text:
    August L. Lacombe v. Hilda H. Headley and Harold W. Headley.
    [Decided August 30th, 1918.]
    A. tax collector’s deed given to a purchaser at a tax sale under the Tax Adjustment act (P. L. 1898 p. 442; 4 Comp. Stat. p. 5246) is not invalid as against a tona fiie purchaser from the prior owner without notice whose deed is first recorded, the tax collector’s deed not being within the purview of section 54 of the act concerning conveyances. 2 Comp. Stat. p. 1553.

    On bill, &C.

      Mr. W. Eugene Turton, for the complainant.

      Mr. Harold W. Headley, for the defendants.
   Lane, V. C.

This is a bill to quiet title. Complainant claims under a tax deed from the tax collector of Irvington, dated September 30th, 1909. A sale of the property for unpaid taxes was held on or about February 11th, 1909, under the provisions of an act entitled “An act concerning the settlement and collection of arrearages of unpaid taxes, etc., in towns, townships, boroughs and other municipalities,” etc. P. L. 1898 p. 442; 4 Comp. Stat. p. 5246. The deed was never recorded. The defendant Hilda H. Headley claims to be a bona fide purchaser for value, without notice, of the lands, and derives her title through a conveyance made by the heirs of the former owner subsequent to the tax sale. Her contention is that the deed from the tax collector is void as against her under the provisions of sections 21 and 54 of the act concerning conveyances. (2 Comp. Stat. pp. 1541 1553.)

The question is squarely presented whether the deed from the collector given in pursuance of the Tax Adjustment act is within the purview of section 54 of the Conveyance act. Section 21 is unquestionably broad enough to permit the record of a deed given by the collector, for that deed, under the provisions of the Adjustment act, is to be proved according to law. Section 54 provides—

“Every deed or instrument of the nature or description set forth in the twenty-first section of this act shall, until duly recorded or lodged for record in the said clerk’s office, be void and of no effect against subsequent judgment creditors without notice, and against all subsequent tona fide purchasers and mortgagees for valuable consideration, not having notice thereof, whose deed or mortgage shall have been first duly recorded.”

Fotwithstanding that a tax collector’s deed given under the Adjustment act seems to be within the express language of the statute, I have reached the conclusion that it is not within its purview. The act under which the sale took place provides for the adjustment of the tax by commissioners, confirmation of their report by the circuit court, the sale of lands by public advertisement. Each stage of the proceeding is conducted with the utmost publicity. Section 6 of the act (4 Comp. Stat. p. 5251) provides that after the sale the collector shall execute and deliver to the purchaser a certificate of sale. Section 7, that any person having an estate in or lien upon the lands may at any time up to the expiration of six months from the date of the certificate of sale redeem the lands. Section 8, that if the lands have not been redeemed within six months the collector of taxes, at the expiration of said six months, upon the surrender of the certificate, shall execute under the seal of the town * * * attested by the clerk of the said town and proved according to law, and deliver to the purchaser a deed or conveyance for said lands in fee-simple, absolute, free and discharged from any estate in or lien upon the same in favor of any person made a party to the proceedings. The deed is made presumptive evidence of title in the grantee. After the sale the purchaser becomes the equitable owner of the property, subject only to the right of any person interested to redeem within a period of six months. He is entitled to immedíate possession, 4 Comp. Stat. p. 5253 § 11. Upon the expiration of the six months’ period the right of redemption of the prior owner is cut off and the prior owner has no further interest in the property. During the time after the period of redemption has expired, and prior to the delivery of the deed where the naked legal title resides may be a question, but if the naked legal title continues to reside in the prior owner, it is such a title as that, by operation of law or proceedings taken- under the law, the owner has been deprived of the power to- convey or otherwise deal with. The only individual who has the power to execute a document which will evidence a transfer of title is the tax collector. When he executes a deed he does not do it in the name of the prior owner but under tire seal of the town. The rights of the prior owner are not cut off by the delivery of the deed but by the sale under the statute, plus the expiration of the period provided for redemption. There is no time provided in the statute within which a deed must be applied for and given. It has not been contended that if, after the sale and the expiration of the period of redemption but before the delivery of tire deed, the prior owner should execute a conveyance of the properly, such conveyance would be of any force or effect. How can the fact that the purchaser has received a deed which evidences his title and has withheld it from record enlarge the right of the prior owner ? It is, of course, true that if the prior owner had (no tax sale intervening) voluntarily conveyed, and a bona fide purchaser had intervened prior to record, tire first conveyance would be void as against the bona fide purchaser. But this is because, as to the bona fide purchaser, the act of the owner in divesting himself of title is considered nugatory and that the title resided in the prior owner at the time of the conveyance to the bona fide purchaser. Assuming that the deed of the tax collector be considered null and void, the proceedings antedating the delivery of the deed, to wit, the sale and the delivery of the tax certificate, are not affected. The right to convey the land does not revert to the prior owner. The tax collector might, I think, if the deed were lost, be obliged by mandamus to execute a new one. It has been so held in the case of a sheriff’s deed. MacMillan v. Edward, 75 N. C. 81.

In Glorieux v. Lighthipe, 88 N. J. Law 199, the court of errors and appeals in considering the language of section 53 (that provision of the act making record notice) — 2 Comp. Stat. p. 1652 —held that the words “subsequent purchasers” referred to subsequent purchasers of the same land. I think that the words in section 54, “subsequent purchasers,” must be confined to “subsequent purchasers” of the same land and of the same grantor, and that the grantor must, at the time of the making of the deed to the subsequent purchaser, have the right to make such conveyance assuming the prior unrecorded deed to be void.

A view opposite to that expressed by me has apparently been taken by the supreme court of Georgia in Maddox v. Arthur, 50 S. E. Rep. 668. The court said: “The purchaser at the tax sale, relatively to the rights of a subsequent purchaser at sheriff’s sale, stands in no better position than if he were a purchaser from the landowner; and if he fails to file his deed for redord until after one, without notice of his title, has purchased the property at a valid sheriff’s sale, and duly recorded the sheriff’s deed, he loses whatever title he may have acquired at the tax sale. For, as was said by Judge Lumpkin, in Ellis v. Smith, supra, in reference to a sheriff’s sale, the effect of a sale by the law in this respect is just the same as if made by the individual whose agent or trustee the officer becomes to make the transfer.”

Under the statutes of Georgia marshal’s sales for taxes are held under general executions.

Inasmuch as the matter is novel in this state (I cannot find any cases whatever bearing upon the subject), and as my conclusion is opposed to the text in 17 Cyc. tit. “Executions” 347, and several adjudicated cases, it seems necessary to make a more extended inquiry as to whether it is consistent with the purposes and history of the recording acts than would otherwise seem proper.

The justification for the legislative fiat that deeds not recorded should be void as against Iona fide subsequent purchasers for value is the assumption that if deeds are recorded careful purchasers will obtain notice by a search of the record. There is nothing in the Adjustment act which requires that there should be inserted in the deed given by the tax collector the name of the prior owner. If it were not for the use in some counties of the Luck index system a prospective purchaser, to obtain notice of tax collector’s deeds, would be obliged to examine every tax collector’s deed recorded, an intolerable burden. If record is to be of no substantial value, it is hard to imagine why it should be required, although it is quite apparent why it should be permitted for the purpose of perpetuating evidence and making a copy of the record evidential — this being the initial purpose of the registry acts. It was not until 1820 (section 10 of the act of 1820, Revision of 1821 p. 74-7) that an alphabetical index was provided for. Nix. Dig. tit. “Conveyance'” 144 §’ 21. It was not until then that sheriff’s deeds and deeds executed by other officers were referred to in anywise. That section provided

“that there should be indexed in ease the deed be made by a sheriff, the name of the sheriff, and the name of the defendant or defendants mentioned in the execution, and if by executor or administrator, the name of such executor or administrator and the testator or intestate; and if by attorney or attorneys, the name of such attorney or attorneys and his or their constituents; and if by commissioners under a law of this state, or appointed by order of any of the courts of this state, the name of such commissioners and the name of the person whose estate has been conveyed.”

Uo provision lias been made for an alphabetical index with respect to tax collectors’ deeds.

It was not until 1864, laws of 1864, page 498, that provision was made requiring that sheriff’s deeds should be executed in such manner as that they might be recorded. That section provided for the familiar affidavit as to the method of sale, and that upon the conveyance being approved by the court it might be recorded as if duly acknowledged, and further that such conveyance or the record thereof or a certified copy of the record should be evidence of a good and valid sale, and the conveyance of said land and real estate as if the same had been reported to and approved by the court in pursuance of whose decree, judgment, execution or order the same was made.

Upon sale, under execution (Pat. L. (1799) 371 § 12), the sheriff was directed to give a deed which should be

"as good and sufficient a deed or conveyance for the lands as the person against whom the said writ or writs of execution were issued might or could have made for the same at or before the time of rendering judgment against him or her; * * *.”

So with respect to auditors’ deeds. Pat. L. 300 § 23. So with respect to executors’ and administrators’ deeds on sale of lands to pay debts. Pat. L. 373 § 22. The law as it existed at the time of Nix. Dig. provided (page 851-, section 11) that upon the happening of certain contingencies the succeeding sheriff should

"sign, seal and deliver to the said purchaser * * * a deed * * *; which deed * * * shall have the same force and effect as if the sheriff who made the sale had signed, sealed and delivered a deed of conveyance for the same in due form of law.”

There was no requirement of acknowledgment.

The title of the act of 1861, referring to sheriff’s deeds, is “An act for the better security of titles to land sold by sheriffs and other officers.” It provides in its second section that the deed and the record thereof, or a certified copy of such record, shall be good and sufficient prima facie evidence of the truth of the recitals in the said deed or conveyance contained. It is significant that this is an, independent act and was passed for the purpose of perpetuating evidence. There is no intimation that at that time it was considered that there was any requirement that sheriffs’ deeds should be recorded.

Since it has been permissible to transmit title of real property by deed there has always been recognized a distinction between the formalities'which are necessary where the conveyance is made by the grantor voluntarily and where it is made by an officer of the law. See Kent's Com. 446, lecture 57 and notes (revised edition) by William M. Lacey, 1889, volume 1, page 472, notes.

The initial purpose of the recording statutes was to perpetuate documents and to make the records and copies thereof evidence. As early as the days of Queen Anne, chapter 19 of the 13th of Anne, Nevill, page 37, it was provided, section 7, that exemplification of deeds, &c., proved and certified in a certain manner, and any of the public books of records of the province should be received in evidence. In 1713 or 1714 an act was passed, section 1 of which provided that all deeds, conveyances and evidences of land should be acknowledged by the grantor, or proved before an officer designated. The act provided that the record should be evidence but did not provide a penalty for non-recording. Allis. L. 33. This act was annulled in 1721. It was re-enacted in substantially the same form and again annulled in 1731. AUis. L. 80. In 1743 (Allis. L. 182) an act was passed permitting deeds acknowledged or proved in a certain manner to be recorded, the record was made evidence, but there was no provision with respect to a penalty for failure to record. This provision was first introduced in the law, so far as I can ascertain, by the act of 1799. Pat. L. 399 § 8. It provided that

“every deed * * * shall be void and oí no effect against a bona fide purchaser or mortgagee, for a valuable consideration, not having notice thereof unless such deed * * * shall be acknowledged * * * and be lodged within six calendar months * * * to be recorded.”

The act also provided that the record should be evidence. The section with respect to acknowledgment and record is permissive only. The time to record was cut down to fifteen days by the act of 1820, Revision of 1821, page 747, section 1. The Revision of 1846 made no changes bearing upon the situation. Nix. Dig. tit. “Conveyance” H-l¡. §‘ 18. The Conveyance act was revised in 1874. Rev. 151. By section 13 it was provided that no deed unless acknowledged or proved according to law should be recorded. Section 14 provided that any deed not acknowledged, proved, recorded or lodged for record within fifteen days after its execution should be void as against subsequent purchasers. Section 33 provided for an alphabetical index. Subsequently, an act was passed omitting the provision for fifteen days. In 1898 the act was again revised. P. L. 1898 p. 670. Section 21 permitted the acknowledgment or proving and recording of all conveyances affecting lands. Section 53 provided for the effect of such record as notice. Section 54 provided for the effect of their non-record as against subsequent purchasers. Section 52 contained a provision that no deed or instrument unless acknowledged or proved and certified in the manner thereinabove directecl should be recorded. It will be at once observed that it might well be claimed that the effect of section 52 was to repeal by implication the provisions of the act of 1864, providing for the method of execution of sheriffs’ deeds. This was remedied by an act of 1904 (P. L. 1904 p. 70); section 52 was amended to except conveyances by a sheriff or other officer or auditors in attachment in pursuance of a decree, judgment or execution or order of a court which it Avas provided might be recorded as theretofore. Section 2 of the act of 1904 validated the record of conveyances made by sheriffs and other officers if they had been executed as in the thirteenth section of the act relative to sales of land under public statute {Rev. of 1874) provided for. The history of this legislation demonstrates that its original purpose Avas to perpetuate evidence. Hence, acknowledgment or proof and record were made permissive. The second purpose Avhicli Avas sought to be achieved was the protection of Iona fide purchasers for value without notice. Since Paterson’s laws the permissive and mandatory features of the act have existed side by side, but, in construing the act as it noAv reads, consideration must be given to its double purpose. It is inconceivable to me that from 1T99 and up until 1821 it should have been considered that sheriffs’ deeds and the like Avere Avithin the purview of the statute. There was no provision requiring that such deeds should be acknowledged so that they might be recorded, and to malee their record efficacious it would, as I have before indicated, necessitate an examination by a prospective purchaser of every sheriff’s deed. Hor do I think the fact that the legislature in 1820 provided for an alphabetical index and directed that so far as sheriffs’ deeds and those of certain enumerated officers Avere concerned, the names of the prior owners of the property should be indexed, enlarged the scope of the act. Sheriffs’ deeds, if acknoAvledged, might, • at the option of the holder, be recorded so that title deeds might be perpetuated. There was still no mandate requiring the sheriff to acknowledge. In the act permitting a deed to be giA'en by a succeeding sheriff, the words used are that he shall sign, seal and deliver. Hor do I think that the act of 1864 (P. L. 1864 p. 498), providing for the appro\ral of sheriffs’ deeds and the record thereof, enlarged the scope of the penalizing section of the recording act. Its purpose was merely to compel the sheriff to deliver a deed which might be recorded so that the purchaser might perpetuate his evidence of title. !Nor do I think that the change in the phraseology of the penalizing section, so that it now specifically refers to the instruments enumerated in section 21, has enlarged its scope so far as this particular phase of the subject is concerned.

The words used in Paterson’s laws could not be broader. They refer to every deed or conveyance of land, tenements or hereditaments. If a sheriff’s or tax collector’s deed were not within the purview of the section prior to the change in phraseology, I do not think that they are now. I have already pointed out that if it he held that tax collectors’ deeds he within the purview of the, act, then if a prospective purchaser sought to obtain actual notice of a tax collector’s deed, it would he necessary for him, so far as any provision of the act is concerned, to examine every tax collector’s deed that had ever been recorded in the county. It would also result in this, that although the purchaser is absolutely protected up to the time of obtaining his deed, yet the instant after he obtains it, the prior owner may sell to a bona fide purchaser for value, and if the bona fide purchaser for value reaches the court house first his right takes precedence.

Some of the states by legislation specifically require the recording of tax collectors’ and sheriffs’ deeds, and generally the acts give a certain length of time within which the instruments may ho recorded. Lindley v. Mays, 23 N. W. Rep. 660; 66 Iowa 265; Littlefield v. Prince (Supreme Judicial Court of Maine), 52 Atl. Rep. 1010; Humphrey v. Yost (Court of Appeals of Kansas), 62 Pac. Rep. 550; Sintes v. Barber, 78 Miss. 585; 20 So. Rep. 403; Scott v. Conrad (Court of Appeals of Colorado), 135 Pac. Rep. 135.

The court, in Pollard v. Cocke, 19 Ala. 188, held that marshals’ or sheriffs’ deeds were within the recording act. The court said : “But it is argued that there is no statute in this state requiring marshals’ or sheriffs’ deeds to be recorded. The statute is general and we see no reason for exempting them from its operation. They certainly fall as much within the mischief intended to he remedied as other absolute deeds for lands sold at public auction. Under statutes of other states requiring registration of deeds generally they have been held to be embraced. Massey v. Thompson, 2 Nott. & M. 104; Scribner’s Lessee v. Lockwood, 9 Ohio 184.”

An examination of the opinion in Scribner's Lessee v. Lockwood discloses that is not an authority for the position taken by the Alabama court. In the Ohio case it was held that where a person conveys land, which is afterwards taken in execution, sold, the sale confirmed and deed ordered, before the first deed is recorded, the purchaser at the sheriff’s sale is regarded a bona fide purchaser from the time of sale, and protected as such, though the first deed be recorded after the confirmation of sale, but before sheriff’s deed is made. The court said: “The plaintiff contends that inasmuch as his deed was,recorded before the execution and delivery of a deed by the sheriff, that the common principle of law, that notice received any time before the conveyance, as well as before the payment of the purchase-money, has a direct application, and that its effect is, to put aside the title of the defendant; and this would, undoubtedly, be true, as I before said, if the analogy between a sheriff’s deed and a deed from a private individual was perfect throughout. It is a very common error, where there is a general resemblance between two things, so as to subject them in some measure to one common law, to suppose that this law is of universal applicability, and that it furnishes the governing rule where the resemblance fails as well as where it is preserved. The various steps of the process through which a judicial sale is perfected, are something very different from what takes place in a private sale. * * * It is much more reasonable in the present instance to say that where a person has purchased at sheriff’s sale, has paid the whole consideration money, obtained a confirmation of the same, and an order for a deed, that these steps not only constitute so many acts of public notoriety, but that they also contribute so completely to identify the land and consummate the sale, that he whose title is perfect up to .this period, shall not be disturbed in consequence of the registry of another and before his own is actually delivered; that he is in truth a purchaser without notice and that the registry of the other deed before he receives his own conveyance would be a circumstance of the greatest importance if both deeds were private conveyances, is in reality of no moment in his ease.”

In Fernyhough v. Rockwell (Supreme Court of South Dakota), 139 N. W. Rep. 790, the court said: “Section 2216, Pol. code, throws additional light on this subject. It provides that when a tax deed is issued, the certificate of sale must be canceled and filed away. It is our opinion, therefore, that when the tax deed was issued, the tax sale became canceled. Until the sale, the treasurer’s duplicate tax list imparted notice of the unpaid tax. After the tax sale, the treasurer’s sale book, together with the annotation on tire subsequent tax list and tax receipts, imparted notice of the sale. When the tax deed, whether valid or void, was issued, the sale book no longer imparted notice of the sale, and there was no longer any duty on the treasurer’s part to note such sale on subsequent tax lists or tax receipts. The holder of the tax deed then stood in the same position as the holder of any other kind of deed, viz., in order to have surely protected his rights, he should have recorded his deed.”

There is no provision in our Adjustment act as to filing away the tax certificate, &c., as in the South Dakota statute. If the tax books are marked “paid” it is not, necessarily when the deed is delivered. It may be any time after the purchase price of the land is paid. If the records in the tax office can be considered as notice before the delivery of the deed, I can conceive of no good reason why they should not be so considered after delivery. The fact that in the instant case the books were not »so kept as to impart actual notice cannot alter the general rule.

1 have examined the cases cited as authority by the court in support of its conclusion and find none that fully support it, except, perhaps, Maddox v. Arthur (Supreme Court of Georgia), 50 S. E. Rep. 668. I have examined likewise all the cases which are cited in Cyc. as authority for its general statement of the rule, and there are none which I am willing to follow which sustain it in the broad terms in which it is stated.

In two earfy cases, two courts of equal repute, apparently took divergent views:

In Jackson, ex dem. Merrit v. Terry, 13 Johns. 471, in 1816 the supreme court of New York decided, under an act providing that all deeds or conveyances of, or concerning, or whereby any of the said lands may be anyway affected, in law or equity, shall lie recorded, and that every deed or conveyance of such land shall be adjudged fraudulent and void against any subsequent purchaser for valuable consideration, unless the same be recorded before the recording of the deed or conveyance under which such subsequent purchaser shall claim, that a sheriff’s deed must be recorded. The court considered that the object of the statute was to enable purchasers to ascertain the validity of title, and to determine whether they could purchase with safety, and that the law referred them to the record for this purpose, that if the sheriff’s sale is to defeat the purchaser, he would in vain seek for the evidence of the title. The court said: “Upon the whole, therefore, we think it will best comport with the reason and policy of the statute, as it certainly does with the letter, to extend it to sheriffs’ deeds as well as to others.”

In Houghton v. Bartholomew, 10 Metc. 138, the supreme judicial court of Massachusetts, in considering their statute of 1788, which provided that deeds not recorded should only avail, as between the grantor and his heirs, said: “Of all cases arising under the Registry law, that of a sheriff’s deed, upon a sale of an equity of redemption, would seem to be the last which requires a rigid construction of the Registry law. Ordinary deeds are, in a good degree, private conveyances, and the transactions may be entirely unknown beyond the grantor and grantee. A levy of execution on real estate by appraisement is comparatively a private transaction; no public notice being given; and the proceeding being such as may take place remote from the public eye. But not so in the case of an equity of redemption, on execution; by an officer. Such sale cannot take place unless there shall have been public notice, both by publishing in a newspaper and by posting up notices in public places; and the sale is at public auction. Such, indeed, were the circumstances of publicity attending such sales, that it had come to be doubted whether any registry was necessary of the deed from the sheriff to the purchaser of the equity. It was this very doubt that furnished the leading object for this new enactment, continued in Rev. Stat. ch. 73 § 38, requiring such deeds to be recorded in three months, and this with a view to the protection of a bona flfle purchaser. It was therefore made the subject of a positive enactment. The court cites with approval the rule laid clown by the supreme court of New York in Jackson v. West, 10 Johns. 466, that “courts are to construe the Registry act not so literally as to work injustice, but so liberally as to prevent the mischief and advance’the remedy.”

I think that the doubt expressed by the Massachusetts court indicates the true rule.

In Goodman v. Sanger (1879), 91 Pa. St. 71, the supreme court of Pennsylvania held that a deed made by a treasure to commissioners of a county for lands sold for taxes is not void as against a subsequent purchaser from the former owner of the land. The court approved Seechrist v. Baskin, 7 W. & S. 403, in which case it had been held that sheriffs’ deeds were not within the purview of the statute.

The court said, “Since the decision in Seechrist v. Baskin, the acts of 1846 (P. L. 1846 p. 124; P. L. 1849 p. 344) authorize deeds of sheriffs, treasurers and county commissioners to be recorded in the office of the recorder of deeds in the county where the lands .lie; and the records thereof, or duly-certified copies, shall be evidence where the original deeds would be. These acts appear to be solely for preservation of the deeds and making exemplifications evidence; they dispense with no’ proofs previously necessary to support the deeds. Eor is it their purpose to make the respective records notice of a sheriff’s sale, or of a. sale for taxes.”

The supreme court of appeals of West Virginia, in Wildell Lumber Co. v. Turk et al., 83 S. E. Rep. 83, held that their recording act applied to deeds made by court commissioners in the execution of decrees of sale of forfeited and delinquent lands, but it is significant that their Registry act required every deed, without exception, to be proved, acknowledged or certified according to law. Our registry acts do not, except in certain instances, require deeds to be acknowledged or proved, but merely permit them to be.

It is significant that, the two earlier acts which did not receive the assent of the crown (Allis. L. 33, 80) required acknowledgment, whereas the act passed in 1743 (Allis. L. 132), which received the royal assent, was in the permissive form.

I am convinced that it was not within the intent, of the legislature to vitiate unrecorded sheriffs’ and tax collectors’ deeds as against purchasers from former owners for value without notice; that until 1864 it was fully recognized that sheriffs’ deeds need not be acknowledged or proved so that they might be recorded.

There appears to be no case in this state in which the question has arisen. It may be that this is so because sheriffs’ deeds were so clearly within the wording of the statute that no one thought to raise the question, but it seems to me almost inconceivable that if sheriffs’ deeds were considered to be within the statute, a dispute should not have arisen during the long space of time that the registry acts have been in effect which would involve the rights of a holder of a sheriff’s deed and a Iona fide purchaser for value from a former owner.

It seems to me that if the legislature had intended that deeds of this nature should be within the purview of the statute, it would have, as most of the other states have, provided for a certain length of time in which such deeds might be recorded.

In the General Tax act of 1903 there is a distinct provision for the record of certificates of tax sales, &c. There is no such provision in the Tax Adjustment act.

The logical reasoning which underlies my conclusion that a tax collector’s deed is not within the purview of the fifty-fourth section of the statute, as I stated at the outset of this opinion, is, that even assuming it to be void, the prior owner still has no right to convey, his rights are cut off not by the delivery of the deed but by operation of law.

I will advise a. decree in accordance with this opinion. Settle decree on three days’ notice.


source: Caselaw Access Project

author: Lane, V. C.

license: Public Domain

text:
    Covert Cross v. The Printing Corporation (a Maryland corporation).
    [Decided August 31st, 1918.]
    1. A receiver of a foreign corporation, whether appointed under the statute or the general equity power of the court, may, in the right of creditors, attack a chattel mortgage for defects in recording.
    2. An affidavit annexed to a chattel mortgage reciting merely that the consideration is so much money is fatally defective and the mortgage is invalid as against a receiver of a foreign corporation.
    3. When goods are purchased by a corporation for its use and are delivered to it but paper title lodged for an instant in the name of an agent of the corporation who gives a chattel mortgage to the vendor, all with the knowledge of the vendor, the chattel mortgage is void as against the creditor of the corporation, the agent never having any present interest, actual or potential, in the goods.
    On bill, &c.

      Mr. Joseph Kraemer, for the complainant and receiver.

      Mr. George Porter (of the New York bar), for the estate of Daniel H. Tolman.

      Mr. Nathan Erlich, for Louis Moclell.

      Messrs. Hartshorne, Insley & Leake (Mr. John O. Mullen), for Conner Pendler & Company.
   Lane, V. C.

The question to be determined is the validity of two chattel mortgages, one purporting to be made by the Printing Corporation to Daniel H. Tolman, dated December 31st, 1917, to secure the sum of $1,200; the other purporting to be made by A. E. Sumner to Conner Fendler & Company, dated March 15th, 1918, to secure the sum of $570. The validity of the respective mortgages is challenged by the receiver of tire Printing Corporation as well as by Modell, a judgment creditor of A. E. Sumner and the Printing Corporation. The receiver was appointed under the statute. The corporation is a foreign corporation. I think that he was properly appointed under the statute (Atwater v. Baskerville, 88 N. J. Eq. 121, and Dolan v. Universal Fire Brick Co., 88 N. J. Eq. 138), and that lie may attack the chattel mortgage in the right of creditors. Graham v. Speilmann, 50 N. J. Eq. 120. Even if it be assumed that he was appointed under the general equity power of the court, I think he may attack the chattel mortgages upon the reasoning of Brockhurst v. Cox, 71 N. J. Eq. 703; affirmed, 72 N. J. Eq. 950.

I will deal with the Tolman mortgage first. The affidavit of consideration recites merely that the true consideration of the mortgage is the sum of $1,200. This is fatally defective, under the Chattel Mortgage act. 1 Comp. Stat. p. 463 § 4; Ehler v. Turner, 35 N. J. Eq. 68; Collerd v. Tully, 77 N. J. Eq. 439; affirmed, 78 N. J. Eq. 557. The chattel mortgage is therefore void against the receiver.

The claim of the Tolman estate will be allowed as a general claim for the amoiint actually advanced by Tolman to the corporation. The amount of the usury or bonus will be deducted, and for this reason. The loan was authorized at a meeting of the board of directors. The meeting was not properly called. One of the directors was not notified. While the corporation is liable, I think, for the amount of money actually received by it, and expended for its benefit, I do not think it is liable for the usury. Payment of the bonus would be justified only by express contract and there is no evidence from which I can find that Sumner was authorized either expressly or impliedly to make such a contract.

With respect to the claim of the Conner Fendler & Company, I find the facts to be that arrangements were made between a representative of Conner Fendler & Company and Sumner for the purchase of certain goods; that it was contemplated by both parties that the goods should be purchased by the corporation; that Conner Eendler & Company knew that the goods were to he installed in the plant of the corporation; that at the last minute the suggestion was made by the representative of Conner Eendler & Company that the goods should be sold in the name of Sumner and that Sumner should give the chattel mortgage. The chattel mortgage was dated March 15th, 1918, and was not recorded until April 15th, 1918. There is no doubt but that the chattel mortgage is invalid as against all creditors of Sumner who had claims existing at the time of the record of the chattel mortgage —April 15th, 1918. Roe v. Meding, 53 N. J. Eq. 350; Brockhurst v. Cox, supra; Wilkinson, Gaddis & Co. v. Bohlen, 88 N. J. Law 680. But with the creditors of Sumner I have no concern.

I find that although the goods were nominally purchased in the. name of Sumner, they were actually purchased with the knowledge of all parties by and for the corporation; that Sumner acted as the agent of the corporation at the time he purchased the goods and at the time he gave the chattel mortgage; that the chattel mortgage not being given in the name of the corporation is invalid as against its creditors. To permit parties to purchase goods and to have apparent legal title lodged for an instant of time in an agent, and have that agent give a chattel mortgage, which, upon being recorded, would be valid, as against creditors of the purchaser would open the door to fraud, and would in effect nullify the recording provisions of the Chattel Mortgage act. The goods sold never were the property of Sumner, but were from the time of purchase the property of the corporation. Sumner never had a present property either actual or potential in the things mortgaged. Looker v. Peckwell, 38 N. J. Law 253; Smithhurst v. Edmunds, 14 N. J. Eq. 408; Cumberland national Bank v. Baker, 57 N. J. Eq. 231.

The question as to the ownership of these goods as effecting the rights of Modell has also been submitted to me and the foregoing disposes of this feature of the case.

The claim of the Conner Eendler & Company will be allowed as a general claim against the assets of the corporation.

I will advise an order in accordance with foregoing conclusions. Settle order on three days’ notice.


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    Hulda A. Cole v. Obediah S. Cole.
    [Decided September 5th, 1918.]
    The court ruay in determining the custody of infant children after divorce award the custody to a stranger if circumstances of weight and importance connected with the welfare of child exist to overbear the strict legal rights of the parents.
    On petition, &c.

      Mr. John P. Manning, for the complainant.

      Mr. Charles M. Mason, for the defendant and cross-petitioner.
   Lane, V. C.

After I had determined that cross-petitioner was entitled to a decree for divorce on the ground of adultery, and had awarded the custody of the infant child, Winifred, to the father (complainant not appearing upon the hearing), application was made to open the proofs, and I heard further testimony bearing upon the permanent custody of the child. The child was brought before me as if upon habeas corpus, in aid of the exercise by this Gourt of its general jurisdiction as parens patries. The father lives with his mother, a widow of upwards of fifty years of age. The child, a girl of five, has been in the custody of an aunt, a. sister of the mother, for a considerable space of time. The mother desires that the child should remain with the aunt; the father that she should be given to him, so that she may be brought, up by his mother.

For reasons which I announced orally at the conclusion of the hearing, and which I will not reiterate, I reached the conclusion that the welfare of the child required that it should at this time be left with the aunt. The question was then raised as to the power of the court to award the custody of the child to the aunt, the father being anxious to taire it.

The statute provides that after a decree for divorce, the court may make such order touching the care> custody and maintenance of the children as the circumstances of the parties and the nature of the case shall render fit, reasonable and just. Section 25, Divorce act, 2 Comp. Stat. p. 2035. An act concerning infants, section 9 (2 Comp. Stat. p. 2810 § 21) provides that in making an order or decree relative to the custody of children, the rights of both parents in the absence of misconduct shall be held to be equal, and tire happiness and welfare of the children shall determine the custody or possession. In Richards v. Collins (1889), 45 N. J. Eq. 283, it was held that while the parents have the strict legal right, the court of chancery may in the exercise of its inherent jurisdiction permanently fix the status of infants, even in disregard of the strict legal rights of parents, where the welfare of the infants requires it.

This case is. important because many of the circumstances which induced the court to award the custody of the child to a stranger are present in the instant ease. Richards v. Collins has been uniformity cited with approval.

In the matter of Cunningham’s Case, 61 N. J. Eq. 454, Vice-Chancellor Stevens refused to award to the mother the custody of a sixteen-year-old child as against the House of the Good Shepherd, although that institution had no legal authority to hold the child. Vice-Chancellor Learning, in Kapcinski v. Richardson, 94 Atl. Rep. 32, after quoting from Richards v. Collins, supra, said: “It will thus be seen that a child cannot be lawfully regarded as a mere inanimate chattel which must be restored to the lawful owner in all circumstances. Like the parties, the child has rights, and the strict legal rights of the father as such can only be enforced in this court with proper regard of the best interest of the child.” Vice-Chancellor Stevenson (In re Flynn, 87 N. J. Eq. 413) quoted from Richards v. Collins (at p. 416).

The considerations which ought to influence the court are referred to in the cases above cited, and in Giffen v. Gascoigne, 60 N. J. Eq. 256, and Titus v. McGloskey, 67 N. J. Eq. 709. Giving all due consideration to the legal right of the parents, and to the rule that that right will he recognized, unless circumstances of weight and importance connected with the welfare of the child exist to overbear it, and that it is not sufficient that greater material benefits will be secured by the child in the custody of a stranger, I am still of the opinion that the custody of the child at this time should be committed to the aunt and will advise an order to that effect. I think that the fact that the mother desires the child left in the custody of the aunt, is entitled to some consideration. Vice-Chancellor Stevens declined to pass upon a similar question because not necessary in Cunningham's Case.

The order to be made will provide for the right of visitation by the father and the grandmother at certain intervals, for visits by the child to the father and grandmother, and will direct and enjoin all of the parties hereto, including the father, the grandmother, the aunt and the mother not to take, or permit to be taken, the child, out of the jurisdiction of this court without an order of this court first obtained. The order will be so drafted that a disobedience of it will constitute a crime committed within this state, so that any person guilty may be extradieted, and counsel drawing the order should have regard to the case of State v. Dudley, 89 N. J. Law 42, and to the form in which the statutes providing for the crime of desertion are drawn. If the record does not show that the aunt is a fornial party to tire proceedings it should be perfected. This may be done, if not already done, by the award of a writ of habeas corpus, directed to her, her return thereto, and traverse by the husband and a consolidation of the divorce case and of the habeas corpus proceedings for trial.

Settle decree and order on three days’ notice.

The order will also reserve the right to any party to apply for a modification at any time.

In case an appeal is taken, there is to be printed, as a part of this opinion, my oral conclusions after they have been sent to me' for correction.


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    William Watters and George Levisohn v. Mayor and Common Council of Bayonne et al.
    [Decided September 17th, 1918.]
    1. The legal sufficiency of a defence 'which under the old practice would have been presented by a plea and which would be tested by setting down the plea for hearing is now properly tested under rules 67, 68 and 75 by motion to strike out the answer filed in lieu of plea, or that portion of the answer raising the defence.
    2. The rule is established for this court that where the price to be paid by a municipality is so excessive as to shock the conscience, the court may properly interfere by injunction to save the municipality’s money from willful waste or fraudulent diversion. McKinley v. Freeholders of Union County, 29 N. J. Eq. 164; McCormick v. New Brunswick, 83 N. J. Eq. 1.

    3. The provisions of subdivision 3, section 2 of chapter 252 of the laws of 1916 (P. L. 1916 p. 525), as amended by chapter 240 of the laws of 1917 (P. L. 1917 p. 803), commonly known as the Pierson act, and which act is designed to provide for a uniform method of issuing bonds by municipalities and which subdivision provides that after twenty days.after the publication of the statement referred to in the act the ordinance or resolution shall be conclusively presumed to have been duly and regularly passed and to comply with the provisions of the act, or any other act, and that the validity of such ordinance or resolution should not be questioned except' in a suit commenced prior to the expiration of such twenty days, do not prevent a court of equity from, after the expiration of the twenty days, enjoining the municipality from using the proceeds of bonds in the manner contemplated by the provisions of its ordinance, nor from enjoining the issuance of the bonds, and answers filed in lieu of plea setting up the expiration of the twenty-day period will be stricken out as presenting no defence.
    4. The purpose of the provisions of the subdivision is to prevent an attack which will affect the validity of the bonds issued under the act, and such is not the effect of the proceedings referred to.
    On motion to strike out.

      Mr. Robert Carey, tor the complainants.

      Mr. James Benny and Mr. Gilbert Collins, for the defendants.
   Lane, V. C.

This is a motion to strike ont answers filed by defendants in lien of pleas.

Under the old practice the defence would be set up by pleaá and the pleas would be set down for hearing to test their legal sufficiency. Under the present practice the objection is made by motion to strike out. Rules 67, 68 and 75. The question is whether the answers, present a legal defence. The bill is filed upon the authority of McKinley v. Chosen Freeholders of Union County, 29 N. J. Eq. 164, and McCormick v. Mayor and Common Council of the City of New Brunswick, 83 N. J. Eq. 1, to enjoin the city of Bayonne from purchasing a water works system at a price alleged to be so excessive as to shock the conscience. In such a case the chancellor, in McCormick v. New Brwnswick, said that this court might properly inter-fere by injunction to save the city’s money from willful waste or fraudulent diversion. The answers set up that proceedings were taken by the city under the provisions of chapter 252 of the laws of 1916 (P. L. 1916 p. 525), as amended by chapter 240 of the laws of 1917 (P. L. 1917 p. 803), to raise moneys, through a bond issue, for the purchase of the water works and that all proceedings were in strict accordance with the act and that more than twenty days having elapsed after the publication of the statement signed by the clerk in accordance with the provisions of section 2 before the commencement of this suit, the complainant is barred under the provisions of section 2, subdivision 3, from questioning the validity of the ordinance or of any bonds issued in accordance therewith.

Fo bonds have actually been issued, nor do I think it would make any difference if they had been.

The purpose of the act, commonly called the Pierson act, is to provide for a uniform method of issuing bonds by municipalities. The purpose of subdivision 3 of section 2 is to prevent any action after the expiration of the twenty-day period which would cast a cloud upon the validity of the bonds. It is true that subdivision 3 forbids an attack upon the ordinance or resolution after the expiration of the period fixed, which ordinance or resolution, in the language of the subdivision, shall be conclusively presumed to have been duly and regularly passed and to comply with the provisions of this or an}r other act. The ordinance or resolution referred to, however, will be found by reference to the act to be an ordinance or resolution authorizing the issuance of bonds, not an ordinance or resolution authorizing the making of the improvement or whatnot for which the proceeds of the bonds are to be used. While the ordinance in the instant case authorizing the purchase of the water works was incorporated in the same document as the ordinance authorizing the issuance of bonds, there is in reality two distinct steps in the procedure.

My conclusion is that the provisions of subdivision 3, section 2, prevent only an attack upon the regularity and validity of so much of the ordinance as provides for the issuance of bonds. Assuming that the ordinance providing for the issuance of bonds has been regularly passed and is valid, and that any bonds issued under it would be valid obligations of the municipality, there is nothing I think which will prevent a court of equity from enjoining the city from using the proceeds of the bonds in such manner as will violate any equitable right of the inhabitants of the municipality. Nor do I think that, assuming the regularity and validity of the ordinance directing the issuance of bonds, and that the city has the power to issue the bonds, there is anything to prevent a court of equity from enjoining the municipality from exercising the power which it has derived through the passage of the ordinance in an unconscionable manner, and that therefore if the bonds have not yet been issued their issue may be restrained, notwithstanding that the period provided for in subdivision 3 of section 2 within which an attack must be made upon the ordinance has expired. By so holding, the rights of holders of bonds issued under the act will be fully protected and yet the court will not be precluded from preventing a fraudulent diversion of funds. In many cases the fraud may not be discovered or be discoverable until after the expiration of the short period fixed by the statute.

I will advise an order striking out the answers filed in lieu of pleas and giving defendants ten days within which to file answers on the merits.


author: Lane, V. C. (orally).

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    New Yorker Staats-Zeitung v. James Nolan, as mayor, &c.; of the township of North Bergen, Hudson county, et al.
    [Decided September 26th, 1918.]
    1. This court will, in a proper case, enjoin the officials of a township from enforcing a resolution passed by the township council forbidding the circulation of newspapers published in the German language.
    2. Where the enforcement of the resolution would cause damage to the complainant, the amount of which it would be impossible to fix or even estimate, this court will not relegate the complainant to his action at law.
    8. The passage of a resolution prohibiting the circulation of newspapers published in the German language, is not a proper exercise of the police power of a municipality.
    4. The passage of such a resolution cannot be justified as a war measure, especially where the newspapers are published and distributed under a permit authorized by an act of congress.
    On bill, &c.

      Mr. William E. Foster, for the complainant.

      Mr. George E. Cutley, for the respondents.
   Lane, V. C. (orally).

The application is for an injunction to restrain the officials of the township of North Bergen from enforcing the provisions of a resolution passed by the township' council forbidding the circulation of newspapers published by complainant in the German language.

The respondents insist, first, that this court has no jurisdiction ; that the remedy of complainant is by certiorari.

The effect of the enforcement of the resolution would be to suppress the circulation of the newspapers in the locality and will cause damage to complainant, the amount of which it will be impossible to fix or even estimate. The remedy at law for the damage done is clearly inadequate. Although the usual rule is that proceedings of municipal corporations should be reviewed by certiorari, this court has full and complete jurisdiction to prevent the municipality from acting under invalid proceedings where property rights will be destroyed and where the remedy at law for damages will be inadequate. In McCormick v. New Brunswick, 83 N. J. Eq. 1, and McKinley v. Freeholders of Union, 29 N. J. Eq. 164, it was held that this court might intervene to prevent a municipality from disposing of public moneys under ordinances or resolutions where the effect of such disposal would be a fraudulent diversion of funds. So, in a very recent case, Vice-Chancellor Griffin enj'oined the freeholders of Essex and of Hudson from interfering under resolution with the passage of the Lincoln highway by the Pennsylvania railroad.

My opinion is that the court has the same jurisdiction, to interfere as it would have were the officials of the township acting in concert without a resolution having been passed, and in such an instance, I cannot conceive that there could be any question but that the court might act. The opinion of Mr. Justice Young, in the supreme court of New York, Westchester county, has been brought to my attention. Suffice it to say, that I disagree with it, as did Mr. Justice Donnelly in the case of Star Company v. Brush et al., reported in the New York Law Journal of September 12th. Mr. Justice Giegerich succinctly, I think, stated the rule of law applicable in his opinion reported in the case of the Star Company v. Brush, 170 N. Y. Supp. 987.

Next, the respondents insist that the municipality had power to pass the resolution because of wdrat is called its police power. It is said that the circulation of the newspapers in the German language may lead to riot in the township, and that for that reason the township may, to prevent riot, forbid their circulation. I think to state the proposition is almost to demonstrate its absurdity. If the township' may prevent the circulation of a newspaper for no reason other than that some of its inhabitants may violently disagree with it, and resent its circulation by resorting to physical violence, there is no limit to what may be prohibited. The residence in the township of a person obnoxious to the vast majority of its inhabitants may be prevented. The carrying on of a perfectly legitimate business may be prevented because to stop it inhabitants objecting to it may resort to violence.

The duty of the township officials is to suppress the disorder and to punish those who are guilty of the illegal act, not to prevent the performance of the legal act.

There can be no justification for the passage of the resolution as a war measure. That is a matter to be dealt with by the national authorities and not by the local authorities. In the instant case, the national authorities have granted a permit to complainant to publish its newspapers in the German language. The government might have, under recent legislation, suppressed the publication entirely. It might have granted a permit which would require the submission of the articles to be published to. censorship. It might'have, as it did, grant a permit to publish whatever the publishers thought proper without censorship. The papers published carry at their head the words “Published and distributed under Permit No. 7, authorized by the Act of October 6th, 1917, on file at the Post Office, New York, New York, by order of the President, A. S. Burleson, Postmaster-General.” The government sends to the newspaper copy to he published. The government, undoubtedly, desires to reach a very large number of individuals of German extraction, who cannot understand English, through the medium of these newspapers so that they may be advised as to the purpose of this country in the present war, and so that they may be acquainted with the situation as it develops from day to day. There can be no question in my mind but that this is a wise thing to do. It is the only method of approach that can be at all efficacious. There are thousands of Germans in this country, many of them in North Bergen, who cannot understand English. Anything which will prevent the development of a national menace is justifiable. There is nothing more dangerous than a person left in ignorance of current events. We are confronted with a fact, not a theory. You cannot communicate with a person in a language he cannot understand.

The resolution in question, as appears from its context, was adopted at the request of the National Security League. . That league seems to have taken direct issue with the administration as to the advisability of the circulation of any newspapers in the German language.’

I am quite convinced that the reason actuating the passage of this resolution was not any real fear on the part of the municipal officers that there would be any disorder, but simply the request of the league, and a desire to go as far as they could in order to demonstrate their patriotism.

My view is that the resolution, far from being in line with the war purposes of the government, is directly opposed to them.

The restraint will be continued until final hearing.


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    Alfred J. Keppelmann et al., trustees, &c., v. Erich P. Keppelmann et al.
    [Decided September 26th, 1918.]
    1. In order to protect themselves as well as creditors of the estate, executors must require refunding bonds before paying shares to distributees.
    2. Under Trading with the Enemy act, and executive order of February 26th, 1918, the alien property custodian’s authority is over the property of and interests of alien enemies in property, and not in property in which they have an interest, so that custodian’s interest in the right of alien enemies to legacies is to receive such shares from the trustees upon giving the refunding bonds required of beneficiaries to protect creditors and executors, since they are not protected by section 7, subdivisions c, e.
    3. The authority of the president as commander-in-chief of the army cannot he extended by congressional action or otherwise over the civil population without the field of military operation to the taking of private property for public use without just compensation.

      4. The congressional assumption, as shown by Trading with the Enemy act, section 17, providing that federal courts may make orders and decrees necessary to enforce the act, is that the courts should determine what is or what is not enemy property.
    5. Powers of attorney for collection of money, executed prior to the existence of a state of war, rendering principals enemy aliens, may continue to be valid, notwithstanding the state of war, and notwithstanding the Trading with the Enemy act, and may .be exercised without violating the rules of public policy.
    O. Where it is obviously against the interests of the principal that the agency should continue, or where its continuance would impose some new obligation or burden, the assent of the principal to the continuance of the power after the war broke out will not be presumed, but must be proved, either by his subsequent ratification or in , some other manner.
    7. It is plainly against the interest of alien principals that their attorneys in fact give refunding bonds to executors of an estate and receive their legacies and turn the same over to the alien property custodian, so it will not be presumed that such principals desire the agency of their attorneys in fact to continue.
    8. That alien enemies have been made parties to a suit and served by publication and mailing under license of war trade board, and have interposed no defence by counsel as authorized by the Trading with Enemy act, is insufficient to constitute an election to continue powers of attorney to citizens to receive their legacies.
    9. It being to the interest of enemy alien principals that their attorneys in fact represent them in proceedings to determine accounting and distribution of their shares in an estate, consent to continuance of a pre-war power of attorney therefor will be presumed.
    30. Where legacies payable to alien enemy beneficiaries cannot be paid over to the alien property custodian, but must be held by executors as trustees awaiting disposition, the court may direct their investment in securities approved by such custodian.
    On bill, &C.

      Mr. Edward M. Colie and Mr. Runyon Colie, for the executors and trustees.

      Mr. Martin V. Bergen and Mr. Ruby R. Vale (of the Philadelphia har), for Schulz & Ruckgaber, holders of the powers of attorney.

      Mr. Charles L. Carrick and Mr. Mansfield, Ferry, for the alien property custodian.
   Lane, V. C.

Testator, after disposing of a portion of his estate, gave all the rest and residue to his executors in trust. The trustees were directed to divide the estate into parts. Upon making the division, the trustees were directed to pay over certain shares to those who are now alien enemies. The duty of the trustees with respect to the shares of the alien enemies is merely to pay over. The executors are prepared to make the payments. They were authorized to pay over in kind, and propose to do so. The shares are demanded by Schulz & Ruckgaber, citizens of this country, resident here, by virtue of powers of attorney executed by the alien .enemy beneficiaries prior to the war (which powers of attorney give the holders full power to rejDresent the alien enemy principals, to receive the shares and to execute and deliver proper refunding bonds), and by A. Mitchell Palmer, alien property custodian, by virtue of authority conferred upon him by the act “An act to define, regulate and punish trading with the enemy, and for other purposes,” October 6th, 1917, and by proclamations and orders made by the President in pursuance of such act. He states that he has no authority to execute refunding bonds, and, in any event, he declines to give them. I will say here that I will not pass upon the question as to whether in fact the alien property custodian can execute and deliver refunding bonds because of the attitude which he has taken, that, under no circumstances, will he give them. Schulz & Ruckgaber have the authority (if the powers of attorney be valid and exercisable) and are prepared to execute and deliver the refunding bonds. They admit that if the shares are turned over to them they hold them subject to the direction of the alien property custodian and must account, to him for them.

May the shares be turned over either to Schulz &'Ruckgaber or the alien property custodian without the execution and delivery of refunding bonds ?

By section 78 of the Orphans Court act (3 Comp. Stat. p. 3837), as amended by the laws of 1912,' chapter 180, every executor or administrator, on the .payment of any legacy or distributive Share to the person entitled to the same, is directed to take a refunding bond. The bond is for the benefit of any creditor who may sue thereon to recover the proportionate burden which the moneys paid to the distributee ought to bear to pay the debt, notwithstanding that the creditor may have been barred by a decree of limitation. If the share is paid, in the first instance, to a trustee, the executors are required to take from the trustee a refunding bond. The purpose of the amendment of 1912 was to permit a trustee^ to whom an initial payment had been made by the original executor, to escape responsibility upon a refunding bond given by him by taking from the ultimate distributee a refunding bond running to the original executor. So, in the instant case, before the executors could turn over to themselves as trustees, they must have given to themselves as executors refunding bonds executed by them as trustees. If they did not do so, they are liable as executors. To escape this responsibility, the statute permits them to take refunding bonds executed by the ultimate distributees to themselves as executors. It seems to me to be clear that the executors must exact, in order to protect themselves, refunding bonds, before the shares can be paid over.

The alien property custodian insists that the statute is inapplicable as to him. He takes the position that the Trading with the Enemy act is a war measure; that the president acts under it as commander-in-chief of the army; that the president’s determination that property is enemy property is final and conclusive, and that any property in which the president has determined that there is an enemy interest must be forthwith paid over to the alien property custodian; that the executors, in the instant ease, are required to pay over the shares to him without exacting refunding bonds. Without assuming to intimate an opinion as to the constitutionality of any legislation which would bear the construction contended for by the alien property custodian, I think a consideration of the act, and the proclamations and orders issued under it, will demonstrate that no such construction is possible. The act does not purport to require the turning over of property in which there is an enemy interest. Section 7c provides

“that any money or other property owing or belonging to or held for, by, on account of, or on behalf of, or for the benefit of an enemy or ally of enemy not holding a license granted by the president hereunder, which the president after investigation shall determine is so owing or so belongs or is so held, shall be conveyed, transferred, assigned, delivered or paid over to the alien property custodian.”

The executive order of February 26th, 1918, provides, inter alia:

“Sec. 2 (a) A demand for the conveyance, transfer, assignment, delivery and payment of the money or other property, unless expressly qualified or limited, shall be deemed to include every right, title, interest and estate of the enemy in and to the money or other property demanded, as well as every power and authority of the enemy thereover.”

The act deals with property of alien enemies and the interest of alien enemies in property, not with property in which alien enemies have an interest and the authority of the alien property custodian is over the property of, and interests of alien enemies in property, not in property in which alien enemies have an interest. In the case at bar, the right of the alien enemies in the shares in question is to receive those shares from the trustees upon the performance by them of a condition, to wit, the giving of refunding bonds. The alien enemies have beneficial but not legal rights in the shares. To those beneficial interests the alien property custodian succeeds, but he cannot convert the beneficial interest into legal estates and reduce the shares to his possession until the conditions, which the alien enemies must have performed, are performed, and until the trustees and the creditors of the estate are fully protected. The provisions of section 7, subdivision & of the Trading with the Enemy act, does not protect the trustees or the creditors of the estate. The right of the trustees is not in the property so that upon turning over the property they may resort to the remedies provided for in section 9. It is a right to have created a personal liability of the distributees upon which creditors may sue. No acquittance or discharge by the alien property custodian could acquit or discharge them of their duty toward creditors. Its uttermost effect would be to acquit and discharge as against those who had rights in the property itself. Assuming that the acquittance of the alien property custodian would operate to release the executors from all liability so that suit might not be brought against them by creditors of the estate, then the rights of creditors of the estate would be taken away, without compensation, and no substitute would be provided. I had always supposed that the constitutional interdiction against the taking of private property for public purposes without compensation or the providing of a method of compensation, is as effective in time of war as in time of peace and that the government may not take private property for war purposes without compensation, or without providing a means by which compensation may be made as in cases of eminent domain. In considering the English practice it is wise to keep in mind that the power of the English parliament is unlimited, whereas that of the American congress is circumscribed by a written constitution. I had never supposed that the authority of the president as commander-in-chief of the army “to commandeer” (if by that term is meant the taking of property without first having made compensation or providing a method of compensation) extended or could be extended by congressional action or otherwise over the civilian population without the field of military operation.

I express no opinion, because not necessary, as to the power of congress to deprive citizens of the United States of their ordinary legal remedies against alien property or with respect to their interests in alien property, or whether the provisions of section 9 give such an adequate remedy as to constitute due process of law. Whether certain property is or is not enemy property and the determination of rights and interests in property is usually a question to be determined by judicial authority; whether congress can, because of a state of war, confer upon the president authority to determine, as against the rights of citizens of this country, what is and what is not enemy property without tue declaration of martial law, is a question upon which no opinion ought to be expressed until the point is squarely raised.

There is a very clear distinction between the power to determine what is or is not an essential war industry and what is or is not enemy property. That congress assumed that it would be necessary to invoke the aid of the courts in reaching enemy property, and that the determination of the question as to what is or is not alien property may be a matter to be settled by the Judicial tribunals is, I think, indicated by the provisions of section 17 of the act by which full power and authority is given to the federal courts to make such orders or decrees as may be necessary to enforce the provisions of the act.

A different question would arise if the United States were the ultimate distributee, which would be the case if the government, as it might have (treaty rights not being considered^ had confiscated the property of alien enemies. "Whether or not refunding bonds, in such instance, would be required, is a question upon which I express no opinion. The government, however, has not confiscated the property. It has provided for the appointment of a custodian (making him a common law trastee) expressly reserving to itself the right to determine, at some future time, what shall ultimately be done with the property taken into his possession. It may be turned back to the alien enemies, in which event we would have a situation where the alien enemies would have received their distributive shares and, because of the existence of the war, have been absolved of the necessity of giving the refunding bonds required by our statute to protect creditors.

My construction of the provisions of the statute, and the orders of the president applicable to the facts in the case at bar, leads me to the conclusion that neither Congress or the President intended to confer upon the alien enemy custodian any higher power over the shares held by the trustees than the alien enemies themselves would have if a state of war did not exist.

T am of the opinion that the shares cannot be turned over to the alien property custodian without the execution and delivery of refunding bonds.

Are the powers held by the attorneys in fact valid and exercisable ?

I think it must be considered as settled by 'Judicial dicta that under the common law powers of attorney for the collection of moneys executed prior to the existence of a state of war continue to be valid, notwithstanding the state of war and that they may be exercised. United States v. Grossmayer, 9 Wall. 72; 19 L. Ed. 627; Montgomery v. United States, 15 Wall. 395; 21 L. Ed. 97; New York Life Insurance Co., v. Davis, 95 U. S. 425; 24 L. Ed. 453; Williams v. Paine, 169 U. S. 55; 42 L. Ed. 659.

If there is anything inconsistent to be gathered from any language used in Mutual Benefit Life Insurance Co. v. Hillyard, 37 N. J. Law 444, it must be considered to have been overruled by the later federal cases. The English court of appeals in chancery has held, in the case of Tingley v. Muller (1917), 2 Ch. 144, that a power executed before the war authorizing an agent to sell lands remained valid and might be exercised after the outbreak of the war, although the principal became an alien enemy. In that case the power was made irrevocable for a period of twelve months. It would seem clear, from a consideration of the cases above referred to, that there is no rule of public policy which is offended by recognizing the validity of such powers and the right of the attorneys in fact to' act under them.

Are the powers rendered invalid by our Trading with the Enemy act? The supreme court of the United States, in the cases above referred to, has held that, notwithstanding the broad language of the Eon-intercourse act in! effect during the Civil war, powers authorizing the performance of acts of greater extent than authorized by those under discussion might properly be exercised during war. The Trading with the Enemy act forbids, section 3,

“any person * * * to trade, or attempt to trade, either directly or indirectly, with, to or from, or for, or on account of, or on behalf of. or for the benefit of any other person, with knowledge or reasonable cause to believe that such other person is an enemy, or ally of enemy, or is conducting or taking part in such trade * *

The words “to trade” are defined in the act, among other things, to include: “a. Pay, satisfy, compromise or give security for the payment or satisfaction of any debt or obligation.” “d. Buy or sell, loan or extend credit, trade in, deal with, exchange, transmit, transfer, assign or otherwise dispose of, or receive any form of property.” -notwithstanding that the word “trade” has been defined to include the payment of a debt and the receipt of property, before the performance of the act becomes'illegal, it must be on behalf of or for the benefit of the alien enemy. The case in the English court of appeals, chancery division, therefore becomes a direct authority. That court held, four judges to one, that a payment to the holder of a power of a consideration and the conveyance of real property by the holder of a power in pursuance thereof, was not within the language of their Trading with the Enemy act and royal proclamations, forbidding the payment of money to or for the benefit of an enemy. It may be argued with great force that our Trading with the Enemy act was not intended to be any broader than the English act.

For reasons hereafter noted it will be unnecessary for me at this time to determine whether, without a license from the president, the holders of the powers may receive the shares in question. It will be observed that, in the one case in the supreme court of the United States (Williams v. Paine) in which powers (similar or broader than those at bar) have been held valid, the question arose after the war and the facts showed ratification by the principal or acts which resulted in an estoppel. The court stated the rule, Mr. Justice Peckham (at p. 73) : “Where it is obviously and plainly against the interests of the principal that the agency should continue, or where its continuance would impose some new obligation or burden, the assent of the principal to the continuance of the agency after the war broke out will not be presumed, but must be proved, either by his subsequent ratification or in some other manner. And, on the other hand, where it is the manifest interest of the principal that the agency constituted before the war should continue, the assent of the principal will be presumed. Or, if the agent continues to act as such, and his so acting is' subsequently ratified by the principal, then the acts are just as valid and binding on the principal as if no war had intervened.” In a case determined during the pendency of war, where intercourse with the principal is forbidden, the court must go to the length of holding that the presumption referred to by the supreme court is irrebuttable. It may be that the coftrt would go to that length, or rather would hold that, where it appears that the exercise of the power would be for the benefit of the alien enemy in a time of peace, he is estopped from asserting a revocation of the power because of an irrebuttable presumption that, if he revokes, it is because of the war and for the purpose of doing a detriment to this country which will not be tolerated where property rights in this country are the means employed to do the detriment.

But it seems to me that it is plainly against the interests of the principals that the agency in the instant ease, so far as giving refunding bonds is concerned, should continue. Its exercise would impose a new obligation or burden upon the principals. The exercise of the power requires the giving of refunding bonds. These bonds are personal obligations of the principals which may be sued upon in any jurisdiction. In return for the giving of these refunding bonds, for which in time of peace the principals would receive shares, they now get nothing. The shares go to the alien property custodian, and what will finally be done with them is a matter for congress to determine. Many contingencies -may arise which would cause the alien enemies to elect, rather than to give the refunding bonds, to disclaim any interest in the shares.

I cannot, therefore, presume that the principals desire that the agency, so far as the power to give refunding bonds is concerned, should continue.

It is no answer to say that the alien enemies have been made parties to this suit and have been served by publication and by mailing under a license of the war trade board and that they have interposed no defence to this action. Neither the bill nor the notice of publication sent to the enemy aliens set forth the situation in sufficient detail to call upon them to express an election as to whether the powers should continue to be exercisable or not.

Nor is it certain that if the alien enemies had desired to express an election they would have been able to communicate their election owing to the exigency of war.

Under the Trading with the Enemy act, it is expressly provided, section 7, subdivision b, that an alien enemy may defend by counsel any suit in equity or action at law which may be brought against him.

Steps should he at once taken by the holders of the power to ascertain the desire of the alien enemies as to whether or not the holders of the powers of attorney should execute refunding bonds on their behalf.

The foregoing disposes of the case at the present time. If it appears that the alien enemies desire that the powers of attorney should be executed, it will remain to be determined whether, assuming that the receipt of the shares by the holders of the powers is not forbidden by the Trading with the Enemy act (which is not decided), the court will, in disregard of the desire of the alien property custodian, direct the shares to be paid over to the holders of the powers. In this connection it must be kept in mind that the holders of the powers take the shares for the immediate benefit of the alien property custodian. He is entitled to them immediately upon receipt of them by the holders of the power. Ordinarily, the court would not, against the express desire of the principal, direct property to be transmitted to an agent. There may be exceptions to this rule. If it appeared that, for the protection of the trustees, it was necessary that they should get rid of these shares and the responsibility for them, and that .the person who was entitled to their immediate custody could not receive them directly, as I have already held he cannot, but might receive them through the intermediary of an agent, and that he refused to permit that agent to act, an interesting situation would arise.

My conclusion is that the shares cannot be paid over to the alien property custodian, nor at the present time to the holders of the powers, and I will advise a decree that the shares be held until there is a change in the situation. I will permit testimony to be taken to show the present desire of the alien enemies as to the present exercise of the powers.

So far as the powers authorize the holders to appear for the principals and represent the principals in the pending, proceedings, they are valid and exercisable. It is clearly to the interests of the alien enemies that they be represented at the passing of these accounts and the distribution of the estate. The alien enemies are, therefore, in this cause, not only by virtue of being brought in by publication, but by virtue of their representation by their attorneys in fact so far as to bind them as to proceedings on the accounting and distribution, as well as by their representation by the alien property custodian. The intimation by the representative of the alien property custodian (Mr. Perry) that the holders of the powers by making demand for the property and appearing in court have subjected themselves to the penalties provided for by the act is, I think, wholly without merit.

The English court of appeals in chancery, in Tingley v. Muller, supra, indicated that a proper way out of the difficulty, if a difficulty existed in that case, would be for the body equivalent to our war trade board to issue a license to the holders of the powers under which they might receive the moneys and upon receipt transmit them to the alien property custodian. A similar course may be pursued in this case and all difficulty will disappear.

SUPPLEMENTAL OPINION.

It is suggested in the brief of counsel for the alien-property custodian that one of the purposes of the Trading with the Enemy act, and the appointment of the alien property custodian, was to create a fund which might be used for the benefit of the United States, and that the effect of a decision, such as I have rendered, would be to defeat that purpose. In the instant case there can be no difficulty with respect to this. The trustees may be directed to convert the shares and invest the proceeds in such securities as under the act the alien property custodian has power to direct their investment in. In other words, the trustees may be directed to do with the shares whatever the alien property custodian can legally do with them. Whatever moneys have been paid into court have been directed by the order of the court to be invested in liberty bonds.


author: Lake, V. C.

text:
    Michael Silver v. Bernhard Gattel et al.
    [Decided September 28th, 1918.]
    1. In a suit to foreclose the equity of redemption of owners of lands sold under the provisions of the Tax act of 1903 (4 Comp. Stat. p. 5138 § 59), a defendant not known to be either dead or alive and his unknown heirs, devisees and personal representatives, may be brought in by publication in compliance with section 10 of the act concerning the court of chancery. 1 Comp. Stat. p. 413; Hill v. Henry, 66 N. J. Eq. 150, distinguished.
    2. Under section 10 of the act concerning the court of chancery (1 Comp. Stat. p. 413), and section 6, an act concerning mortgages (3 Comp. Stat. p. 3411), and sections 54 and 55 of the same act (3 Comp. Stat. pp. 3423, 3424), the decree properly goes against the named defendant not known to be either dead or alive and his unknown heirs, devisees and personal representatives, and the decree binds the named defendant, if he be alive, and his unknown heirs, devisees and personal representatives, if he be dead. Hill v. Henry, supra, considered.
    3. In a suit for specific performance, the fact that a bill to foreclose the equity of redemption of owners of lands sold under the Tax act, does not contain, in express terms, an averment as to the amount due complainant will not be considered, the decree in the foreclosure proceedings not being subject to collateral attack for this reason. River Realty Co. v. Blumenheim, 77 N. J. Eq. 291, distinguished.
    4. A final decree in foreclosure proceedings to foreclose the equity of redemption of owners of lands sold under the Tax act, cannot be collaterally attacked in a specific performance suit because it does not fix the amount due, and allow time for payment as is the practice in strict foreclosure.
    On bill, &C.

      Mr. Saul Cohn, for the complainant.

      Mr. Samuel Boessler, for the defendants.
   Lake, V. C.

This is a suit to compel specific performance of a contract for the purchase of land.

The question involved is the validity of complainant’s title. On December 30th, 1913, the lands were sold by the city of Newark under the provision of “An act for the assessment and collection of taxes,” approved April 8th, 1903. 4 Comp. Stat. p. 5132 § 51, &c. The purchaser was Julius Cinnamon, who bought the lands in fee-simple. On February 11th, 1914, Cinnamon assigned his interest in the certificate of sale to complainant, Michael Silver. On March 29th, 1917, complainant, being the holder of the certificates of sale, instituted proceedings in this court against Bernhard Gattel and Mrs. Bernhard Gattel and the unknown heirs, devisees and personal representatives of the said Bernhard Gattel and others to foreclose the equity of redemption under the provisions of section 59 of the act heretofore referred to. 4 Comp. Stat. pp. 5137, 5138. The result was a decree that “the right in, by or on behalf of the said defendants, and each and every of them, to redeem the lands and premises described above, of and from the sale aforesaid made by the comptroller of the city of Newark, New Jersey, on December 30th, 1913, in the manner and form alleged in the bill of complaint herein, and the right to redeem the aforesaid sale, is hereby foreclosed, and the said defendants stand absolutely debarred of and from all equity of redemption of, in and to said mortgaged premises, pursuant to the statute in such case made and provided.”

The legality of the proceedings against the unknown heirs, devisees and personal representatives of Bernhard Gattel is assailed upon the authority of Hill v. Henry, 66 N. J. Eq. 150. In that case Vice-Chancellor Stevens held that section 10 of the act concerning the court of chancery (1 Comp. Stat. p. 413 § 10) did not apply to suits under the act to quiet title. The only point actually determined in that case was that a proper construction of the act to quiet title indicated that section 10 of the Chancery act had no application. A suit to foreclose the equity of redemption under the Tax law is not a suit under the act to quiet title, nor does the reasoning of Vice-Chancellor Stevens, in Hill v. Henry, apply to it.

The chancellor, in Mitsch v. Owens, 89 Atl. Rep. 292, held that the act provided for a strict foreclosure.

Under the act concerning mortgages (3 Comp. Stat. pp. 3411, 3423, 3424 §§ 6, 54, 55) special provisions are made for the bringing in .of unknown parties and unknown heirs, devisees and personal representatives, which provisions are substantially the same as the provisions of section 10. There can be no doubt that either the provisions of section 10 of the act concerning the court of chancery or the provisions heretofore referred to of the Mortgage act apply to an action to foreclose a lien under the Tax act. The propriety of proceeding against a defendant not known to be either dead or alive and his unknown heirs, devisees and personal representatives in actions such as foreclosure can no longer be the subject of controversy in this state since the determination of the court of errors and appeals in Cona v. Henry Hudson Co., 86 N. J. Law 154. In that case the court of errors and appeals held that section 10 applied to partition. The court, speaking through the chancellor, said: “Every sovereign state has control over property within its borders. The conditions of the ownership of real estate in a given country, whether the owner be citizen or alien, resident or non-resident, are subject to the laws of that state concerning the holding and transfer thereof, and of establishing title thereto. Partition, including sale in lieu of actual partition of lands in New Jersey, is within the doctrine stated; and notice by publication, &c., to non-resident owners and persons believed to be dead, their heirs, devisees or personal representatives, under the provisions of the Chancery act, clothes our court of chancery with power to decree a partition or sale in lieu of partition, and malee good title thereto, whether by decree for actual partition or through a deed of conveyance made by a master in chancery in pursuance of a decree for sale.”

The court relied on United States v. Fox, 94 U. S. 315, 320; Arndt v. Griggs, 134 U. S. 316.

Foreclosure is so much a proceeding in rem as to render notice to'unknown heirs, devisees and personal representatives as a class due process of law. White v. Williams, 3 N. J. Eq. 376; Parker v. Hartt, 32 N. J. Eq. 225.

Unless this were so wherever a situation developed in which the owners of property were unknown there would be no method of settling title save only under some statute of limitations. There could be no enforcement of liens or partition until the expiration of the time fixed by the statute of limitations. This situation would not at all comport with the remarks of Mr. Justice Brewer in Arndt v. Griggs (at p. 320), quoted by the court of errors and appeals in the Cona Case. It is now settled that the legislature may constitutionally, in proceedings to quiet title, provide for notice to a defendant not known to be alive or dead and his unknown heirs, devisees and personal representatives. American Land Co. v. Zeiss, 219 U. S. 47; 55 L. Ed. 82.

I am unable to agree with the view expressed by the vice-chancellor, obiter, in Hill v. Henry, that taking the whole section— that is, section 10 together, the decree which the statute intends shall be made under it is a decree against heirs and devisees, and the name of the ancestor and devisor is brought in only for purposes of description or identification. It seems to me that this construction of the statute is against its express language, its clear purpose and certainly the established practice. Section 10 provides—

“That if the complainant is unable to ascertain whether a person having an interest in the property is still alive, or if he is known or believed to be dead, has been unable to ascertain the names or residences of his heirs, devisees or personal representatives, the action may proceed against such person by name and his heirs, devisees and personal representatives.” (Italics mine.)

Section 11:

“All such defendants and all persons falling within the description of heirs, devisees or personal representatives of the defendant, supposed to be dead as aforesaid, shall thereupon be bound.” (Italics mine.)

Section 54 of the act concerning mortgages (3 Comp. Stat. p. 3423) provides—

“That if the complainant is unable to ascertain whether the defendant be alive or dead, and that he has been unable to ascertain the names or residences of his heirs, devisees or personal representatives in case such person or persons are dead, such bill may be filed against and such action may proceed against suoh person or persons T>y name, and his heirs, devisees and personal representatives.” (Italics mine.)

and the snceeecling section (55) provides—

“That all sueh defendants and all persons falling within the description of ‘heirs, devisees or personal representatives’ of the defendant supposed to be dead as aforesaid, shall thereupon be bound.” (Italics mine.)

The purpose of the statute was to provide for two contingencies — first, where it was known that the party interested was dead and the names of his heirs, devisees and personal representatives were unknown, and second[ where it was uncertain whether the person interested was dead or alive, and if dead, the names of his heirs, devisees and personal representatives were unknown. In the latter event, it seems to me it was contemplated that the decree should go against both the named defendant and his heirs, devisees and personal representatives. If, in fact, the person interested were alive, he would be bound. If, in fact, he were dead, then his heirs, devisees and personal representatives would be bound. I am obliged to consider and determine this phase of the matter because the suit under consideration in the present case proceeded against the named defendant and his heirs, devisees and personal representatives and the decree went against the named defendant and the class. The proceeding and the decree is in strict accordance with the established practice so far as I have been able to ascertain.

The result is that unless some valid objection can be made to the regularity of the proceedings in the foreclosure case the defendant Bernhard Gattel and his heirs, devisees and personal representatives have been properly foreclosed of their right to redeem and the title is good.

Various objections are made to the regularity of the proceedings. It is asserted—

First. The bill of complaint fails to disclose that any sum is due at the time of filing the bill and reliance is placed upon the opinion of Vice-Chancellor Emery in River Realty Co. v. Blumenheim, 77 N. J. Eq. 291. In that case there was a demurrer and the vice-chancellor held that as against the demurrer the bill was bad for failure to contain the allegation referred to. I have examined the bill in the present case and I find that, although the allegation is not made in express terms, yet the fact that the amount paid -upon the certificate is still due may be fairly inferred. An account is prayed for. But whether the allegation is contained or not, the decree cannot be collaterally attacked upon any such ground. McCahill v. Equitable Life Assurance Society, 26 N. J. Eq. 531; Shultz v. Sanders, 38 N. J. Eq. 154; affirmed, 38 N. J. Eq. 293; sub nom. Eisberg v. Shultz; Dickinson v. City of Trenton, 33 N. J. Eq. 63; Banta v. Trustees, 39 N. J. Eq. 123.

Second. That the proceedings are not regular because the decree does not allow time for payment of the debt and redemption of the estate. And reliance is placed upon Clark v. Reyburn, 8 Wall. 318; 19 L. Ed. 354, in which case the supreme court of the United States held that a decree in strict foreclosure could not be sustained which did not find the amount due and which did not allow time for payment of the debt and the redemption of the estate and which was final and conclusive in the first instance. The final decree in the foreclosure proceedings sub judice is in the form in which the decree was made, following the opinion of the chancellor in Mitsch v. Owens, supra. Here, again, however, the respondents are met by the doctrine recognized in the case of McCahill v. Equitable Life Assurance Society, and cases heretofore cited.

Third. The last contention of the respondents is that the bill does not comply with the ninth section of the act concerning the court of chancery (1 Comp. Stat. p. 413), in that it does not appear by the affidavit of the complainant or his solicitor annexed to the bill of complaint and filed therewith that, notwithstanding due inquiry has been made therefor, the Christian name of Mrs. Gattel, a married woman, cannot be ascertained.

The point of this objection is that Mrs. Gattel, the wife of Bernhard Gattel, if alive, may have a right of dower in the premises in question; she is designated in the bill of complaint as Mrs. Bernhard Gattel. The bill itself contains an averment that the wife’s name is unknown to complainant, and that although the complainant has made diligent search he has been unable to ascertain whether the said Bernhard Gattel or his said wife is alive or dead, or whether he left surviving any heirs-at-law or next of kin. Section 9, heretofore referred to, provides—

“In any suit hereafter to be commenced in the court of chancery wherein it shall be thought necessary or proper to make any married woman a party, and it shall appear by the affidavit of the complainant, or his solicitor, annexed to the bill, and filed therewith, that, notwithstanding due inquiry has been made therefor, the Christian name of such married woman cannot be ascertained, it shall be lawful and sufficient to designate any such mai'ried woman by the name of her husband, with ‘Mrs.’ prefixed thereto.”

There is not annexed to the bill of complaint an affidavit specifically asserting that, notwithstanding due inquiry had been made therefor,' the Christian naine of Mrs. Bernhard Gattel could not be ascertained. There is, however, annexed to the bill an affidavit reciting in full the inquiries made by complainant in an attempt to secure information with respect to the Gattels, and it is not beyond the range of possibility that the court in considering this affidavit may have determined that it appeared therefrom that due inquiry had been made and that the name of Mrs. Gattel could not be ascertained. This being the situation, I think the doctrine of the McCalull Case applies. Whether, if there were no. affidavit whatever the respondent might, after process of subpoena had been issued and returned and thereafter an order of publication made and' proceedings perfected thereunder, have attacked the decree upon the ground that the statutory affidavit not being attached to the bill the court lacked jurisdiction, I do not determine. In the McCahill Case the court of errors and appeals refused to consider, at the instance of a purchaser under a foreclosure sale, whether there was any irregularity in the publication of the notice to non-residents of the pendency of the suit. In Dickinson v. City of Trenton, the chancellor refused to consider whether the solicitor who had acknowledged service of subpoena was authorized to do so and whétlier the ticket was in conformity with the provisions of the statute. In Shultz v. Sanders both Vice-Chancellor Van Fleet and the court of errors and appeals, in an action involving infants, refused to consider whether any proof had been taken of the amount due, notwithstanding the rule that a suitor who seeks relief against an infant must prove his whole case and that nothing can be taken as admitted against Mm either by default or by his answer by guardian ad Mem.

I will advise a decree directing specifite performance of the contract.