation and the court takes control of it by the issuance of a restraining order; but does not, as I understand it, modify the views of this court in that case on the facts of that case which were before the court; for in that case there does not appear to have been any proof as to the time in which the judgment was entered with reference to the time when the order to show cause and restraining order was made. Had these facts been made to appear the decision of the court of chancery in that case might have been otherwise than it was; and, in the absence of such proof, the decision, to my mind, is unassailable. Certainly the court cannot take cognizance of a fraction of a day unless the particular time is brought to its attention. Regarding then the case of Doane v. Millville Mutual Insurance Co., in this court, to have been decided with reference to the particular facts of that case, and having regard to the observation of the court of errors and appeals in the same case, effect can be given to the ruling in the latter court without holding that it overrules the decision of this court.

After all, the rule that the law does not take account of the fraction of a day, is, like almost every other rule, subject to exceptions, and one exception is that which is recognized in the contest between judgment creditors as to who has the prior lien by virtue of a levy made on the same day with another or with other levies. Now, as it is incumbent upon courts to decide who is first in point of time with reference to the delivery of a writ to a sheriff or other officer, and of the priority of a levy upon property as between several executions, it would be quite an anomaly, if not absurd, for this court to refuse to take account of time as between a judgment creditor and a receiver each claiming priority of right in the, real estate of an insolvent corporation, the judgment creditor by reason of the entry of a judgment, which, by the terms of the statute, is a lien upon the land of the defendant upon its entry, and the receiver in behalf of unsecured creditors, asserting that the judgment merely ascertains the amount of the debt due to the creditor, and that no lien thereunder exists upon the land in his possession and to. which he holds title by virtue of the statute and order of his appointment.

The law does take account of parts of days in cases where it is essential so to do in order that justice may be done. Johnson v. Pennington, 15 N. J. Law (3 Gr.) 188. And the exact time of the entry of a judgment may be proved as matter dehors the record. Hunt v. Swayze, 55 N. J. Law (26 Vr.) 33.

The doctrine that the law will not take cognizance of the fractions of a day is a legal fiction, and it will not be permitted to work injustice. Clark v. Bradlaugh, L. R. 7 Q. B. Div. 151, per Justice Denman (at p. 153), and per Justice Williams (at p. 154); affirmed, on appeal, S. C., 8 Q. B. Div. 63.

In Hoppock’s Executors v. Ramsey, 28 N. J. Eq. (1 Stew.) 413, it was held that where a convejrance of land was made on the same day that a judgment was recovered against the grantor, and there was no allegation or proof to show which preceded the other in point of time, the master’s report that the judgment was entitled to priority should be sent back for further proofs. This is a decision to the effect that as between a judgment and a conveyance made on the same day, it is proper and lawful to show which preceded the other in point of time. And that is practically the question which is before me on this appeal. The petitioner is a judgment creditor, whose judgment was entered against the defendant at ten minutes past four o’clock on a certain daj', and the receiver occupies the position of a grantee, upon whom title devolved, not by a deed it is true, but by act of the law operating through the order of his appointment, made at eight o’clock in the evening of the same day.

The fact is that the appellant’s judgment was entered three hours and fifty minutes (practically four hours) before the appointment of the receiver, and the consequent divesting of title to its lands out of the defendant and into the receiver by virtue of the order of his appointment. To hold that the appellant’s judgment was not a lien upon the lands of the defendant at the time of the appointment of the receiver, would be to refuse to give effect to two statutes, namely, that which makes a judgment a lien upon lands from the time of its entry and that which provides that bona fide judgment creditors shall be paid by way of preference out of the assets of an insolvent corporation.

These views lead to a reversal of the decision of the receiver. I will advise an order that the appellant’s judgment be paid by way of preference out of the proceeds of the sale of the defendant corporation’s real estate in the hands of the receiver.