author: Per Curiam.

text:
    Hartford Accident and Indemnity Company, appellant, v. Simon Englander, respondent.
    [Decided September 30th, 1921.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Foster, who filed the following opinion:
    “Complainant in this action seeks to recover moneys paid to the defendant as compensation under the Emplojrers’ Liability act, for an injury which defendant sustained as a result of the negligent act of a third party.
    “The accident in which defendant was injured occurred on April 3d, 1919, while the defendant, an employe of the Fidelity Trust Company, was riding in an automobile of that company driven by another of its employes. The automobile of the trust-company was run into by an automobile owned by the Fisher-Sweeney Bronze Company, and defendant was severely injured and his leg was fractured.

      “Complainant was the insurer of the Fidelity Trust Company, and the trust company, under the provision of the statute, was found to be liable for a total compensation of $681.67, on account of which complainant has paid defendant $425 compensation and $38 hospital and medical expenses.
    “The Travellers Insurance Company was the insurer of the Fisher-Sweeney Bronze Company, against whom defendant brought suit for the damage caused by his injuries, and in February, 1920, this insurer settled the suit against the bronze company by the payment to defendant of $750. Thereupon complainant ceased its payment of compensation under tire statute and brought this action to recover the compensation, &c., amounting to $463, which it had paid defendant.
    “Complainant’s action is apparently based upon two theories— the first being that its investigator was not informed of or could not discover until February, 1920, the name of the third party responsible for the accident, and as defendant failed to furnish this information, it was unable to serve the notice required by the statute upon this third party. The evidence on this point is neither clear nor satisfactory, but this is immaterial, because it affirmatively and positively appears that within a few da}rs after the accident, Mr. Jacobus, the representative of the Fidelity Trust Company in charge of this matter, knew that it was the driver of the Fisher-Sweeney Bronze Company’s automobile who was responsible for causing the accident, and it does not appear whether the Fidelity Trust Company did or did not give the statutory notice.
    “The second theory of complainant’s case is that in some undisclosed way it is entitled to be subrogated to the rights of the defendant against the tort-feasor, the Fisher-Sweeney Bronze Company, and that this right of subrogation entitled it to the decree it seeks against defendant, regardless of the fact that it may have an entirely complete and adequate remedy at law against the defendant for money had and received by him on its account.
    “Admittedly, there is no privity of contract, or otherwise, between complainant and defendant, and while it may be that the Fidelity Trust Company, as employer, on giving the statutory notice, would under the provisions of the act be subrogated, to the amount of the compensation awarded, to the rights of the defendant against the third- party, the tort-feasor, I am unable to find anything in the act, or any principle of equity, in the absence of privity between the parties, that will sustain complainant's claim to subrogation, and I will therefore advise that the bill be dismissed.”

      Messrs. Hew, Boslwicle cG Bmdner, for the appellant.

      Mr. Simon Englander, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Foster.

For affirmance — Tins Chief-Justice, Swayze, Trenctiard, Parker, Bergen, Minturn, Kaltsci-i, Black, Katzenbacii, Heppeniieimer, Williams, Ackerson, Van Buskirk — 13.

For reversal — None.


source: Caselaw Access Project

license: Public Domain

text:
    Alice B. Mannex et al., appellants, v. Michael Regan et al., respondents.
    [Decided September 23d. 1921.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Griffin, who filed the following opinion:

      “The bill in this cause was filed to set aside alleged fraudulent conveyances. The complainants allege that ‘on the 16th day of October, 1911, and on the 5th day of March, Í913, and on the 6th day of March, 1913, and continuously thereafter until November 3d, 1913, Michael Regan, one of the defendants heroin, was indebted to the complainants for goods sold and delivered in the sum of $2,854.36, with interest from October 6th, 1911;’ that suit was instituted in the Hudson circuit court, and on November 3d, 1913, judgment was entered in favor of the complainants and against the defendants for damages and costs, $3,247.30. The bill then alleges the issuance of execution and the retura unsatisfied, &e.
    “The question whether the conveyances are fraudulent depends upon whether Hugh Murtagh, Ethel Regan, the daughter of the defendant, and Mrs. Regan, his wife, advanced the moneys, in Juljq 1910, to pay off the mortgage covering the premises in question given to one Adams. It appears that the defendants Michael' Regan and wife gave a mortgage to James Adams, dated May 9th, 1895, and registered the same day in the Hudson county register’s office for the sum of $2,000. In 1910, James Adams, being dead, his administrator, Martin Adams, threatened to foreclose the mortgage, and Mr. Regan being without funds and incapable of transacting business by reason of illness and other causes, his wife undertook to save the property. She applied to the New Jersey Title Guarantee and Trust Company for a loan of $2,000, there being then due on the mortgage that sum and about two years’ interest; and on January 27th, 1910, Regan and wife executed a mortgage to the title company for $2.000, which was recorded on the same day. No money was paid by the title company and the loan fell through, because Martin Adams asserted a claim that there was $2,000, with interest, from the date of the mortgage, due and owing, namely, that there was fifteen years’ interest due at six per cent., amounting to $1,800, making the total sum due of $3,800. In this situation Mrs. Regan borrowed about $1,700 from Hugh Murtagh, her cousin, one of the defendants, something under $300 from her daughter Ethel, and the balance she made up herself, amounting to $2,180, which was the sum which she conceded to be due and owing. These moneys she delivered to Charles D. Thompson, Esquire, a counselor-at-law of this state, to pay Adams the amount due on the mortgage and to make a tender. This Mr. Thompson did. The administrator refused the tender, and then accepted the money, giving a receipt therefor; but refused to deliver up the mortgage for cancellation. Afterwards a foreclosure suit was begun, in which a counter-claim was filed. The court, finding the contention of the defendants to be correct, dismissed the bill, and under the counter-claim directed that the mortgage be delivered up for cancellation. This decree was entered after the commencement of this suit.
    “Thus, it is quite plain that the moneys of Hugh Murtagh and Ethel and Mrs. Regan were used to discharge this mortgage; and these moneys were advanced prior to the 16th day of October, 1911, when the bill alleges the complainant’s indebtedness commenced.
    “About March 5th, 1913, Hugh was about to leave for the west and expressed a desire for security for his money, and on March 5th, 1913, Michael Regan and wife conveyed the premises in question to him by deed bearing date on that day and recorded March 7th, 1913. On the date of this conveyance there was due for principal and interest on this advance of $2,180 upwards of $2,500, a sum in excess of the apparent value of the property.
    “On March 6th, 1913, Hugh conveyed the premises to Margaret- Regan, wife of Michael, which deed was retained in the possession of Mr. Thompson until the 11th day of July, 1918, when it was recorded, and on July 10th, 1918, said Margaret, with Michael joining, conveyed to their daughter Ethel, by deed-dated July 10th, 1918, recorded July 11th, 1918. On July 11th, 1918, Ethel made a lease of the premises to one Albert H. Hopper, which was duly recorded. Thereafter complainants filed their bill.
    “Mrs. Regan was unaware of any indebtedness to Thomas F. Mannex in his lifetime until about July, 1913, about four months after the above deeds were given.- During that month some representative of Mr. Mannex called to see her husband about the claim and spoke to her concerning it, and said they would have to sue. Neither Ethel nor Murtagh knew anything of the indebtedness, and I think Murtagh did not learn of it, only in a general way a long time afterwards.
    “Murtagh was a nephew of Mrs. Eegan, a, young man in receipt of a large salary, and rather careless in. money matters. He was very fond of Mrs. Began and gave her money whenever she desired it, even since he advanced the $1,700. .The uncertainty in his testimony as to when and how he advanced these moneys cannot be attributed to an attempt to deceive, and' cannot be taken in any such sense, beca,use the plain fact is that' there was $2,180 placed in the hands of Mr. Thompson to cancel this mortgage, and it was used for the purpose, and this money came principally from Ethel, the present owner, and Hugh. The fact that the deed from Hugh to Mrs. Eegan was not recorded, I think, is reasonably clear: Hugh was going west; the deed was left with Mr. Thompson and placed in his safe, to be delivered to Mrs. Began upon her paying the balance due to Hugh. But it is quite plain that this was not done with any fraudulent intent, because at the time of the execution of the deed neither Hugh, Mrs. Eegan nor Ethel had any knowledge whatsoever of the existence of the indebtedness to Mr. Mannex; and the conveyance to Mr. Murtagh was considered at that time as absolute.
    “The evidence shows that about July, 1918, Hugh was paid the balance of his $1,700, which last payment consisted of about the sum of $300, which was advanced by Ethel. Ethel was a school teacher for a number of years, and had turned in practically all of her earnings to her mother, with gifts of money made to her by her aunt and uncle; and these moneys constituted the greater part of that which was used to pay Hugh. Shortly prior to July, 1918, in a discussion between Hugh and Mrs.-Began, Hugh suggested the idea that she deed the property to Ethel, and this was done.
    “During the course of the trial it was suggested to counsel that possibly these deeds should be treated as mortgages, and counsel for the defendants was willing to so treat them. As Ethel succeeds to the rights of Hugh and her mother, her-, claim under the mortgage would be $2,180, with interest at six per cent., from July 8th, 1910, together with the sums which she paid for taxes and other expenses necessarily incurred in the upkeep of the premises, from which should be deducted the rents or other income of the property from the date of the deed to her. I also find that the defence of the Adams foreclosure suit resulted in a saving of upwards of $1,800, and that counsel for the Regans are reasonably entitled to receive from either Hugh or Ethel $500, which should be allowed them as an addition to their mortgage, because they were compelled to defend, and this defence inured to the benefit not only of Hugh and Ethel but also of the complainants, if there is sufficient in the lairds to pay them after paying the sum found due on the deeds, treating them as mortgages.
    “In the foreclosure suit, the advisory master, on the equities of the case, decreed that the parties should pay their own costs, and thus the expense of the litigation was east upon Hugh and Ethel. The account, as made up by the parties, stands as follows:
    Amount <lue Ethel.......................... $2,ISO.00
    Interest from April Sth, 1910................. 1,320.80
    Taxes ....................................... 0S3.36
    Legal expenses ............................. 500.00
    Total ................................. $4,6S4.16
    Deduct rent received by Ethel................ 690.00
    Leaving a balance due to Ethel of............. $3,994.10
    “Turning to the value of the property: A witness for the complainants estimates the value of the property at $3,500; but taking his own figures and methods of calculation, the value is not $2,400. He says that inside lots áre worth $1,400 and corner lots are worth from twenty-five to thirty per cent. more. The premises in question do not consist of two lots, but of a lot thirty-one and eighteen one hundredths- on West Side avenue by one hundred feet deep. Therefore, assuming that the twenty-five feet by one hundred feet on the corner is worth thirty per cent, more than an inside lot [an inside lot being worth $1,400], and th'e thirty per cent, being $520, makes- the value of the corner lot $1,920. The value of the additional six feet, based on the value of the inside lots, would be a little more than one-fourth, or, say, $380, which, added to the $1,920, would make the value of the lot about $2,300. The value testified to bj' the defendants’ expert is $2,500. And these values were the same in 1913, when the deed was made to Murtagh.' Upon-this situation being ascertained, and finding that, even without allowing the counsel fee, the amount due to the defendant Ethel would largely exceed an3r possible value of the property, it was suggested to the counsel of the complainants that he might elect to sell the property at his own expense, and if the sum bid did not equal the amount due to Ethel, that the sale be not confirmed, and his bill dismissed; or that liis bill be now dismissed; and, if presently dismissed, in view of the fact that he was justified in bringing the suit by reason of the state of the record, that no costs would be allowed against him.
    “The defendant Ethel consented that another option be given to the complainants, namely, that if they so desired she would convey the property to them on pajmient of the amount due to her.
    “A decree will be advised in accordance with the foregoing Mews.”

      Mr. Frank G. Turner, for the appellants,

      Mr. David F. Edwards, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Griffin.

For affirmance — The CriiEE-JusTrcE, Swayze, Trenchard, Bergen, Minturn, Kalisci-i, Black, Katzenbaci-i, Heppenhbimer, Williams, Van Buskirk — 11.

For reversal — None.

For modification — Parker—1.


text:
    Charles F. Myers, appellant, v. Mildred J. Brown et al., respondents.
    [Decided October 7th, 1921.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, and reported in 9\2 N. J. Eq. 343.

      Messrs. Bourgeois .<£• Coulomb, for the appellant.

      Mr. Marlin V. Bergen, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court, below by Vice-Chancellor Backes.

For affirmance — Ti-ie Ci-iiee-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisci-i, Black, Katzbnbach, Heppeni-ieimer, Aokerson, Van Busktrk — 12.

For reversal — None.


text:
    Liberty Trust Company, appellant, v. Alfred P. Mayhew et al., respondents.
    [Decided October 7th, 1921.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Fielder, and reported in 92 N. J. Eq. 6W, sub nomine Liberty Trust Go. v. Haggerty.

      Messrs. McGcerter & English, for the appellant.

      Messrs. Lum, Tamblyn .& Golyer and ilir. David Boblcer, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Fielder.

For affirmance — The Chiee-Justice, Swayze, Trenohard, Parker, Bergen, Minturn, Kaltsci-i, Black, Katzenbach, •Van Buskiric — 10.

For reversal — None.


text:
    Liberty Trust Company, appellant, v. Nellie P. Ford et al., respondents.
    [Decided October 7th, 1921.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Fielder, who filed the following opinion:
    “The proofs show that the defendant Haggerty was conducting a sham importing business in the city of Newark, his real purpose being to obtain money from others, ostensibly for investment in his business, or on personal loans on his promise of repayment with interest at a high rate. Complainant is a trust company doing a banking business, with whom Haggerty kept a checking bank account. He induced a bookkeeper in complainant’s employ to so manipulate the books of the bank that checks drawn on the bank by Haggerty were honored and paid out of an apparent balance to Haggerty’s credit, when in fact he had insufficient funds to meet his checks. The first false bookkeeping entry in Haggerty’s account appears under date of July 24th, 1918, and not again until August 14th, 1918, from which latter date to, on or about December 9th, 1918, the false entries occur nearly every day, and by means of the conspiracy between Haggerty and the bookkeeper, the former succeeded in obtaining on his overdrafts a total of nearly $53,000 of the bank’s funds. The falsification of Haggerty’s account was accidentally discovered by one of 'the bank officials on December 9th, 1918, and Haggerty was arrested the following day. A petition in bankruptcy was filed against Haggerty on December 20th, 1918, and he was duly adjudged a bankrupt and a trustee in bankruptcy was appointed. The total amount realized on his assets was about $9,500, and upward of $150,000 in claims have been filed with his trustee.

      “The defendant Frank Ford entered Haggerty’s employ April loth, 1916, and remained with him until the time of his arrest. The defendant Nellie P. Ford is the mother of: Frank Ford. Through her son’s advice, and upon inducements held out by Haggerty, she made various loans to Haggerty on his promissory notes and received from him payments for interest at a rate as high as thirty per cent, per annum and also payments on account of principal.
    “This suit involves two checks drawn by Haggerty on complainant, to the order of Nellie P. Ford, given as payments on account of Mrs. Ford’s loans to Haggerty, one for $2,000, dated October 7th, 1918, and the other for $5,000 [which was certified by complainant at the payee’s request], dated December 3d, 1918, both of which were duly paid by complainant. It also involves a cheek drawn by Haggerty on complainant to the order of Frank Ford for $1,000, dated November 19th, 1918, which bears the payee’s endorsement only and was cashed’by complainant for him. It is claimed by complainant that the $1,000 check was a payment on account of a loan made by Frank Ford to Haggerty, but Ford insists that it was given and received on account of salary due him.
    “Complainant seeks to have the money received by said two defendants on said checks impressed with a trust in its favor, upon the theory that the checks were not received by the defendants as bona fiVIe holders for value, and that they were not effectual to pass title to defendants of money stolen by Haggerty from complainant. In the event that the defendants should not be required to accqunt for such money directly to complainant, the complainant and the trustee in bankruptcy contend that at the time of such payments Haggerty was insolvent and that the defendants had reasonable cause to believe he was insolvent ’and that they were bei3ig preferred and because the payments to said defendants were made within four months before the 'filing of the petition in bankruptcy, they must be repaid to the trustee. Complainant then insists that a trust on such funds should be declared in its favor, for the reasosi that tlie bankrupt’s estate should not be permitted to profit by the crime of the bankrupt.

      . “There seems to be no doubt that Haggerty was insolvent at the time he made the payments in question, but my conclusion from the evidence is.that the defendants were not aware of his insolvency and had nq reasonable cause to believe that they were being preferred as creditors, and, therefore, the payments made them are not voidable under the Federal Bankruptcy act. I am also satisfied that neither defendant had reason to believe'that Haggerty’s bank account was being falsified and that Haggerty’s chocks on complainant to their order were paid with money Haggerty was stealing from complainant. Haggerty’s checks came to the defendants on account of money due on Haggerty’s notes which evidenced his indebtedness to them, or, in the case of Frank Ford, for salary. On receiving tírese checks the defendants became bona fide holders for value. Oonvp. Slat. p. 8738 § 25. As the holders of these checks the payees had no legal right to exact payment on them from complainant, because they did not constitute a contract between complainant and the payees and complainant had the right to determine whether to pay them or not and whether to certify the $5,000 check to the order of Nellie P. Ford or not. Comp. Stent, p. S7‘56 § 1S9; Creveling v. Bloomsbury National BetnJc, J0 N. J. Law 255; National Banlc of New Jersey v. Berrall, 70 N. J. Lem 757. The certification of the $5,000 check was in effect payment thereof by complainant. Comp. Slat. p. 3756 §§ 188, 18®; Fidelity Trust Go. v. Balcer, €0 N. J. Fq. 170; Automobile Co. v. Banlc, 77 N. J. Lem \6d9; State v. Scarlett, 91 N. J. Law 200; In making its election whether to pay or not, complainant was bound to know the state of its account with Haggerty. The fact that his account appeared to be good when actually it was not is immaterial. Complainant placed its bookkeeper in a position where he had the opportunity to falsify the account and it must be held accountable for his acts as against innocent third parties who presented checks received by them in the ordinary course of business. Having exercised its option to pay or not to pay by honoring the checks, complainant cannot recover the money back from the payees. This is under the general rule that payment of a check by a banlc upon which it is drawn, under the mistaken belief that the maker of the check had sufficient funds to his credit to pay the check, is a finality, and the bank cannot recover from the payee of the check the amount so paid. One of three reasons, and sometimes all three reasons, have been assigned for the rule —-first, because there is no privity between the payee and the bank; second, because the bank always has the means of knowing the state of the depositor’s account by an examination of. its books, and, therefore, the pajunent is not a mistake within the meaning of the general rule which permits the recovery of money paid under- a mistake of fact, and third, because to permit the bank to repudiate the payment, would destroy the certainty that must pertain to commercial transactions of this sort and give way to the uncertainty, delay and annoyance which would result if the bank could at some future time call on the payee for the return of money paid him on a check. National Bank of New Jersey v. Berrall, supra; 23 L. R. A. (N. S.) 1092; S3 L. R. A. (iV. S.) 1028. So, -it has been held that the certification of a check by a bank upon the mistaken belief that the drawer had sufficient funds to his credit, when in fact the apparent credit was the result of the deposit of a forged check to the credit of the drawer’s account, will not excuse the bank from paying the certified check (Fidelity Trust Go. v. Baker, supra), and it has also been held that where a bank official having authority to certify checks, certified one for an amount which he knew to be in excess of the drawer’s account, the effect of the certification is payment, precisely as if the bank had paid the money on it instead of making a certificate of its being good and the bank is estopped from denying that it has sufficient funds with which to pay the check. State v. Scarlett, supra; 2 A. 1j. R. S6. And it is the rule that a person receiving stolen money in due course of business, in payment of a pre-existing debt, is a holder for value as against the former owner. Fidelity Trust Go. v. Baker, 60 N. J. Bq. T70,178; '25 L. R. A. (N. S.) '6.81; L. R. A. 1917 A, '70Jh 707.

    “Both checks given by Haggerty to the defendant Nellie P. Ford were deposited by her in her bank under a general endorsement and were paid by complainant to her bank. It might be argued that when Mrs. Ford deposited the checks in her bank the amount thereof was credited to her; that the money so credited was tiie money of her bank; that the transaction was in effect a sale of negotiable paper by Mrs. Ford to her bank; that the money complainant afterward paid was paid to Mrs. Ford’s bank and not to her, and that the right to recover money paid by mistake exists only as against the party to whom the payment was made. But this question of privity between the parties'to this action was not raised and has not been considered.

      “1 shall advise a decree that complainant’s bill be dismissed.”

      Messrs. McCarter & English, for the appellant.

      Messrs. Lintott, Kahrs & Young and Mr. David Bother, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below bjr Vice-Chancellor Fielder.

For affirmance — The Chibe-Justice, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisoi-i, Black, Katzenbaci-i, Van Buskirk — 10.

For reversal — None.


text:
    Frederick W. Triplett, appellant, v. Wilhelmina B. Ivins, respondent.
    [Decided September 30th, 1921.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, who filed ihe following opinion:

      “By the hill filed herein complainant seeks a decree of specific performance against his vendor of a written contract for the-sale of land with an abatement from the purchase price.
    “By the terms of the contract defendant engaged to convey to complainant an insurable title free from encumbrances. At the time the contract was made [January 13th, 1920)] both parties believed that defendant was the sole owner of the land. It has since been, ascertained that at that time defendant owned only a life estate in the land. The land was owned by one Steven W. Ivins, subject to>-the life estate of defendant. Shortly thereafter [January 30th, 1920] Steven AY. Ivins died leaving a will and codicil wherein he directed that all of his real estate and personal property should be sold by his executors, and further directed that after payment of certain bequests therein named out of the proceeds of sales the balance of the proceeds should be equally divided between defendant and two other persons therein named.
    “Accordingfy, at the death of Steven AY. Ivins^ defendant enjoyed not only a life estate in the land which she had contracted to sell but by the terms of the Ivins will she became entitled to receive from the executors of Ivins one-third of the distributable proceeds of sale of the reversion when such sale should be made by the executors.
    “The bill in this case was filed before a sale had been made by the executors and a lis pendens was at the same time filed; since then the executors of Ivins have made sale, pursuant to the directions contained in the Ivins will. Neither the executors nor the purchaser at the sale are made defendants herein.
    “It is thus apparent that the utmost that at this time can be transferred by defendant to complainant, either voluntarily or by decree, and either presently or as of the date the -bill and lis pendens were filed, is the life estate of defendant in the land, together with any right, interest or estate in one-third of the reversion, or its proceeds, which may have been acquired by defendant under the will of Steven AY. Ivins.
    “It should be here noted that defendant is not one of the heirs-at-law of Steven AY. Ivins; her sole interest in the Ivins estate is under the will referred to.

      “Touching the interest passing to defendant under the Ivins will-it is contended on behalf of complainant that the provisions of that will directing the sale of the real estate and the distribution of one-third of the proceeds to defendant are not operative to work an equitable conversion of the real estate, by reason of the intervening lights of complainant under the contract, and that defendant as the beneficiary under the will of one-third of the proceeds of sale of the reversion will be deemed the legal owner of the fee in the undivided one-third of the reversion of the real estate, subject to the power of sale in the executors. It is accordingly urged that defendant’s interest in the reversion under the will must be treated as real estate and not as personalty, and that, accordingly, specific performance of the contract of sale may be decreed for that one-third share.
    “It seems clear that this contention cannot prevail in this state. The general rule has long been recognized in this state that where land is directed to be converted into money by the executors and the proceeds distributed in a manner designated by the testator, such proceeds are to be i egarded as gifts of money to the distributees and not as devises of real estate. Scudder v. Vanarsdaile, 13 N. J. Eq. 109, 113j Fluke v. Fluke, 16 N. J. Eq. 178, ISO; Cook v. Cook, 20 N. J. Eq. 375, 377; Hand v. Morey, 28 N. J. Eq. 69, 65; Clark v. Denlon, SO N. J. Eq. 19; Brown v. Fidelity Trust Co. (New Jersey Chancery), 87 Atl. Rep. 222; Iseriberg v. Rose (Neta Jersey Chancery), &9 Atl. Rep. 016; Cranston v. Westendorf (Neta Jersey Chancery), 108 Atl. Rep. 776. And, in the circumstances stated, until the power of sale is exercised the legal estate descends to- and vests in the heirs-at-law oE the testator as tenants in common, such heirs talcing the legal title charged with the trust created by the will. Herbert v. Executor of Tuthill, 1 N. J. Eq. Ill, 1'1'7; Bergen v. Bennett, 1 Or. Cas. 1,16; S. C., 2 Am. Dec. '281, 286; Gest v. Flock, 2 N. J. Eq. 108,118; Berrien v. Berrien, 1 N. J. Eq. 37'; Current v. Current, It N. J. Eq. 186; Fluke v. Fluke, supra; Todd v. Wortman, 15 N. J. Eq. 723, 725; Morse v. Hackenmck Savings Bank, 17 N. J. Eq. \279; Bonnell v. Botmell, 17 N. J. Eq. 510, 511; Moores v. Moores, 11 N. J. Lorn 110; Hopping v. Grey (New Jersey Chancery), '89 Ail. Rep. 27.

      “As already stated, defendant was not an heir-at-law of the testator; her sole interest in the estate of testator was the right under the will to receive a proportionate share of the proceeds of sale of the real and personal estate of testator when such sales should be made, there being first deducted from such proceeds ■the debts and legacies paid therefrom, if any.
    “The rules above defined appear to be in strict accord with the English authorities upon the subject. In Wms. Ex. § 55-1 the rule is stated as follows: lit is an established doctrine in courts of .equity that things shall be considered as done which ought to have been done; and it is with reference to this principle that 'land is under some circumstances regarded as money and money as land. It was laid down by Sir Thomas Sewell, M. E., in Fletcher v. Ashbumer, :1 Ero. O. G. 497, “that nothing was better established than this principle, that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted; and this in whatever manner the direction is given, whether by will, by way of contract, marriage articles, settlement or otherwise, and whether the money is actually deposited or only covenanted to be paid,-whether tire land is actually conveyed or only agreed to be conveyed. The owner of the fund, or the contracting parties, may make land money or money land.55 It follows, therefore, that every person claiming property under an instrument directing its conversion must take it in the character which that instrument has impressed upon it; and its subsequent devolution and disposition will be governed by the rules applicable to that species of property.5
    “A succinct application of the rule is to be found in Elliott v. Fisher, If- Sim. 505. It is there pointed out that where the legal estate is not devised, but the executors or trustees are merely directed to sell and distribute the proceeds to children of the testator, the legal estate in fee necessarily- passes to the oldest son as heir and not to the distributees; and that the interest of one of the distributees, 'though devised by the distributee as leal estate, will pass to the executor of the distributee as personalty.
    “Tn the present case there was no devise by testator of the legal estate in fee; it accordingly passed to the heirs-at-law of testator, of whom defendant was not one, subject to the power of sale. It follows that the interest of defendant under the will of Steven W. Ivins must be treated as personalty, and, accordingly, cannot be reached by a decree of specific performance in the absence of special circumstances not here present.
    “In Comer v. Light {Ind.), !9'8 N. E. Rep. \&60, and on rehearing, 9L N. E. Rep. 325, it was held- that the directions of a will for sale of real estate and distribution of the proceeds to persons named constituted the distributees as such owners of the land in such manner that a judgment against a distributee entered before sale automaticalty became a lien on the distributee’s share, and that as against such intervening rights the doctrine of conversion would not be recognized. The views adopted in that case are clearly at variance with the established rales in this state. It seems clear that in this state the enforcement of such a judgment could onty be against the distributive share as personalty.
    “It follows that the largest measure of relief which can be afforded to complainant under a bill for specific performance is a decree for the conveyance of the life estate. The legal: estate in fee complainant can never enjoy under any decree this court can make herein.
    “Should complainant elect to take a conveyance of the life estate as of the date of the contract with an equitable abatement from the purchase price there appeal’s to be no doubt of his right to do so. Professor Pomeroy states this right to' be Too strongly fortified, as well as founded on reason, to be successfully denied.’ Pom, Con. {Spec. Per.) §§ J/,38, 1/.89, and notes. This right has been enforced, even though the interest which can be conveyed is but a small part of that contracted for, such as an undivided fractional share; and in Barnes v. Wood, L. R., 8 Eq. Cas. JpBJ±, a life estate of defendant was decreed to be conveyed under a contract in which defendant engaged to convey the property in fee.
    “A decree will be advised securing to complainant a life estate as of the date named. A reference may be had to a master to determine its value on the basis of the contract price as the value of an absolute estate in fee.”

      Mr. John T. Cleary, for the appellant.

      Mr. Lewis Starr, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Yice-Chancellor Learning.

For affirmance — The Ci-iiee-Justice, Swayze, Trenciiard, Parker, Bergen, Minturn, Iyalisch, Black, Katzenbaci-i, ITeeeenheimer, Williams, Gardner, Ackerson, Yan Bus-kirk — 14.

For reversal — None.


text:
    Central Railroad of New Jersey, respondent, v. City of Jersey City, appellant.
    [Decided October 14th, 1921.]
    On appeal from an order of the court of chancery advised by Yice-Chancellor Lewis, and reported in 92 N. J. Eq. 100.

      Messrs. Edwards & Smith, for the respondent.

      Mr. Charles M. Egan, for the appellant.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by 'Yice-Chancellor Lewis.

For affirmance — The Chief-Justice, Swayze, Teenci-iard, Parker, Bergen, Minturn, Ivaliscit, Black, Katzenbacii, Heppeni-ieimer, Williams, Gardner, Van Buskirk — 13.

For reversal — None.


text:
    Adolph Folkman, appellant, v. Charles R. Myers et al., respondents.
    [Decided September 30th, 1921.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, who filed the following' opinion:
    “1. I think it clear that the deed of conveyance of August 1st, 1877, from the Camden and Atlantic Land Company to Jacob H. Leedom, and the subsequent deed of conveyance of April 1st, 1890, from Jacob II. Leedom to Charles R. Myers, for a part of the land embraced in the prior conveyance vested in Myers the fee of a tract of land fronting fifty feet in width on the ocean with its westerly boundary line fifty feet easterly from and parallel to the easterly line of Missouri avenue, as that avenue .existed in the year 1869. That westerly line of the Myers tract is accurately shown on the map marked ‘D 13’ by a -black line between small circles which are made to represent two adjacent rows of piling; the easterly boundary line of the Myers tract is parallel to the line referred- to and fifty feet easterly thereof and is accurately shown on that map as the line of demaxkation between the yellow and green colors. This location of the easterly line of Missouri avenue as it existed in the year 1877 is shown on the map- referred to by a red dash line five feet easterly of the easterly line of that avenue as it exists at this time.

      “The facts upon, which this conclusion is based are the following :
    “Prior to 1809 -the Camden and Atlantic Land Company owned all the land between Missouri avenue and Arkansas avenue and Pacific avenue and tire ocean. By deed dated August 27th, 1869, and recorded in the clerk’s office of Atlantic county in Book 37 of Deeds, at page 97, that company conveyed to the Sea View Hotel Company a strip of land fifty feet in width adjacent to the easterly line of Missouri avenue and extending from Pacific avenue to the ocean. The description of the land as contained in that deed began ‘at the southeast corner of Pacific and Missouri avenues’ and ran thence easterly ‘along the southerly-side of Pacific avenue fifty feet’; thence on a line ‘parallel with Missouri avenue’ to the ocean; ‘thence on a westerly course along the ocean fifty feet to the easterly side of Missouri avenue; thence along the side of said avenue four hundred and forty feet, more or less, to the place of beginning.’
    “By deed dated August 1st, 1877, and recorded in Atlantic county clerk’s office in Book 68 of Deeds, at page 212, the Camden and Atlantic Land Company conveyed to Jacob H. Leedom a strip of land fifty feet in width easterly of and adjacent to the land last above described and extending- southerly to the ocean. The land so conveyed is specifically described in that deed as fifty feet in width and as adjacent to the line of the Sea View Hotel Company.
    “By deed dated September 20th, 1877, and recorded in Atlantic county clerk’s office in Book 69 of Deeds, at page 394, the Camden and Atlantic Land Company conveyed to David Doyle a strip of land fifty feet in width easterly of and adjacent to the land last described as having been conveyed to Leedom, and extending southerly to the ocean. The land so conveyed is specifically described in that deed as beginning ‘one hundred feet east-war dlv from Missouri avenue’ and running thence easterly parallel to Pacific avenue fifty feet, and thence southerly ‘on a line joa.rallel with Missouri avenue’ to the ocean; thence along the ocean ‘fifty feet to the line of land now of Jacob' H. Leeclom’; thence along said ‘Leedom’s line seven hundred feet, more or less, to the place of beginning.’

      “The testimony discloses that about the year 1884 the easterly line of Missouri avenue was moved westerly about five feet, and is now about that distance westerly of the point where it was at the time the three above conveyances by the Camden and Atlantic Land Company were made. It is, in consequence, now claimed by' complainant that in ascertaining the boundary lines between these three tracts the respective fifty feet measurements must be taken with reference to the easterly line of Missouri avenue, as that avenue is now located on the ground.
    “I am convinced that that contention cannot prevail. It does not apyiear that this change in the location of the easterly line of Missouri avenue was by either adequate legislative authority or judicial sanction, nor does it appear that the new location conformed more accurately than the old to its correct location a.s that location would have been ascertained from scientific data; but even though, its new location should be deemed to have been officially or authoritatively made or should be deemed to be the accurate location as ascertained by scientific data, that ascertainment or change would not have the effect of disturbing the boundary lines between the three tracts. The first conveyance can only be understood as having been made with reference to, Missouri avenue as it then existed on the ground; it, accordingly, conveyed to a point fifty feet easterly therefrom; the second conveyance tied to the westerly line of the first as its beginning point; the third tied both to the second conveyance and to Missouri avenue to define its location. The obvious intention and purpose of the three conveyances was to convey one hun-' dred and fifty feet easterly from a defined point, and that defined point was the easteidv side of Missouri avenue as that avenue then existed on the ground. Even the. subsequent ascertainment of error in the location of that avenue could not change the location of the land actually sold by the vendor and purchased by the vendees, providing the vendor had title to the land so sold. This view finds adequate support in Earing v. VanEouien, 22 N. J. Law !61, and Smith v. State, 2S N. J. Law ISO; S. 0., Ibid. 712.

    “The claim of title by defendant Myers, who now owns the Leedom title, must accordingly be confirmed as to the land marked with yellow on the map already referred to, irrespective of the alternative claim of Myers to title to it by adverse possession. That yellow strip is the easterly five feet of the land already referred to as having been conveyed to Leedom. The easterly boundary of that five feet strip marks the true boundary line between the Leedom and Doyle tracts.

      “2. I entertain the view that the claim of title of defendant Myers to land easterly of the boundary line above defined cannot be sustained. Myers’ assertion of title east of that boundary line is wholly based upon a claim of adverse possession.
    “Defendant Myers purchased the Leedom' tract by deed dated April 10th, 1890. No uncertainty can be said to exist touching the location of the land specifically described in that deed. The northerly boundary line is described in that deed as running easterly to ‘the line of David Doyle’s land,’ and that point is referred to in the description as one hundred feet easterly of Missouri avenue; the easterly boundary line is described as running ‘southwardly along the line of said Doyle’s land and parallel with Missouri avenue’; the southerly boundary line then runs westerly fift}r feet, and the. westerly boundary line then runs northerly parallel with Missouri avenue to a corner of land of W. A. and A. I. Lee. The Lees’ land here referred to is the tract hereinbefore referred to as having been conveyed by the Camden and Atlantic Land Company to the Sea Yiew Hotel Company.
    “The present claim of Myers is that prior to his purchase from Leedom the latter had enjoyed possession not only of the land covered by his deed but also of about eight feet of the Doyle tract easterly of the division boundary line of the two tracts, and that thereafter Myers enjoyed possession thereof for the remainder of the period necessary to perfect a title by adverse possession.
    “There is little evidence to disclose the nature "of Leedom’s possession of the land beyond the true boundary line other than the fact of physical possession by him; whether he held under Doyle or adversely to him must be measurably left to inference from the naked fact of physical possession. But the nature of the possession of Myers is fully disclosed by his testimony. He purchased from Leedom and took physical possession of what Leedom had occupied under the belief that his possession corresponded to his title. In that belief he was mistaken, since he occupied about eight feet' of Doyle’s laud adjacent to the boundary line clearly defined in both Ms and Doyle’s deeds; and that occupancy was with no intention on the part of Myers to occupy more laud than he had purchased.
    "That situation raises the question whether possession in such circumstances can be said to be adverse.
    "A great number of decisions are to be found in the several states touching the force to be given to possession by mistake. Although the decisions are in hopeless conflict nearly all may lie said to recognize in some form the necessity of an intent- to dis-seize to render the possession adverse. Some authorities adopt the view that the mistaken belief that one holds to his own line necessarily includes the intent to disseize; others hold that such a belief is inconsistent with any intent to disseize or to claim the land of another; still others hol'd that such a belief may appropriately be accompanied with an intent to claim the land only in case there is no mistake touching the true boundary and may also be appropriately accompanied with a-n intent to claim the land even if found to be the land of another; such cases seek to ascertain which intent in fact existed; a few cases held intent immaterial. Mr. Freeman, in his note in Am. St. Rep. 389, collects numerous authorities, and, touching the cases holding that possession by mistake of boundary is not adverse, says:
    “ ‘It appears to be a fair result of the decisions upon this side of the question to say that whenever a person proceeds, to take possession of a tract of land which has been conveyed to him, and in so doing he includes within his possession and subsequently holds a portion of the adiaeent tract, and it appears probable that his taking possession of the strip not belonging to him arose through his ignorance or mistake with respect to his boundary, then, that, though he believes and claims that all the land of which he, is possessed is his, and intends to exclude, all persons therefrom, yet that his possession is not adverse, as against the, owner of the strip of which he has taken possession, until the true boundary line is ascertained, and he for the first time has an opportunity of determining whether he will hold and adversely possess land which he knows noi to be included within -the boundaries of the conveyance under which his entry was originally made.’

      “In the same note Mr. Freeman suggests that decisions to the contrary do not seem to accord with the presumption usually indulged in respect to the holding of lands. He then proceeds:
    “ ‘The presumption to which we refer is one incorporated in many of the statutes of limitations, and which, we think, is generally implied, whether stated in direct terms or not, and is to the effect that possession is always presumed to be held in subordination to the legal title. By reason of this presumption, the mere holding of the lands of another, however long continued, is not' sufficient evidence of title by prescription, but must be aided by other testimony, from which the inference may reasonably be drawn that such possession was maintained in hostility to the title of the true owner. The presumption ought to apply with special force when it appears probable that possession of lands adjacent to a boundary line was taken througik ignorance or inadvertence, and mam- • tained without thought of disseizing the owner.’
    “Some additional cases are collected by the same writer in his note to 62 Am. Dec. (at p. 627), where he says:
    ‘The question whether a party can acquire a title by adverse possession to lands held by him by mistake frequently arises; and the rule is well settled that where the owner of lands, through ignorance, inadvertence or mistake, takes and holds possession beyond his true line, but with no intention of claiming further than his actual boundaries, such possession is not adverse and will not support a plea of the statute of limitations.’
    “But further reference to the views entertained in other states would, I think, be here inappropriate, in view of the decision of our supreme court in Myers v. Folhman, &9 N. J. Law S&iff. This court can only appropriately recognize the law as there defined. In that case defendant herein brought ejectment against complainant herein for the very land now under consideration. It appeared there, as here, that Myers took possession of part of the Doyle tract beyond the true boundary line in the mistaken belief that he had acquired title to 'it from Leedom, but with no intent to claim title to Doyle’s property. Possession with that intent was there held not to be adverse.
    “It is now urged on behalf of Myers that in this suit Myers has made it more clear that his intent was to claim title to and to hold possession as his own land against the whole world. The art of phrasing his testimony in that manner acids nothing when it is at the same time admitted by him that he had no intention to occupy more than he acquired by his purchase, or that he occupied the territory now in dispute in the belief that he had acquired title to it by his purchase. Indeed, it seems impossible to conceive the existence of an intention upon the part of a vendee to claim title by possession of land not covered by his deed when he has no knowledge or thought that his possession may embrace land not conveyed by his deed and has no- intention of encroaching on the rights of another; the belief that the land in possession is covered by the deed is inconsistent with the intent to claim title and to hold against the world, since the intent is to hold one’s own land; but the absence of an intent to- invade, and. the absence of knowledge- of the invasion of the rights of another, is inconsistent with a concurrent defined intent to hold in case it should be found that the possession is wrongful, because the alternative intent to hold in case it should be found that the holding is wrongful could not enter the mind unless or until some thought of possible error had occurred.

      “I will advise a decree quieting the title of complainant to that part of the land described in the bill which is easterly of the boundary line as herein defined.”

      Mr. Clarence L. Cole, for the appellant.

      Me-ssrs. Bourgeois & Coulomb, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Learning.

For affirmance — The Chief-Justice, Swayze, Trenoiiard, Parker, Bergen, Minturn, Kalisci-i, -Black, Katzenbaci-i, Heppenheimer, Williams, Gardner, Van Buskirk— 13.

For reversal — None.-


text:
    Adolph Folkman, appellant, v. Charles R. Myers et al., respondents.
    [Decided September 30th, 1921.]
    On appeal from a decree of the court of chancery advised hy Vice-Chancellor Learning, who filed the following opinion:
    “I am convinced that in the circumstances here present it would not he in harmony with the recognized rules to allow costs to be taxed by either party against the other. While tire statute makes costs in the circumstances here existing discretionary, that discretion appears to be almost, if not quite, uni formally exercised by a denial of costs when each party has succeeded in part in substantial issues. And tire denial of taxed costs necessarily includes the denial of any allowance as counsel fee. Evócese of Treiúon v. Tolnum (New Jersey Chancery), 7'0 Atl. Rep. SSI; S. C., '7If N. J. Eq. 70$. See, also, Farmer v. Ward, 15 N. J. Eq. 33, 38; Fielder v. Beehman (Neta 'Jersey Chancery), 5J Atl. Rep. 156.

    ‘T am unable to conclude that this case can be properly distinguished in principle on the question of costs from the many cases in which costs are denied. Complainant was fully justified in including in his bill to quiet title all the territory which was included, and defendant was equally privileged to defend as to all the territory so covered; but complainant was no more obliged to include the territory which defendant successfully defended than defendant was obliged to disclaim the territory which-he did not successfully defend, since both unsuccessful claims were, in nry judgment, substantial issues and made in good faith. To award complainant costs upon the theory that he more nearly succeeded a? to the territory which defendant successfully defended than did defendant as to the territory which he unsuccessfully defended would be obviously impracticable and wholly improper.

      “I have this clay and under this date advised the decree as prepared by complainant after eliminating the clause relating to costs and counsel fee and substituting therefor tire following clause: ‘No costs to he taxed by either party against the other/ ”

      Mr. Clarence L. Cole, for the appellant.

      Messrs. Bourgeois & Coulomb, for the respondents.
   Per Curiam.

'The decree appealed from will he affirmed, for the reasons stated in the opinion filed in the court below by ’Vice-Chancellor Learning.

For affirmance — Ti-ie Ci-iiee-Justioe, Swayze, Trenciiakd, Parker, Bergen, Minturn, Kaliscii, Black, Katzenbaci-i, Hgppeni-ieimer, Williams, Gardner, Van Buskirk — 13.

For reversal — None.


author: Pee Curiam.

text:
    Robert Jackson, petitioner-respondent, v. Cordelia Jackson, defendant-appellant.
    [Decided September 23d, 1921.]
    On appeal from a decree of the court of chancery advised by Advisoiyv Master Church, who filed the following opinion:
    “In this case it appears that petitioner1 and defendant were married in 1890; that three children were born of the marriage —Robert, twenty-nine; Alexander, twenty-six; Gladys, twenty-three. During the course of their married life Mrs. Jackson left her husband’s home seven times. She seems to have had no desire to live with her husband as a. wife and gave no reason for leaving except that she preferred to be independent. She refused to stay at home despite the entreaties of petitioner and her children. She stated that she would have nothing further to do with the petitioner. The case seems clearly one of desertion on the part of the defendant. The only question is, whether her final return to the house was a bona fide offer to live with her husband as ai wife should. It appears by the testimony that she offered to go home, but that she would like to go into business and would get some one to do the housework. She came home at night and her daughter informed her that her husband did not feel that 'that was tire proper way for her toi return — that she ‘should return and live as a wife of not come at all. Alexander Jackson, her son, says: ‘She told me she didn’t want to live home. She was living home because her lawyer told her to. This morning she said she had her .clothes in New York and had a room in New York. The only reason I am staying here is on advice from my lawyer.’ He further says: ‘She came in with a traveling bag and stayed all night * * * she was gone the next morning before I was out of bed.’
    “In my opinion this return to her home, considering the circumstances surrounding it, was not a genuine effort, nor did it evince a desire, on her part to live with her husband as a wife should, and that he was then justified, after seven previous desertions, in insisting- that she should either come and live with him as a wife or not come at all. I, therefore, think the allegations of the petitioner have been sustained, and I would respectfully advise a. decree in favor of the petitioner.”

      Messrs. Howe & Davis, for the appellant.

      Messrs. E. A. & W. A. Schilling, for the respondent.
   Pee Curiam.

The decree appealed from will "be affirmed, for the reasons stated in the opinion filed in the court below by Advisory Master Church.

For affirmance — Ti-ie Ci-iiee-Justice, Trenci-iard, Minturn, Black, ILírrenheimer, Williams, Gardner, Aokerson, Van Buskirk — 9.

For reversal — Swayze, Parker, Bergen — 3.


text:
    William B. Loudenslager, respondent, v. Pacific Improvement Company, appellant.
    [Decided October 14th, 1921.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, who filed the following opinion:

      “1 am satisfied that the several motions made herein to strike the bill from the files must be denied.
    “On these motions counsel for defendants have measurably overlooked the requirement that the averments of the bill can alone be considered and that all such averments must be accepted as true.
    “The restrictive covenants here in question provide that private dwellings only shall be built on the lots referred to in the bill, and that no portion of any building shall be erected on the lots within three feet of the rear dividing line of any lot, nor, except porches and steps, within eighteen feet of the front property line. Under the averments of the bill the building of defendants must be understood to be a hotel and the iron balconies described in the bill must be understood to be a part of the hotel building. These balconies, while not resting on the lots, extend over them; to that extent the lots are utilized for the hotel building. The balconies are also erected over the three feet adjacent to the rear line of the lots, whereas the covenant restricts that territory unless the words Tear dividing line’ should be understood as referring only to rear lines which divide restricted lots. I am unable to discern any difference between building parts of a hotel on and extending parts of a hotel building over a tract of land on which a hotel cannot be built; nor am I able to discern, except in degree, any difference between extending parts of a hotel over land on which a hotel cannot be built ten inches and ten feet. Nor am I able to now determine that the ten-feet-high stone wall which the bill describes as running from the easterly side of the building to Stenton Place is not violative of the covenant contemplating that m> building shall be erected nearer than eighteen feet from Stenton Place, that covenant specifically excepting only open porches or front verandas of buildings, which porches are permitted to extend not nearer than eight feet from Stenton Place, and steps or approaches from Stenton Place to porches or buildings, which steps or approaches shall be, like porches, free from lateral obstructions to view.
    “Nor does the bill on ita face disclose any unreasonable delay or inactivity on the part of complainant since knowledge of the alleged violations of the restrictive covenants came to him which has been in the slightest degree detrimental to any of the defendants. It is no part of the duty of a person who as purchaser of a lot has become entitled to enforce restrictive Covenants to busy himself with the inspection of building plans filed with municipal authorities or to watch the progress of building operations in the anticipation that' some one is planning to violate such covenants. When knowledge of proposed violations does in fact come to him it is his duty to act at once because, and only because, his failure to do so may occasion loss to others. If a building has been completed before complainant has ascertained that restrictive covenants have been transgressed, no sound reason can impose upon him the duty of immediate action; unreasonable delay on his part may then amount to laches, but the necessity of immediate activit}r to save defendants’ loss does not then exist. The bill filed herein does not disclose knowledge on the part of complainant of defendants’ purpose to violate restrictive covenants or any knowledge that restrictive covenants had been violated until after the structures referred to in the bill had been fully completed. No unreasonable inactivity to defendants’ detriment since that time is disclosed by the bill.

      “I will advise an order denying the several motions to dismiss the bill.”

      Mr. Norman Grey, for the respondent.

      Messrs. Bourgeois & Coulomb, for the appellant.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Learning.

For affirmance — The Chief-Justice, Swayze, Trenoi-iard, Parker, Bergen, Minturn, Kalisoh, Black, Katzenbaci-i, Heppeñheimer, Williams, Gardner, Van Buskirk — 13.

Bor reversal — None.


text:
    William Claude Messick v. Carolyn Messick.
    [Decided November 14th, 1921.]
    On appeal from a decree in chancery advised by Advisory' Master Grey.

      Mr. Floyd H. Bradley, for the appellant.

      Mr. Rex A. Donnelly, fox the respondent.
   Per Curiam.

This is an action for divorce; the husband having filed the petition. -In it he charges his wife with adultery committed at various times and places with one Alvin Low. He also charged her with a like offence committed with one Herbert Jackson. The advisory, master, after hearing and considering the proofs offered on behalf of the petitioner and the defendant, reached the conclusion that the charges against the defendant with relation to each of these co-respondents had been satisfactorily proved. Reaching that conclusion, he advised a decree in favor of the petitioner, and from the decree entered in accordance with his advice the defendant has appealed.

• A careful reading of the testimony sent up' with this appeal satisfies us that the learned advisory master was entirely justified in his finding, so far as it relates to the charge of adultery committed with the co-respondent Herbert Jackson. We do not, however, concur with his conclusion that the evidence submi ttecl justifies a finding that the defendant had been guilty of sexual intercourse with the alleged co-respondent Low. The proofs •bearing upon that specific charge are not of the clear and convincing character required in a divorce proceeding.

The decree appealed from will be affirmed, upon the ground ,that the existence of the adulterous relations between the defendant‘and Herbert Jackson was satisfactorily proved.

For affirm anee — Ti-ie Chief-Justice, Swayze, Trenoi-iard, Parker, Bergen, Minturn, Ivalisci-i, Black, White, HepPENHE1MER, WILLIAMS, GARDNER, ACKERSON, VAN BüSKIRK —14.

For reversal — None.


text:
    Anna G. Pizzini, appellant, v. William B. Pizzini et al., respondents.
    [Decided September 23d, 1921.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 91 N. J. Eq. 10.

      Messrs. Bolte, Sooy & Gill, for the appellant.

      Messrs. Babcpclc & Champion, for the respondents.
   Per Curiam.

The decr'ee appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Learning.

For affirmance — The Chief-Justice, Swayze, Trenciiard, Parker, Bergen, Minturn, Kalisch, Black, Katzenbaoh, HEFrENI-IEIMER, WILLIAMS, GARDNER, VAN BUSKIRK-13.

For reversal — None.


text:
    F. R. Patch Manufacturing Company, respondent, v. William A. Gahagan Company et al., appellants.
    [Decided September 30th, 1921.]
    -On appeal from a decree of the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported in 98 N. J. Eq. 7-8.

      Mr. Leon. Abbeit. fox the respondent.

      Mr. Robert Carey, for the appellants.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Griffin.

For affirmance — Ti-ie Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalis oil, Black, Katzenbach, Heppeni-ieimer, Williams, Gardner, Ackerson, Van Bus-kirk — 14.

For reversal — None.


text:
    Alfred R. Tooker et al., complainants, v. Rose Maple et al., defendants.
    [Decided October 14th, 1921.]
    On appeal from a decree of the court, of chancery advised by Vice-Chancellor Backes., and reported in!9B N. J. Eg. 3J+0.

    Appeal of Walter J. Vreeland et al.

      Messrs. Collins & Corbin, for the complainants.

      Messrs. Coult & Woodruff, Mr. Carl Saenger and Mr. William A. Lord, for the defendants.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Backes.

For affirmance — Trenci-iard, Parker, Bergen, Minturn, Black, Katzenbact-i, I-Ieppent-ieimer, Gardner — 8.

For reversal — Tiie Chief-Justice, Swayze, Kalisci-i, Williams, Van Buskirk — 5.


text:
    Alfred S. Brown, appellant, v. Emanuel Simandl, respondent.
    [Decided September 30th, 1921.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Fielder, and reported in 93 N. J. Eq. 119.

      Mr. Edward. S. Atwater, Jr., for the appellant.

      Mr. I-Iarold Simandl, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Fielder.

For affirmance — Ti-ie Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisot-i, Black, Katzenbach, Heppeni-ieimer, Williams, Gardner, Aokerson, Van Bus-kirk — 1-1.

For reversal — None.


text:
    West Jersey and Seashore Railroad Company, complainant-respondent, v. City of Millville, defendant-appellant.
    [Decided September 30th, 1921.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, who delivered the following opinion orally:
    “The statute provides that no crossing shall be built at grade over a railroad unless application is first made to the public utility commission for that purpose and leave granted by that commission, and the whole question appears to. be whether or not tbe duty now exists for the railroad company to apply to the public utility commission for leave to build this crossing — for they cannot do it without leave since the law forbids it — or whether, if the city desires the crossing built, it is the duty of the city to apply for leave to build it.
    “The theory on which I granted restraint was that there is presently an existing menace to the public that will continue until the public utility commission shall act in authorizing this crossing to be built. The city has made that menace bjr grading anti surfacing this street rq> to- the tracks. Up until this time I have not seen how there can he any doubt of it being the duty of the city to go a step further and procure from tbe state board the right to extend that highway across tbe tracks. By the highway I refer to a completed highway across the tracks; it is not completed at this time across the tracks. It may he a legal street lout it is not usable — it is not passable.
    “Now,'on the part of the city it is claimed that the railroad should apply to the public utility commission for permission to build this crossing. Why should it do so? The railroad company does not want it; it will have to have it if the public utility commissioners say it should be constructed. Now, I should like to hear anything further counsel can offer that suggests that the railroad is not entitled to protection against this existing menace until the city of Millville shall have taken the initiative before the public utility commission.
    “Mr. Miller — The onfy answer I can make is, it is an old street, not a new street.
    “The Vice-Chancellor — I do not think that makes any difference. The statute comes in at a later date and before the street has been constructed across the tracks and says this crossing shall not be built at grade without the consent of the board. My attention was called by Mr. Bacon, when I granted the restraint, to a decision by Vice-Chancellor Howell, in which he says that it is the duty of the one who wishes the crossing to apply to the board and not the one who does not wish it completed. The case before Vice-Chancellor Howell, as I now recall it, was practically identical with this case, so far as the salient features were concerned, it seems to me it was identical, and it is there held that the crossing cannot be constructed until a license is granted by tire board, and the municipality cannot impose upon the railroad the duty to apply for a license which it does not want granted.
    “Now, until that crossing is constructed it is a menace, that everybody agrees, and the restraint that was granted in my preliminary order was a restraint against the city interfering with the planting of certain posts that had heretofore been used to prevent accidents. Of course, it is immaterial, so far as this court is concerned, whether those posts are preserved as the barrier or whether some other barrier is constructed, but I think until the utility board acts the railroad company should be privileged to protect that place by some 'barrier or other, some suitable protection somewhere in front of the rails and on their own property — that is, in tire street in front of the property owned by the railroad company. Unless Mr. Miller can suggest something further to modify the views that I now entertain, I think the restraint ought to be granted.
    “Mr. Miller — I cannot think of anything moire.

      “The Vice-Chancellor — I have not asked Mr. Bacon to express his views because he expressed them to me very fully when he applied for the writ, and I think they were entirely sound.”

      Mr. Louis 11. Miller, for the appellant.

      Mr. Walter II. Bacon, for the respondent.
   Per Curiam.

The order appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Learning.

For affirmance — The Chiee-Justice, Swayze, Trenoiiard, Parker, Bergen, Minturn, Kalisci-i, Black, Katzenbaci-i, Heppenheimer, Williams, Van Buskirk — 12.

For reversal — None.


text:
    Rena Peddie Crosley et al., appellants, v. The Superb Realty Company, respondent.
    [Decided September 30th, 1921.]
    On appeal from a decree of the court, of chancery advised by Vice-Chancellor Fielder, who rendered the following opinion orally:
    “I feel in this case, the burden of the proof being on the complainants in case of mistake alleged between the parties, the burden must be sustained by clear and convincing evidence. I feel that the complainant has not sustained that burden of proof in tliis case, and that there is not sufficient in the testimony to justify me in reforming the instrument as prayed for by the complainants and I will therefore dismiss the bill.”

      Mr. Frank Benjamin., for the appellants.

      Mr. SelicJc Mendes, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Fielder.

For ajjb'mmce — Ti-ie Chief-Justice, Swayze, Trenckard, Parker, Bergen, Minturn, Kaltsci-i, Black, Katzenbaci-i, Williams, Gardner, Aokerson, Van Buskirk — 13.

For reversal — None.