text:
    In the matter of the estate of Nora Hanretty, deceased.
    [Decided June 27th, 1924.]
    On appeal from a decree of the prerogative court advised by Vice-Ordinary Fielder, who filed the following opinion:
    “Hora Hanretty died September 17th, 1922. Her will was admitted to probate September 28th, .1922, and letters testamentary were granted to her two sons John and Owen A. Hanretty, the executors therein named. The will directs the executors to sell the real propedy, 64-66 Littleton avenue, Hewark, and to divide the proceeds among her four sons, John, Joseph, William and Owen.
    “A petition was filed in the orphans court April 24th, 1923, by "Owen, individually and as é'xecutor, and by Joseph1 and William for the removal of John as executor, and after'a hearing a decree was entered May 31st, 1923, reciting that it appeared to the court that said John Hanretty, as such executor, was guilty of all the offenses (except embezzlement) mentioned in the statute hereinafter referred to and had thereby hindered and prevented the proper administration of said estate and ordering that the letters testamentary granted to him be revoked and that he be removed as executor.
    “The authority for such order must be found in chapter 268 of the laws of 1921, so much of which as is applicable, reads as follows:
    “ ‘If it shall he made to appear * * * that any executor * * * has embezzled, wasted or misapplied any part of the estate committed to his custody, or has abused the trust and confidence reposed in him, or if it shall be made to appear' * * * that any one of several executors * * * has failed, neglected or refused to properly perform his duties as such ex'ecutor * * * or has failed, neglected or refused to join with the other executors * * in the administration of the estate committed to their care and by such failure, neglect or refusal has hindered or prevented the proper administration or settlement of such estate, the said orphans court may revoke the letters of such executor * * * and remove such executor * * * from office.’
    “There is no testimony upon which the finding of the orphans court that the executor had wasted or misapplied part of the estate can be based, and the only question to be determined is whether the refusal of the executor, on or about April 19th, 1922, to execute with his co-executor a contract for the sale of the Littleton avenue property was an abuse of the trust and confidence reposed in him, or was a failure to properly perform his duties, whereby he hindered or prevented the proper administration or settlement of his estate.
    “Joseph, William and Owen had quarreled with their brother John over some part of the estate the day of their mother’s funeral and thereafter they were not on speaking terms. Tor several years prior to his mother’s death, John had occupied a floor in the Littleton avenue house as tenant, at $35 per month. Two1 days after the will was probated the three brothers signed and served á notice on John demanding that he pay rent at the rate of $75 per month, and on October 31st, 1922, they served him with a notice to quit the premises and surrender possession to Owen. On October 1st, 1922, the three brothers went to John’s home, and Owen as their spokesman, told John that the real estate should be sold as soon as possible;, and he asked John if he would like to buy the property. John agreed to a sale and expressed his desire to buy. Without further consultation-with John, Owen placed a Tor-sale’ sign on the property in December and interviewed prospective purchasers. Nothing further was done with reference to a sale until April 9th, 1923, when Joseph, William and Owen again called on John and informed him that Owen had a purchaser at $14,000. They asked John if he wanted the property and how much he was willing to pay. John offered $8,000, and the brothers then bid among themselves, John finally raising the bid to $13,000 and saying he would pay no more. Owen asked John whether the latter would sign a contract to sell at $14,000, and ¿John said he would. Without discussing the matter further with John, Owen obtained an offer of $14,500 from one Brady and had Brady give him his check for $500 on account and sign a contract to1 bu}r, and with his two other brothers he called on John, April 19th, 1923, and standing in the hallway of John home, demanded that John sign the contract. A discusión of a few minutes followed. John again expressed a, desire to1 buy the property and refused to sign the contract; whereupon the brothers left and two days later swore to the petition for John’s removal as executor.

      “I do not feel that these facts justified the orphans court in placing the stigma, of removal on John. The facts do not appear to me to show bad faith, or a lack of fidelity, on John’s part in the performance of his duty as, executor. Iiis duties under the will included not only the sale of the property in question, but the disposition and distribution of the balance of the estate. His mother desired that the two executors should administer her estate and she reposed confidence in John and by her will said that he should be one of her two executors. Her testamentary wish should not be nullified, by removing John, thus making Owen sole executor, unless it appears dearly that John was flagrantly derelict in his duties. Owen appears to have assumed sole charge of tire sale of the property; to have dealt with various prospective purchasers without consultation with John and to have ignored John’s rights as co-executor. The feeling of hostility between them kept them apart, and the treatment which all the brothers had accorded John quite naturally did not engender a friendly feeling toward them, or toward the sudden and peremptory demand presented by them that he forthwith sign the Brady contract. He wanted to buy the property, and while a sale to him, without leave of the court or without the consent of the heirs would have been invalid, the heirs had offered and were willing to consent to such sale and so stated at their last interview prior to April 19th, 1923. When they called on him, April 19th, 1923, and demanded that he sign the Brady contract, had they presented their request in a friendly spirit or shown a willingness to further discuss a sale to him at a sum greater than, or equal to, the Brad}^ offer, or had they thereafter called him to attend a conference with an attorney, or with some third person, as peace maker, their differences might have been adjusted satisfactorily. But they were unwilling, apparently, to give him an opportunity for consideration or reflection, because they instituted proceedings for his removal forthwith. The law gives an executor a reasonable time within which to settle his estate, and I do not'think that John’s refusal to accept an offer for and to join with his co-executor in the execution of a contract for the sale of the property within seven months after his appointment as executor, even if such refusal was based upon a desire to purchase the property for himself (when the heirs had expressed their willingness to sell to' him), can be said to have been an abuse of the trust and confidence reposed in him, or to have hindered or prevented the proper administration or settlement of his estate. There is nothing in the evidence to show the value of the property, except the inference which may be drawn from the fact that $11,500 was the best offer made for it up to that time and that none of the brothers had offered more than $13,000. Perhaps the property can be sold for a greater sum, and in case the sum offered by Brady cannot be again obtained from him, or from another, it may be that John wall be chargeable with, the difference between $14,500 and what the property does bring; but that is a matter for future consideration.
    “A decree will be advised reversing the decree of the orphans court.”

      Hr. Joseph II. Degnan, proctor for the appellant.

      Mr, John Trier, proctor for1 the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reason-stated in the opinion filed in the court below7' bvr Vice-Chancellor Ej elder, :

For affirmance—The Chibe-Justice, Trehchard, Musrturh, Black, Katzehbach, Campbell, Lloyd, White, Vast Buskirk, McGlenkoh—10.

For reversal—None.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Isaac M. Garfinkle, respondent-complainant, v. John T. Hickey, appellant-defendant.
    [Decided October 28th, 1924.]
    On appeal from a decree- of the court of chancery advised by Vice-Chancellor Ingerso-11.

      Mr. John G. Reed, for the appellant-defendant.

      Messrs. Harcourl & Steelman, for the ■ respondent-complainant.
   Per Curiam.

This is an appeal from a decree of foreclosure of a mortgage, the principal of which was “called,” in accordance with its terms, because of a default for thirty days in the payment of an installment of interest. The defense was that the defendant, who had purchased ihe property subject la the mortgage, did not know the date when the interest would fall due, and was misled in this respect by the action of the complainant (an assignee of the mortgage), who asked and received from defendant’s agent,' Mulock, the name and address to which bills for interest might be sent, and who then mailed a bill for the interest in question to a different name, although at the proper address.

This is not a sufficient defense. The- mortgage hv.as recorded, and the defendant, • besides being charged thereby with constructive notice of the interest maturity dátes thereunder, always had in it his power -to acquire actual knowledge of such dates by examining the record. Being, so far as the point here involved is concerned, in the position of a debtor, it was his duty to inform himself of these dates in order that he might pay the interest when it fell due, instead of relying upon what he thought was the probability of the creditor sending him a demand for payment.-.

This was the view taken by the learned vice-chancellor, and the decree is therefore affirmed.

For affirmance—The Chiee-Justice, Trehchard, Parker, MiHTDEasr, Kalisch, Bilack, Katzenbach, Lloyd, White, Gardner, Yah Btjskiek, Clark, McGlehuok. Kays—14.

For reversal—None.


text:
    Antonio Cerrato et al., respondents, v. Guiseppe Megaro et al., appellants.
    [Decided October 20th, 1924.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Foster, who filed the following opinion:
    “Complainant seeks a decree for the specific performance of a contract made by the defendant Megaro with him on April 10th, 1923, for the purchase of certain real estate in Newark. ' The defendant Pirone has intervened and in his counter-claim he asks that complainant be decreed to convey the property to him. •
    “In October,, 1922, Pirone purchased from complainant the business which was then being conducted in the premises in question, and at the same time obtained from complainant a lease for the premises for five years, from November 1st, 1922, with an option for its extension for three years longer.
    “The lease also contained the provision that Pirone would be given the first preference to purchase the property at any time before the expiration of the demised term of five years.
    “Some time later complainant undertook the sale of the property and offered it at different times to Pirone at prices ranging from $30,000 to $27,500, and Pirone refused to purchase it, stating he did not have the money to pay for it; that he would not be bothered with heating the apartment, and that in a year or two he was going back to Italy to live, thereupon complainant sold the property to the defendant Megaro; and they finally refused to take title, claiming they did not know of the option or preference to Pirone contained in his lease to purchase the property,, although they did know of the lease itself. This- excuse of defense cannot, of course, avail them, as they are chargeable with notice of all the lease contains. Furthermore, as Pirone was -in possession, inquiry by the Megaros upon him would have given them all the information upon the subject they desired. Hoy v. Bramhall, 19 N. J. Eq. 563; Vredenburgh v. Burnet, 31 N. J. Eq. 229. As a matter of fact, I find the evidence shows that the Megaros did not have notice of the option or preference granted, to Pirone by. the lease, and, as a matter of fact, I also find it clearly and convincingly established that Pirone was given the right to exercise this option or preference, and that he refused to. do so-, notwithstanding his insistment that he was never given the opportunity to exercise the option or preference at any price, and that he was never given the opportunity to exercise it at the price and on the terms and conditions on which the complainant has agreed to sell the property to the defendants Megaro-.
    “I have reached these conclusions on the facts1 without applying the well-settled rule of law, which holds that an option or preference such as.the one in question is an incomplete contract, because of the absence therefrom of the price and terms, and of any method by which these elements of the contract can be ascertained, is unenforceable in view of the statute of frauds.
    “Under the facts stated, and following a uniform line of cases' in this state and elsewhere, which are cited by Vice-Chancellor Backes. in the case of McClung Drug Co. v. City Realty and Investment Co., 91 N. J. Eq. 216, &c., it must be held that this so-called option or preference was not exercised by the defendant Pirone, and that it is unenforceable because of the-statute of frauds. Complainant is entitled to specific performance of the contract by the defendants- Me-r garó, and a decree will be advised to that effect, and that the counter-claim of Pirone be dismissed.”

      Mr. Algernon T. Siveeney and Mr. Anthony R. Finnelli, for the appellants.

      Mr. F. D. Man cuso and Mr. .Charles P. Gerrato, for the respondents.
   Per Curiam.

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

For affirmance—The Chiee-Justice, Tren chard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskirk, Clark, McGlennon, Kays—15. " ■

For reversal—None.


text:
    George W. Campbell, appellant, v. A. Aloysia Smullen, respondent.
    [Decided June 27th, 1924.]
    On appeal from a decree of the court of chancery advised by' Advisory Master Rosenberg, who filed the following opinion:
    “The bill of complaint is filed to' establish a will of Mary Frances Campbell, alleged to have been made and executed on the 1st day of March, 1915, and thereafter lost. The complainant is the, husband of the testatrix. He claims to be the sole legatee and devisee under that will and executor thereof. The defendants are the brother and two sisters of the decedent and the husband of one of the sisters.
    “The bill alleges further that the two sisters of the decedent, namely, Kathryn V. Burns and A. Aloysia Smullen, and William H. Smullen, husband of A. Aloysia Smullen, by deed dated the 3d day of March, 1921, and recorded'on the 8th clay of March, 1921, conveyed t® the complainant their interest in the lands and premises which were owned by the said testatrix at the time of her death. This allegation has in reality no relevancy to the questions raised by the bill itself.
    “The defendants have filed answers, the substance whereof is that they do not admit or deny the allegations of the bill of complaint, but state they have no information sufficient to form a belief and put the complainant upon strict proof.
    “The defendants A. Aloysia Smullen and Kathryn Y. Bums have filed a counter-claim in which they allege that the deeds which they made to the said complainant were obtained by fraud, and pray that they may be set aside.
    “(1) On or about the 1st of March, 1915, the complainant and his wife executed their wills, in which each devised to the other all his or her property, real or personal, and appointed the .other as executor of the will. It is sufficiently established to my satisfaction that these wills were drawn by Charles A. Burr, a lawyer in New York, and were duly executed in the presence of two witnesses, and that the same were executed and attested in entire accordance with the laws of this state.
    “During the summer of 1919 Mrs. Campbell consulted Frederick C. Simons, a lawyer at.Great Neck, Long* Island, and handed him a carbon copy of the will which her husband had made, saying to him that she had lost her will, and he thereupon prepared two wills, ene for her and one for her husband. These wills were intended to be identical in their provisions and phraseology with the will which had been executed in March, 1915. The carbon copy of the will of 1915, drawn by Mrs. Campbell, was produced in evidence before me, as well as the draft of the will which was prepared by Mr. Simons in 1919. This will that was drawn in 1919 was delivered by Mr. Simons to Mrs. Campbell. Mr. Simons testifies that, 'subsequently, I had another talk with Mrs. Campbell, and she said that they were going to come clown and fix np these wills.’ I says, ‘Haven’t yo-u found.the old one yet? and she said, ‘No, they haven’t found it.’. ■
    “They never came, and these new wills were never executed. - The will of March, 1915, has never been found.
    “As I have already indicated, I am entirely satisfied that the will in the form set forth in the bill of complaint was duly executed on the 1st of March, 1915. The question then be fore me is, Can this will of March, 1915, be established as a lost will ?
    “Before determining, that question, it may be necessary to say a few words on the preliminary questions raised by the defendants as to the admissibility of the evidence adduced before me. The first claim is that the declarations of the alleged testatrix are not admissible. The cases .which are cited in support of this point are all cases where the declarations of the testator was offered as to the contents -of a will which was actually produced and proved. None of these cases go to the question of the evidence of the testator as to the loss or disposition of a will or the contents of a lost paper. That the declarations of the testator both before- and after the making of the will are admissible in a case such as this, was decided in the famous case of Sugden v. St. Leonards, L. R. 1 Prob. Div. 154, which has been cited and followed in this state.

      “Secondly. The objection is also made to the testimony of the attorney who drew the wills on the ground that the statements to him of Mrs. Campbell and her instructions to him were privileged communications and not admissible. Merely to state this objection is to refute it, to- say nothing of the fact that no objection was made on this ground at the hearing.
    “It is, however, unnecessary to deal at any length with, these objections in view-of the conclusions I have come to as to the case itself.
    “On the whole case, and - on the entire evidence that has been produced, I am of the opinion that the will of March-1st, 1915, cannot be established and proved as a lost will, and I may say that I have come to- this conclusion after- great hesitation and much to my regret. '. . '< ■
    “It is a well-established principle that when a will-is left in the hands of the testator, and is not found at the'dime of liis death, a presumption of- a revocation arises. And it is equally well settled that this presumption- may be overcome by proof.
    “All the cases, hoAvever, are in accord, that where the will is lost or destroyed while in the • possesssion of the testator, the loss or destruction must be without his- knowledge, or the presumption of revocation is-not overcome. Sugden v. St. Leonards, supra; McBeth v. McBeth, 11 Ala. (N. S.) 596; Dawson v. Smith, 3 Hous. (Del.) 335; In re Deaves, 21 Atl. Rep. 395.
    “Whatever would have been the situation before the time' the-testatrix went to Mr. 'Simons to have a new will drawn, it is unnecessary to> consider. ...
    “At that time, six or seven months'before her death, she knew, that her will was lost-, or was where it could not' readily be found. She realized that under those circumstances she would, if she died, be Considered, or, at least, be in danger of being considered, to have died intestate. ■ That must have been the reason why she had a new wilTdr'awn. Yet she never executed the new will—with all the • opportunity for doing SO', she must be presumed to have had a -good reason for not executing it. Everyone is charged with-the. knowledge of the legal consequences of his acts and his omissions. It -is-clear that the decedent realized the possible situation at the time of her death, and with the opportunity to provide against it. did nothing. •
    “There is evidence that the decedent was ill during that time, but she was not so ill that she could not have .gone through the simple formality of having her will attested. In fact, there would he the more inducement if her health had been, in her judgment, precarious, to have this--done.That she may have contiiluecl to have, the intention to leave-all her property to her husband does not affect the result,' sol long as she did not put that intention into- the form which the law has devised for her.

      “There is evidence on the pa'rt of the defendants that the decedent was not living happily with her husband. It is true that at the time of her death she was living apart from him, whether because of any disagreement, or for other reasons, the testimony is in some cunflict.
    “It is established, to my mind, that. the husband advanced to the decedent money for the real estate whereof she died seized.
    “These various considerations are, in vieAv of the legal situation, it seems to me, of no importance.
    “The following language of Chief-Justice Paxson, in Deaves’ Appeal, supra, is peculiarly applicable to the case in point:
    “ 'This was an attempt to probate a will alleged to have been lost during the lifetime of the testator. There is no doubt that when it is shown that the will of a testator was in existence, unrevoked, at the time, of his death, and was afterwards lost or destroyed, its contents may be proved by parol, and the will, as thus reproduced, may be admitted to probate. So much was decided in Foster’s Appeal, 87 Pa. St. 67. The weak spot in the appellant’s case is that there was no proof that the testator left behind him an unrevoked will, or any will whatever. On the contrary, it is an admitted fact that the will, which it was alleged the testator had executed, was lost or destroyed in his lifetime, and that its loss was known to him months before his death. There was proof of his declarations that he intended to make another will, possibly containing the same provisions,, but he never did so. Knowing that he had no will, he declined or neglected to make one. From this a presumption of revocation may fairly be inferred. It would not be safe to place too much reliance upon the declarations of a testator under such circumstances. From anything we know he may have destroyed his will because he was not satisfied with its provisions. and yet have decided to conceal the knowledge of that fact to avoid importunity.’ See, also, McBeth v. McBeth, supra.

      “I am forced to the conclusion that the alleged lost will cannot be established and that the bill must be dismissed.
    “(2) The counter-claim. The object of the counter-claim is to set aside two deeds—the first made by the defendants Kathryn Y. Burns and A. Aloysia Smullen, dated May loth, 1920, purporting to have been acknowledged on that day, in Bergen county, before G-. L. Siebenmann, commissioner of deeds, but not recorded; the second, from the defendants Kathryn Y. Bums and A. Aloysia Smullen and William H. Smullen, her husband, dated March 3d, 1921, purporting to have been acknowledged March 5th, 1921, in Bergen county, by Mrs. Smullen and Mrs. Bums, before- G-. L. Siebenmann, commissioner of deeds, and on March 3d, 1921, in New York City, by William H. Smullen, before Erank TI. Hennessy, a master in chancery of this state. This deed was recorded March 8th, 1921, in the Bergen county clerk’s office.
    “The first deed it is claimed was. not acknowledged; that the commissioner was not present to take the acknowledgment, and did not take it, and that the deed was executed in New York City.
    “As to Mrs. Bums, who is and was then a -widow, the presence or absence of an acknowledgment can be of no importance. The deed, -while it may not be entitled to go in evidence without formal proof or be recorded, is good inter partes.

    “As to Mrs. Smullen, the question of acknowledgment of this deed is equally immaterial. As she executed it without her husband joining in it, it is void. No decree is necessary to establish this invalidity, even had this court any right to make a decree for this purpose-.
    “As to the second deed, it is claimed that it was executed and acknowledged on Sunday by Mrs. Bxxrns and Mrs. Snxullen, and is void for that reason.
    “The testimony is very unsatisfactory, both because of the manner of Mrs. Smullen on the witness-stand, as well as of Siebenmann, the commissioner. The commissioner’s condition on the stand was pitable, due probably, it- must be said in justice to him, to some- physical ailment.

      “Mrs. Burns did not testify1". Mrs. Smullen testifies that she signed a paper on a Sunday, May 16th, but she is not clear that this is the paper she signed. She says that she did not know what she was signing; that she never saw- the paper; that Campbell said he had a paper; that-there was something wrong with the previous one, and then Mr. Siebenmann came in. That she signed it without seeing it, because she took Campbell’s word for everything.
    “The difficulty with that testimony is that the deed, ivhich was apparently made to cure the defect [Mr. Smullen’s not joining], bears date March 3d, 1921, while the first’ deed bears date May 15th, 1920.
    “Siebenmann testifies that he took an acknowledgment on-March 5th, 1921—a Sunday—and dated it a week-day. But the acknowledgment is dated March 5th, 1921, and this was a Saturday. His whole testimony, however, is so unsatisfactory that, on this branch of the case, I would put no reliance on it.
    “It is significant that on the one side neither Mrs. Bums nor Mr. Smullen was called, and on the other side Mr. Campbell did not testify on this po-int.
    “I have stated these points simply because some stress was laid upon them by the defendant’s counsel.
    “That a deed delivered on a Sunday, is absolutely void, is clear. Whether an acknowledgment taken on Sunday, where an acknowledgment is necessary to- give title [P. L. 1918 p. 119], is void; has apparently not been passed upon.
    “However that may be, the question of the legal' validity of these deeds is not for this court, or, at least, cannot come under its jurisdiction as the case stands.
    “The evidence in this case as to the alleged fraud is extremely ’unsatisfactory on both sides. Neither Mrs. Burns nor Mr. Smullen was called as witnesses.
    “Mrs. Smullen’s testimony is as follows:
    “ ‘Q. Wihat did Mr. Campbell say to you?
    “ ‘A. Well, my sister came to live with me, and he gave me to understand that there was a will and that May died, and that everything belonged to him,’ *’ * * ‘and asked my sister and I if we would go down to ¡his lawyer, that made out a deed for this house, and we should go down there; of course, it belonged to him, but rather than to have any extra lawyer’s expenses and fees, and all that sort of thing, if we would just sign it over to him that it would be all right. And ¡he said he would fix the place up and he would give us our share of it He gave us a bag of jewelry that my sister had left.’ ’ * * ‘He said that, under the law of Jersey, that every■thing belonged to him. It belonged. There 'was no Question about it.’
    “On that Mrs. Smullen and Mrs. Burns signed a deed at Mr. Simons’ office in Mew York. As to the second deed she says:
    “ ‘Q. Did you know what you were signing?
    “ ‘A. I did not.
    “ ‘Q. Had you ever read over this paper?
    “ ‘A. No, I never saw it.
    “ ‘Q. Had Mr. Campbell s.aid anything to you with regard to what the paper was?
    “ ‘A. He told me he had a paper, another paper. It did not make any difference whether I signed it or not, but just simply there was something wrong with the other one, but he had this paper, and then Mr. Siebenmann [the eomissioner] walked in.’
    “In a later part of the testimony she says [as to the first deed]:
    “ ‘Oh, the conversation w-a®, will my sister and I go down to Simons’ office and sign deeds, and it would take probably some months for this house to be put in condition and to get a fair price for it. In the meantime, I was to go over there and live and take care of the house, and live there, andi then, when it “was sold, he would share with us.’
    “The complainant’s testimony is this:
    “ ‘Q. What discussion did you have with the brother and the sisters of Mrs. Campbell with reference to this pi’operty after her death?
    “ ‘A. The sisters acknowledged-
    “ ‘[Objected to.]
    “ ‘Well, I asked them to come to Mr. Simons’ office, and he drew up papers for them to sign off.’ * * * T asked them to come to Mr. Simons’ office to sign papers which would release, thé property and turn it over to me. They came down to his office, signed the papers, and each received the legal fee of one dollar apiece.’

      “Further on he testifies:
    “‘They [Mrs. iSmu'Jen and Mrs. Burns] said.: “The property belongs to you; you have worked for it and earned it, and we have no right to it.”

      “‘Q. Therefore, they were willing to sign without consideration?
    “ ‘A. Without consideration.’
    “I have recited substantially all the testimony that is material to this subject.
    “It will be observed that between the time the first deed was executed by Mrs. Smullen, the one in which her husband did not join, and the second deed, more than a year had intervened. During that time she and her sister had every opportunity of making an investigation and ascertaining the facts. I cannot conceive that when Mrs-. Smullen was informed that a corrective paper was to be executed by her, if she was dissatisfied with the previous one, that she was then willing to execute such a new paper without even inquiring as to its. contents.
    “It is to be observed, as I have said, that neither Mr. Smullen nor Mrs. Burns has been called as a witness as to their understanding of the transaction.
    “There is some testimony as to the bag of jewelry that had belonged to Mrs. Campbell that was given to Mrs. Smullen and Mrs. Burns by the complainant. From Mrs. Smullen it might be conceived that this was a consideration for the deed, or, at least, part consideration. While that seems to be negatived by the complainant’s own testimony, however, it seems to me that the whole transaction, including the delivery of the jewelry and the delivery of the deeds, was and could well be construed as a settlement. The sisters obtained the jewelry and were perfectly willing to have the complainant have the title to the house, it being in their minds, and understood by them, that the money for the house had been contributed by the- complainant. That it had been so contributed by the complainant is clearly demonstrated by the evidence in the case.

      “I do not see any reason for believing that either Mrs. Smullen or Mrs. Bums was deceived by the statements of the complainant in the particular that the law of the State -of New Jersey gave him the title. At least, they had abundant opportunity to investigate as to the truth or falsity of this statement. If it were a statement of law, they were chargeable with the same knowledge of the law as the complainant. If, having been made outside of the territory of the State of New Jersey, and, therefore, a statement of fact, it may be said that they had abundant opportunity to ascertain what the fact was.
    “It is a well-established rule that for mere inadequacy of consideration, unconnected with fraud, a court of equity will not set aside a contract. Phillips v. Pullen, 45 N. J. Eq. 830. There are exceptions to this rule in certain cases. As, for example, expectant heirs and reversioners. But this is not one of these exceptions. Here the parties were adversely interested, were entirely competent, and were dealing at aim’s length. Mrs. Smullen is a woman of considerable intelligence, and her attitude on the stand convinces me that by disposition she is not readily to be subjected to another’s will.
    “On the whole case, it appears to me that the defendants have not borne the burden of showing fraud, and I shall therefore advise that the counter-claim be dismissed. The defendant Edward E. Cavanaugh is entitled to costs on his answer. No other costs nor counsel fees will be allowed.
    “Decree may be settled on two days’ notice.”

      Mr. Frank H. Hennessy, for the appellant.

      Messrs. Kellogg & Chance, for the respondent.
   Per Curiam.

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

. For 'affirmance—The Chief-Justice, .Teenchaed, Kaltsch, Black, Katzenbach,- Campbell, Lloyd, White, Van Buskieic,' Kays—10.

"For reversal—None:


text:
    Broadway Trust Company, respondent, v. Borough of Haddonfield, appellant.
    [Decided October 20th, 1924.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Ingersoll, whose opinion is reported in 95 N. J. Eq. 521.

      Mr. Lewis Starr, for the respondent.

      Mr. Patrióle PL. Harding, for the appellant.
   Per Curiam.

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

For affirmance—The Chief-Justice, Teenchaed, Pabkee, Mintuen, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gabdnee, Van Buskiek, Claek, McGlennon, Kays—15.

For reversal—None.


text:
    Anthon J. Bohm, appellant, v. Bessie A. C. Hansmann et al., respondents.
    [Decided October 20th, 1924.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported in 96 N. J. Eq. 73.

      Mr. Frank G. Turner, for the appellant.

      Messrs. Garrick & Wortendylce, for the respondents.
   Per Curiam.

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

For affirmance—The Chiee-Justice, Teenchaed, Pakkee, Mihtuen, Kalisch, Black, Katzenbach, Campbell, IjLOyd, White, Gabdnee, Van Buskiek, Claek, McGlekkoh, Kays—15.

For reversal—None.


author: Per Curiam. White, J.

text:
    John Day, complainant-respondent, v. United States Cast Iron Pipe and Foundry Company, defendant-appellant.
    [Submitted May term, 1924.
    Decided October 20th, 1924.]
    The judges being equally divided on the question whether the judgment should be reversed, the judgment is affirmed solely because of such division, which renders any opinion by the court impossible.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, whose opinion is reported in 95 N. J. Eq. 389.

      Mr. Frederic J. Faulks and Mr. J. Edward Ashmead, for the defendant-appellant.

      Mr. J. W. Rufus Besson, Mr. George 0. Fraser and Mr. Schuyler M. Meyer, for the complainant-respondent.
   Per Curiam.

The decree under review herein is affirmed by an equally divided court.

For affirmance—Trenghard, Parker, Black, White, Gardner, Van Bltsicirk, McGlennon-—7.

For reversal—The Chief-Justice, Minturn, Kalisch, Katzenbach, Campbell, Lloyd, Kays—7.

Syllabus by White, J.

1. Dividends (not in liquidation) upon the capital stock of a corporation, whether common or preferred, can only be paid out of net profits or surplus.
2. Generally speaking, tlie distinction between cumulative and noncumulative preferred stock is that dividends upon the former have at all times and for all years, past and present, until paid, priority in payment over any and all unpaid dividends upon common stock, whether the net earnings for any particular past or present year were or were not sufficient to pay the stipulated cumulative dividend upon preferred stock for that year; whereas, the like priority of dividends upon non-cumulative preferred stock (wholly or partially, as the case may be) is limited to the unpaid dividends for those years when such net earnings were sufficient (wholly or in corresponding part) to pay such dividends.
3. While the first part of section IS of the Corporation act (Revision of 1S96) confers a broad discretion upon corporators in giving names and preferences, and restrictions and qualifications thereof, to the various classes into which they are authorized to divide the shares in the capital stock of a corporation, the second or latter part of that section fixes upon the corporation a definite contractual obligation to pay in preference or priority to any dividends upon common stock the definite dividend fixed by the articles of incorporation (cumulative or non-cumulative, as the case may he) upon that class or those classes, the preference of which bring it or them within the proper designation of “preferred.”
4. "Where stock was expressly, and without qualification of any kind, designated in the articles of incorporation as “preferred stock,” and its principal or par value given preference over the common stock on liquidation, and its dividends limited to a fixed rate not exceeding the eight per cent, limit specified in the Corporation act for preferred stock, and such dividends for any fiscal year were given preference or priority of payment out of the surplus net profits for such fiscal year over dividends upon common stock for that year— Held, that a provision in the articles of incorporation and in the by-laws, authorizing the payment of a dividend upon the common stock ont of the surplus net profits of any fiscal year after the stipulated dividend upon the preferred stock for that year had been paid, but without saying that this might be done while earned but withheld dividends for previous years upon the preferred stock remain undistributed in the reserve working capital fund, does not entitle the corporation to pay dividends to common stockholders until withheld earned and available dividends for previous years upon preferred stock have been distributed to the -preferred stockholders.
5. The dividend priority for preferred stock fixed by section 18 of the Corporation act is the declaration of a legislative policy to encourage the investment of capital in business enterprises upon a eon-t’ngent-upon-profits and limited-dividend-rate basis, and as such cannot be overcome (if it may he legally overcome at all, which -is not here derided), except by language so clear and challenging that its purpose can neither bo misunderstood nor overlooked.
0. Tn the absence of fraud, either actual or constructive, preferred stockholders, as well as common stockholders, are dependent for the establishment of their right to dividends, upon affirmative action of the board of directors; but where the board of directors has fixed the fact of net earnings by transferring them, during the years in question, from the profit and loss account to the “working capital reserve” account, and then years afterward, but, while such earnings remain in that account, has, by declaring a dividend upon the common stock, established the additional fact that there are funds in the surplus of the corporation “available” for dividend purposes. Held, that there was thereby established affirmative action of the board of directors violative of the priority rights of the preferred stockholders whose dividends had not been paid for the years in question, and that the payment of the proposed dividend on the common stock was properly enjoined.

This opinion was delivered by

White, J.

This is a suit in the court of chancery by a holder of n on-cumulative seven per cent, preferred stock m the defendant corporation, to enjoin the latter from paying a dividend to its common stockholders out of net earnings for the fiscal year 1922 (the preferred stockholders having already been paid their stipulated seven per cent, dividend out of the earnings for the fiscal year), while preferred stock dividends for previous years (for which such seven per cent, was not paid) earned during those years, but withheld and placed in a “working capital reserve” fund by the board of directors, remained undistributed as dividends to the preferred stockholders. The defendant corporation asserts that it has the authority by its charter and by-laws to do just that thing.

The relevant charter provisions, after fixing the authorized capital stock at $30,000,000, of which $15,000,000 dollars “shall be preferred stock” and $15,000,000 “shall be common stock,” provded as follows:

“The preferred stock shall be entitled, out of any and all surplus net profits, whenever declared by the board of directors, to noneumulative dividends at a rate not to exceed seven per cent, per annum for the fiscal year beginning on the 1st day of June, 1899, and for each and every other fiscal year thereafter, payable in preference and priority to any payment of any dividend on the common stock for such fiscal year. In the event of the dissolution of the corporation the holders of the preferred stock shall be entitled to receive par value of tlieir preferred shares out of the surplus funds of the corporation remaining after payment of its debts, before any payment shall be made therefrom to the holders of the common stock.
“The common stock shall be subject to the prior rights of the holders of the preferred stock as herein declared. If, after providing for the payment of full dividends for any fiscal year on the preferred stock, there shall remain any surplus net profits for such .year, any of such net profits of sudh year and of any other fiscal year, after full dividends shall have been paid on the preferred stock, shall be applicable to such dividends upon the common stock as from time to time shall be declared by the board of directors; and out of any sudh surplus net profits, after the closing of any fiscal year, the board of directors may pay dividends upon the common stock of the corporation for such fiscal year, but not until the dividends upon 'the preferred stock for such fiscal year shall have been actually paid or provided for and set apart;” and

Article 13 of the by-laws provides:

“The directors may, from time to time, set aside all or any portion of the net profits of the corporation as and for additional working capital; and the directors may also, from time to time, as in their discretion seems best, diminish such working capital by transferring such net profits as may have been set aside therefor back into the profit and loss account. The directors may, either annually, semi-annually or quarterly, as in the discretion of the directors may seem best, declare a dividend or dividends on the preferred stock of the corporation; provided, however, that the aggregate amount of dividends paid to the preferred stockholders out of the profits of any fiscal year shall not exceed the sum of seven per cent. (7%) on the preferred stock.
“At the expiration of each fiscal year of the. corporation, the directors may declare a dividend among the common stockholders of the corporation out of the accumulated profits exceeding the amount reserved for working capital as aforesaid, and such dividends may be made payable as and when the directors may determine; but such dividends shall only be paid after full dividends shall have been paid__, or provided for upon tlie preferred stock for such fiscal year.”

The learned vice-chancellor, in advising the prayed-for injunction, held that if defendant’s contention were, in fact, substantiated by a proper interpretation of these charter and by-law provisions, such provisions were-, to that extent, illegal, because, as he thought, in conflict with the express requirements of section 18 of the Corporation act (Bevision of 1896), in effect in 1899, when defendant was incorporated, which provides:

“Every corporation sliall have power to create two or more kinds of slock, of such classes, with such designations, preferences * * * 0r restriction or qualification thereof as shall be stated and expressed in the certificate of incorporation; * * * but at no time shall the total amount of the preferred stocks exceed two-thirds of the actual capital * * * and the holders thereof shall be entitled to receive, and the corporation shall be bound to pay thereon, a fixed yearly dividend, to be expressed in the certificate, not exceeding eight per centum, payable quarterly, half-yearly or yearly, before any dividend shall be set apart or paid on the common stock, and such dividends may be made cumulative; * * * ”

Apparently, under what may be called the first half of this section, incorporators may, jin their discretion, divide the capital stock of a proposed corporation into two or more classes, and they may give each class such name and such preferences as they desire, and, again, they ma)r limit or qualify such name and preferences by such restrictions or qualifications as to- them shall seem best; but under the second half o£ the section, if preferred stock shall be created, it cannot exceed in quantity two^-thirds of the whole capital stock, and the payment of fixed dividends thereon, so far as priority of such dividends over any dividends upon common stock is concerned, is made a contractual obligation of the corporation.

If it were not for the ver;'- wide discretion given in corporators under the first half of this section 18, there would be little difficulty in arriving at the meaning of and applying what may be called the second half of the section, because in the absence of refining differences of designation and preferences, and restrictions and qualifications thereof, preferred stock, so- far as the payment of dividends is concerned, may, speaking generally, be said to- embrace cumulative preferred stock and non-eumulative preferred stock, the distinction between the two- being that while dividends (not in liquidation) upon each can, of course, only be paid out of profits or surplus (McGregor v. Home Insurance Co., 33 N. J. Eq. 181; Mills v. Hendershot, 70 N. J. Eq. 258), the dividends upon cumulative preferred stock have at all times and for all years, past and present, until paid, priority in payment over any and all unpaid dividends upon common stock, whether the net earnings for any particular past or present year were or Avere not sufficient to pay the stipulated cumulative dividends upon preferred stock for that year; whereas, the like priority of dividends upon non-cumulative preferred stock (wholly or partially, as the case may be) is limited to the unpaid dividends for those years when such net earnings were, sufficient (wholly or in corresponding part) to pay such dividends. This distinction renders it self-evident that the. suggestion made by counsel that complainant is contending for cumulative preferred stock rights for his non-cumulative preferred stock is without merit. -The foregoing general classification, however, ■ is obviousfy subject to considerable modification under the broad discretion conferred by the first half of section 18. It would seem that classes of stock might be created and designated as common, but at the same time be given certain preferences over other classes of stock likewise designated as common, and, on the other hand, it may possibly be that other classes of stock may be created and designated as preferred, when, in fact, their stipulated preferences may not bring them within the proper classification of preferred stock referred to in the second half of 'the section.

We are inclined to think, therefore, that a careful interpretation of the wording of the preferences, as well as of the designation, and also of other attributes, is necessary in each instance, in order to decide whether the so-called preferred stock of a corporation falls within the requirements of the second half of the eighteenth section.

The preferred stock here involved is expressly made noncumulative, and in a former case (Bassett v. United States Cast Iron Pipe and Foundry Co., 75 N. J. Eq. 539)yifivolv ing a construction of these same charter and by-law provisions, this court, in denying cumulative dividend rights to the preferred stockholders, and at the same time overruling the contention of the corporation that earned but withheld preferred stock dividends became the property of the common stockholders, said, in an opinion by the chief-justice: “On the one hand the corporation has no right to accumulate a reserve fund from earnings which would otherwise be paid out as dividends to the holders of common stock, and afterward use it to pay dividends to the preferred stockholders, when the net profits of the year for which the dividend is declared are not sufficient for that purpose. On the other hand, when the reserve fund is accumulated, in whole or in part, by the cutting down of dividends, which would otherwise have been paid to preferred stockholders, that fund, so far as it represents moneys so retained, is available for the payment of subsequent dividends upon the preferred stock. To yield to the contention of the complainant would be to permit the directors of the corporation to> defraud the preferred for the benefit of the common stockholders, while to sanction the claim of the defendant would be to put it in the power of the directors to defraud the common for the benefit of the preferred stockholders,” and in the case of Moran v. United States Cast Iron Pipe and Foundry Co., affirmed by this court at the present term upon the opinion of Vice-Chancellor Backes, it was held that the working capital reserve fund here involved, partially made up as it is of a definite sum withheld by action of the board of directors from earned dividends on the preferred stock of previous-years, is, nevertheless, in fact a part of the surplus of the ^ corporation, and that- a belated dividend upon the preferred stock was properly declared out of the withheld preferred stock dividends portion of it by the board of directors in the '~~year'T922, although the preferred stock had already received its stipulated seven per cent, of dividends out of the earnings of that year.

In view of these decisions and of this corporation’s general charter provisions expressly designating without qualification the stock here involved as “preferred stock,” and limit ing- its interest, in earnings to a definite percentage in accordance with the second half of section 18 of the Corporation act, and also giving it priority in payment of principal at par out of assets in case of dissolution, we think the- stock obviously, appears to fall within that class designated in the act as preferred, which the legislature (in its desire to assist business enterprises by encouraging the investment therein of capital at a limited and coutingpnt-upon-profits interest rate) clothed, except as against creditors, with many of the attributes of bonds, and which it clearly intended expressly to protect in the manner specified in the second half of the eighteenth section above referred to.

This being so^ if the policy of the legislation is to be defeated, and the seeming security thereby tendered is to be destroyed by the language of the preference clause or clauses of the articles of incorporation, that language must be so clear and challenging that its purpose can neither be misunderstood nor overlooked. Such is not the language here involved. The most that can be said of it in behalf of the corporation’s contention is, that it says that the board of directors may declare a dividend upon common stock out of the earnings of a fiscal year after the stipulated seven per cent, on the preferred stock for that year has been paid. Bui it does not anywhere say that this may be done while earned available but withheld dividends upon the preferred stock for previous years remain undistributed in the surplus of the corporation. That it must say this, in order to- accomplish any such purpose (assuming that such purpose legally can be so accomplished, as to which we express no opinion), seems to us too plain to require argument. Such a provision would be in conflict with the secured priority idea underlying the legislative scheme or policy. It would, at least, to a marked extent, contradict the designation “preferred” which the corporation used without qualification, and which the legislature said meant and secured a certain priority,- which such a provision would destroy. How much capital would have been invested in the preferred stock of this corporation if its charter had expressly provided that the board of directors might, wherever and as long as they might see fit, apply all the net earnings to a permanent increase of its capital (which increase, of course, would belong to the common stockholders on dissolution and would increase only their dividends in the meantime), instead of paying dividends to the preferred stockholders ? Naturally, none at all, and yet that is exactly, in effect, what the corporation here claims it may clo in the absence of such a clause and in the face of its charter and legislative obligation to pay non-cumulative dividends of seven per cent, each year when earned, and, in the judgment of the board, available, to its preferred stockholders. We think, therefore, that the corporation’s charter and by-law provisions do not authorize the payment to the common stockholders of the proposed dividend, while earned available and unpaid dividends on the preferred stock remain undistributed to the preferred stockholders in the corporation’s surplus. j

There remains for consideration but one point, viz.: Has the status of these preferred stock unpaid dividends for previous years been so fixed and ascertained as available net profits for dividend purposes by action of the board of directors, as to vest in the preferred stockholders the right here sought to be enforced? We think it has. We fully realize that a mere allegation that dividends have been earned is not sufficient, for, in the absence of fraud, actual or constructive (neither of which is here charged), the dividend rights of stockholders, whether preferred or common, are dependent in this respect upon affirmative action of the board of directors. Stevens v. United States Steel Corporation, 68 N. J. Eq. 373; Blanchard v. Prudential Insurance Co., 80 N. J. Eq. 209. But this is not an attempt to force the payment of an undeclared dividend on the preferred stock. The effort here is to prevent the payment of a dividend on the common stock in violation of the priority rights of the preferred stockholders. In'the absence of fraud, therefore, two things are essential to accomplish this, namely—first, affirmative action of some kind by the board of directors establishing the fact of earnings for the previous years, now available for the payment of the withheld or “passed” dividends for those years upon the preferred stock; and second affirmative action of the board of directors declaring a dividend upon the common stock in violation of the priority rights thus established of the preferred stockholders. . That the board declared a dividend upon the common stock is establisted, and is not questioned, in fact it is the thing here complained of. As to the first essential, we think the fact of net earnings for the years in question was properly established by the action of the board of directors in taking the amounts in question out of the profit and loss accounts for those years and placing them in the “working capital reserve,” and thai the present “availability” of those net earnings (to the extent of the amoimt which would be required to pay the proposed dividend on the common stock), for tire payment of the thus earned but unpaid dividends on the preferred stock for those years, is established by the present declaration of a dividend upon the common stock. This being so, the priority right of the preferred stockholders to receive the withheld dividends before any dividend on the common stock may be paid, is controlling. It may be that the payment of the withheld dividends on the preferred stock will reduce the reserve working capital fund below the mark which the hoard of directors may think necessary for the best interests of the business of the corporation, but if that is so' they should make up the shortage from the money they proposed to use to pay a dividend upon the common stock instead of paying the latter dividend in violation of the priority rights of the preferred stockholders.

The decree appealed from is affirmed.

Note.—One of the judges was absent when this case was conferred upon and the opinion assigned, and the foregoing opinion was prepared in pursuance of such assignment. The absent judge was present upon opinion day, however, and voted for reversal, thereby reducing the majority of one for affirmance, to a tie vote for affirmance.

This opinion is therefore filed as expressing the views of the members of the court who voted for affirmance.


author: Walker, Chancellor.

text:
    Charles A. Wood, petitioner, v. Elma Robbins Wood, deiendant.
    [Decided March 27th, 1925.]
    1. The denial of sexual intercourse by one spouse to the other constitutes an actual, and not a constructive, desertion, although the parties continue to live together in the same house.

      2. A wife’s discouraging calls on or frqm her husband’s friends, and her embracing the study of palmistry, phrenology, astrology, new thought, new psychology and other so-called idealisms, and talking constantly about those things, losing interest in her husband, nagging him and subjecting him to other petty annoyances, do not constitute extreme cruelty, so as> to make the husband’s leaving his wife constructive desertion on her part, not even when coupled with denial of sexual intercourse, for the latter, when persisted in for the statutory period, constitutes an actual desertion by her.
    3. The master is charged with the duty of keeping out illegal testimony in ex parte cases.
    On petition for divorce. On final hearing on master’s report and depositions ex parle.

      Mr. Charles E. Hendí ickson, for the petitioner.
   Walker, Chancellor.

The petition in this case is in form one for divorce for constructive desertion, and in that respect is misconceived, as tile proofs annexed to the master’s report malee a case of aclual desertion. It alleges cohabitation between the parties from the time of their marriage in. 1900 up to- March, 1907, during which time defendant treated the petitioner normally, except that in petty ways she tried to discourage visits and calls upon bis friends and to avoid as much as possible- inviting his friends to their borne, so .that after 1907 no- friends of petitioner were invited to the home, nor did any of them come there except on two or three occasions; that during a time defendant used liquor to excess, which she afterwards gave up, and they had no further trouble -on that subject; that the causes leading up 'to the cessation of cohabitation in 1907 were- that for more than a year prior thereto-, when petitioner requested sexual indulgencie, defendant almost invariably refused; that finally in March, 1907, defendant definitely and finally refused any cohabitation (meaning, doubtless, sexual intercourse), and petitioner being satisfied that further advances would be unavailing, gave up seeking such relations; that petitioner gave as a reason, for her conduct that the highest ideals of married life were- lived without any sexual relations whatever; that in April, 1907, because of the illness of defendant’s mother, she was permitted to occupy his bed in their apartment, he sleeping on a, folding bed in the dining-room and never again occupying the sleeping room with the petitioner (pleading evidence, which is against the rule); that about the year 1908 defendant, against the protest of petitioner, began the study of palmistry, plirenolog}, astrology, new thought, new psychology and other so-called idealisms, working herself up^ to a condition of mind until she was completely under the domination of professors and lecturers on the subjects; that this continued up> to' September, 1921, when petitioner was driven from his home as a result of the conduct of defendant induced and caused by the conduct of her mother and the influence of the teachers and lecturers mentioned; that from 1908 to 1921 defendant developed a violent and angry temper toward petitioner, and by all the time talking and discussing only the cults, theories and teachings of the lecturers aforesaid, and blaming him constantly for imaginary things, continnally nagging him when he was about the house;, demanding that he operate and run his business in accordance with, the teachings and directions of the lecturers aforesaid, so that he was actually driven from his home Sundays and holidays, &c.; that by reason of an automobile accident in 1921 lie went to Atlantic City, where he afterwards acquired a residence.

After rnncli more pleading the petitioner a.vers that the defendant, by the true intent and meaning of the statute in such case made and provided, has ever since the month of September, 1921, and for more than two years then last past, willfully, eontinuedly and obstinately deserted the petitioner.

This, as stated, amounts to pleading a constructive desertion. It is, in effect, an assertion that the petitioner left the defendant because driven' from her by her conduct toward him. The gravamen of the offense, it will be observed, was her denial to him of sexual intercourse. The other matters do not, either by themselves or when coupled with denial of sexual intercourse, amount to extreme cruelty.

In Rector v. Rector, 78 N. J. Eq. 386, it was held that unjustified refusal of one spouse for the statutory desertion period to have sexual intercourse with the other, and withdrawal from other marital duties against the defendant’s will, constitute desertion, though they continue to reside in the same house. It was also held that a physical departure from a spouse is not essential to’ desertion. It therefore follows that actual desertion arises as well from a denial of sexual intercourse as from physical departure. The divorce in the Rector Casa was granted upon the cross-petition of the defendant, iñ which it appeal’s from the files there was no recital of facts alleging that they, within the meaning of the statute, constitute desertion, but a mere statement that the defendant deserted the petitioner, couched in the statutory language. The proof of the desertion was the denial of sexual intercourse. Although the Rector Case mentions, withdrawal of other marital duties against defendant’s will, that is doubtless because the facts were present before the court, but it is not suggested that they constituted cruelty, and it is perfectly apparent that the divorce would have- been granted for the denial of sexual intercourse alone, if there were no other facts in the case. And our adjudicated cases, as I understand them, so. hold.

In Parmly v. Parmly, 90 N. J. Eq. 490, a divorce was granted for desertion, the desertion consisting of a denial of sexual intercourse by the husband, although the parties continued to live under the s,ame roof. The petition simply pleaded actual desertion. And there are other cases to the same effect, as an inspection of the files in the clerk’s office will show.

Although a constructive, instead of an actual, desertion was pleaded in this case, the legal situation is not like that presented in Metzler v. Metzler, 69 Atl. Rep. 965, wherein an actual, instead of a constructive, desertion was pleaded. In that case Chancellor Pitney said: “The petition charges in the simplest foam that, the defendant deserted the petitioner on the date mentioned,” which, of course, means that the petition charged an actual desertion. The chancellor further observed that the case made by the proofs and found by the master was, that on the date referred to the petitioner left the defendant because of Ms long-continued cruel treatment of her; that a case of constructive desertion on the part of the defendant was fairly made out, but that the petition did not plainly and fully convey notice to the defendant that he was called upon to answer a case of constructive desertion, and that he was justified in supposing that Ms wife could not support with proofs the case that she averred in her petition. He held that the defect might be cured by amendment, and permitted an amended petition to be filed with leave to the petitioner to take an order reciting the making of the master’s report and the filing of the amended petition, and requiring defendant to show cause at a future date why a decree should not be made against him for constructive desertion in pursuance of the master’s report. See, also, Thomas v. Thomas, 74 Atl. Rep. 125; McLaughlin v. McLaughlin, 90 N. J. Eq. 322.

The reason the situation in the case at bar is not like that in the cases, last cited is, that, the simple charge of willful, continued and obstinate desertion for the statutory period means an actual desertion, and this, of course, includes anything that amounts in law to an actual desertion, including denial of sexual intercourse, as it has been repeatedly held that that constitutes actual desertion.

In Smithkin v. Smithkin, 62 N. J. Eq. 161, Vice-Chancellor Reed observed (at p. 163): “I am of opinion that when a divorce is asked for on the ground of desertion arising from the compelled absence of the. petitioner by reason of the extreme cruelty of the respondent, the facts, should be so charged in the bill or petition. The issue to be tried in such a case would be the fact and the degree of the respondent’s cruelty, and the respondent is entitled to be informed of the issue to be tried and to answer the acts, charged. The case of an ordinary desertion and one such as we are considering radically differ. The proof offered in support of each differs. The proof offered in support of the former would often refute the existence of the latter. This ease is an instance, for the petitioner swore- that lie- had asked his wife to return to him, and such a. request was in direct opposition to the theory that he;, “by reason of her extreme- cruelty, co-uld not live with her.”

Now, obviously, if a decree is sought on the- ground of extreme cruelty, the facts must be pleaded to- put the- defendant on notice of the charge against him and give him an opportunity to defend against those particular facts, and if, as in the instant case, an actual desertion is relied upon, though pleaded in the form of a constructive desertion, the defendant is not harmed, because she- has full notice of the facts alleged, whereas-, in the caso of an actual desertion, there is no fact necessary or proper to- be alleged in the petition except the- physical departure from the- petitioner, and that, in effect and intendment of law, is charged by pleading a willful, continued and obstinate desertion for the statutory period. Therefore-, it results that there- need bo no order to show cause here to- enable the defendant to meet the case of the petitioner. She is presumed to know the law and to-know that a charge of actual desertion resides in the long and more of less complicated state of facts detailed in the petition. I say a charge- of actual desertion, because these- facts do not, to- my mind, make- a case of extreme cruelty, and, consequently, do not make a, case- of constructive- desertion. No- -violence was- offered by the- wife to the- husband, who married her for better or fo-r wo-rse^ and there is- no law to prevent a wife from discouraging calls on or from her husband’s friends, or embracing the study of palmistry and other kinds of so-called idealisms, losing interest in her husband and nagging him, all of which, and mo-re of the same general character, is charged in the petition.

Mr. Bishop in his work on Marriage, Divorce and Separation, vol. 1, § 1.630, says that causes^ both physical and mental, render the infliction of cruelty by the- wife on the husband loss common than by him on her, yet the law gives- the- same relief to a- complaining husbaard as to a complaining wife. And in section 1638, that the wife’s petty annoyances of the husband, such as fault-finding, disparaging his commonsense taste and judgment, and other like complainings, of him; her absence from home to learn painting, without his consent; her occasionally addressing him angrily and disrespectfully, and for a time refusing to sleep in the same room with him, have severalty been held inadequate cruelty for divorce in favor of the husband. And these causes are very like the ones, alleged in the easei at bar.

There is a feature of this case that should be adverted to, and that is the character of much of the testimony that has been taken. It abounds in leading questions, hearsay and characterizations, against the rules of evidence. To iilus,trate. Petitioner was under examination as follows:

"Q. You now know that about that time, or shortly prior to. that time* she [defendant] had fallen in love with some other man, don’t you? A. I had been told so. Q. Who told you? A. Miss Florence Clark. Q. You never suspected ydurself she had any affection or interest in him, except as a music teacher? A. That is all.” The court has. nothing to do with petitioner’s suspicion, and counsel is, not entitled to ask a witness what his suspicions are. We deal only with facts. “Q. You had never heard from Miss Clark or from anyone else any suggestion of suspicion of Mrs. Wood’s relation with Tier until this present month? A. Never. Q. You think that she made it plain to your friend that she didn’t want him to- come to that house? A. Yes. Q. How did she make it plain, what did she do?” A proper question would have been, “What, if anything, did defendant do' with reference to your friends?” "Q. Why didn’t they come home? A. I don’t know.” This question permitted an answer consisting of anything the witness thought on the subject, and certainly his undisclosed thoughts could not be evidence. Of course, the master’s question, about the pendency of other and former proceedings, are in the nature of a cross-examination and may be leading.

Edwin J. Johnson testified: "Q. Did she [defendant] appear to be bull-headed, was it something she was insistent upon? A. Most insistent.” What was bull-headed to the witness might not be to the court.—besides, it was the statemcnt of mental attitude instead of a fact. “Q. Did you know that Mr. and Mrs. Wood didn’t sleep together and didn’t occupy the same bed? A. Yes. Q. How did you know that? A. In several different ways. Mr. Wood told me, and then at different times when I was. there I heard her say, ‘Mother was sick in the night and I bad to get up in the night and call Major [Mr. Wood],’ so T knew from inference.” Inferences áre not evidential.

Elsa C. Pearson was examined: “Q. Was she [her mother] really an invalid or an imaginary one? A. She seemed very miserable at times, suffering with neuritis.” Of course, this question was inadmissible. The question was obviously objectionable, but the answer was harmless, though irresponsive.

The rules of evidence, which do not permit of leading questions, characterizations, hearsay and conclusions, and which require that facts only may be testified to by witnesses, leaving all inferences, to be suggested by way of argument and to be decided by the court, apply as well to ex parte cases as to litigated ones. In ex parte cases the court represents the absent defendant, to the extent, at least, of seeing to it that he is condemned only upon a proper case being made out by legal evidence. A defendant who does not contend against a plaintiff’s demand has the right to presume, and to rely upon the presumption that no judgment will pass against him unless the adversary party shows himself entitled to it by the strict rules of law. In re McCraven, 87 N. J. Eq. 28; see, also, Butts v. French, 42 N. J. Law 397, 400. Rule 178a of this court, promulgated March 23d, 1923, charges the masters with the duty of aiding the- court in keeping out irrelevant, incompetent and immaterial testimony. Another thing: The testimony in this case was entirely too prolix. In ex parte cases no more testimony should be taken than is reasonably necessary to- prove the petitioner’s case. There is, however, sufficient legal evidence in this case to warrant a decree for the petitioner, and I am minded to grant him that relief, notwithstanding the incompetent testimony above adverted to. And there is much more- of it in the case than that herein specifically set out.

The result reached is, that although the petition counts upon a constructive desertion, while the proofs show an actual one, and while the proofs abound in illegal evidence, nevertheless, there being sufficient legal testimony of an actual desertion to warrant a decree nisi, such decree will be granted for that cause.

Decree nisi accordingly.


text:
    Martin L. Cohn et ux., complainants, v. William R. Colgan, defendant.
    [Decided April 2d, 1925.]
    1. The Corporations act (Comp. Stat. p. 1592 § J/Sa) and the Chancery act (Comp. Stat. p. 40S § ’5a), each providing a method of serving process upon a corporation, are not repugnant to each other but are in pari materia, and service made under either section is regular mid lawful.
    2. The provisions for service of process contained in these acts apply to service upon corporations formed under the act to incorporate associations not for pecuniary profit (Comp. Stat. p. 125), notwithstanding there is no provision in the latter act as to how service may be made upon them in any case.
    3. In the absence of the secretary of state, service of process may lawfully be made upon a corporation who, for the time being, has no designated agent, by serving same upon the assistant secretary of state in virtue of section 43a of the Corporations act.
    4. A contract to convey land will be specifically enforced against the vendee where the title was made under a foreclosure and sale in a chancery suit where service of subpoena was made upon the corporation defendant, owner of the equity of redemption, under the Corporations act. Gomp. Stat. p. 1.592 § Ifia.

    On bill, &c. On final hearing on pleadings and proofs.

      Mr. Qarl Weitz, for the complainants.

      Messrs. Pierson & Schroeder, for the defendant.
   Walker, Chancellor.

This is a suit for specific performance brought by the complainant Martin L. Cohn, the owner of the premises described in the bill of complaint, and his wife^ Emma N. Cohn, against William P. Colgan, who- by written contract agreed to purchase the premises from complainants. This case is submitted on the pleadings and the proceedings in the foreclosure suit of Morton T. Brewster against North Jersey Aged People’s Home Association (hereinafter called the Association), under which complainants’ title ivas derived, and also the files of the secretary of state’s office relating to the incorporation of the Association, and also the proof of service upon it in the foreclosure case. The Association ivas incorporated under an act of April 31st, 1898, entitled “An act to incorporate associations not for pecuniary profit.” Oovip. Stat. p. 125. Such associations- are made bodies corporate with the right to sue and be sued, but without any provision in the act as to- how service may be made upon them in any suit in which they may be defendants.

The General Corporations act, entitled “An act concerning corporations (Re-vision of 1896),” (Comp. Stat. p. 1592 § 1/Sa), provides that every domestic corporation (and foreign corporation doing business within this state) shall file in the office of the secretary of state, within a certain time, a report stating, among other things, the location of its registered office and the name of the agent upon whom process against the corporation may be served, and that in case any corporation shall fail to file such- report within the time required, or in case the agent of any such corporation designated as the agent upon whom process- against the- corporation may be served, shall die or resign or remove from the state, or cannot with due diligence be found, it shall be lawful, while such default continues, to serve process against any such corporation upon the secretary of state, and that such service shall be as effective to- all intents and purposes as if made upon the president or head officer of such corporation. The subpoena in the foreclosure suit contains an endorsement that it was duly served upon the Association, a corporation defendant, by giving and delivering to William L. Dill, assistant secretary of state, the secretary of state being absent from Ms office, a true copy thereof personally at the office of the secretary of state, state house, Trenton, New Jersey, together with a service fee of $3 according to the statute. The reason for this service was that Dr. Bernard Claussen, the registered agent theretofore designated by the Association in its report duly filed in the office of the secretary of state for sendee of process upon it, died some time prior to the institution of the foreclosure suit, and there having been no one named in his place by the Association, there was no one upon whom process could be served, except the secretary of state in virtue of the statute, if, in fact, the statute applied. And it did.

The provisions of the General Corporations act are not restricted to corporations formed under its provisions, but apply to all corporations so far as they are necessary or convenient, and they are governed by the provisions thereof so far as appropriate. Comp. Stcd. p. 1592 § 2.

The defendant insists that the Chancery act provides the only method by which a corporation may be served in a chancery suit, and that not having been pursued in this case, the service on the secretary of state under the Corporations act was void, and that, consequently, the title of the complainant is defective, and that specific performance should not be decreed. The provision of the Chancery act for service upon a corporation is to be found in Comp. Sled. p. J/.12 § 5a, which provides that in a suit in that court against a corporation of this state process served upon the president, vice-president, a director or the designated agent or other officer, shall be good and effective service on the corporation.

It will be observed that the Chancery act does not in terms describe the kind of service just mentioned as exclusive, but simply that it shall be good and effective, and the Oorpora.tions act, as already stated, provides that service of the kind made in the foreclosure suit shall be as effective as if made upon the president or head officer of such corporation. These statutes are not mutually exclusive of each other. The canon of construction as to statutes legislating upon the same subject is, that where both can stand together both shall stand, but where they are so> repugnant one to. the other that both cannot stand together, the former shall give place to the latter. Section 43a of the Corporations act was passed in 1900 (P. L. p. SIS), and section 5a of the Chancery act was passed in 1907. P. L. p. 76. If these provisions were SO' repugnant that both could not stand together, the provision of the Chancery act would be exclusive of the provision of the Corporations act, because the Chancery act is a later enactment than the Corporations act. But there is no conflict between them. In fact, they dovetail into each other.

All consistent statutes which can stand together, though enacted at different times, relating to the same subject, are called statutes in pari materia, and are construed together as one act. Farrell v. State (Supreme Court), 54 N. J. Law 421; West Shore Railroad Co. v. State Board of Taxes (Supreme Court), 92 N. J. Law 332, 335; In re Book (Court of Errors and Appeals), 90 N. J. Eq. 549, 553.

Section 12 of the Chancery act provides, a method of acquiring jurisdiction over an absent defendant, or one who cannot upon due inquiry be found in, or who conceals himself within, this state, or if none of the officers or directors of a defendant corporation of this, state is resident or can be found therein to. be served with process, in which case the chancellor may by order direct such defendant to. appear and plead therein within a time to be designated, and section 13 provides the notice to be given by personal service or bj? publication and mailing. This section is in pari materia with section 43a of the Corporations act, and does not provide any exclusive method of service^ but assuming that the Association was within, the description in section 12, still resort might properly be had to section 43a of the Corporations act for service.

In Groel v. United Electric Co., 69 N. J. Eq. 397, Vice-Chancellor Garrison (at p. 116) referring to the statute of this state concerning service on foreign corporations, said that the argument that the act of 1894 was merely intended to provide'a fixed, specified and designated person to be served instead of the class enumerated in the act of 1865, was, in his view, without foundation to support it, and was directly in the face of the history of the subject-matter and of the decisions and legislation with respect thereto; that the courts in cases where similar statutory conditions exist have held that the two statutes co-exist, and that one is not exclusive of the other, citing cases.

In Martin v. Atlas Estate Co., 72 N. J. Eq. 416, the court of errors and appeals held that section 43a of the “Act concerning corporations (Revision of 1896)” (P. L. 1898 p. 410), requiring the public record of an agent “upon whom process against the corporation may be served,” does not provide an exclusive method of acquiring jurisdiction over corporations in this state by the service of process for appearance upon an agent or officer, it creates an additional agent of the corporations upon whom process may—not must—be served. This is an authority to the effect that section 5a of the Chancery act does not provide an exclusive method of service but an additional one.

The Corporations act (Comp. Stab. p. 1592 § 87) provides for service upon corporations in personal actions at law, and has no application to the case at bar. But this section, while providing that summons shall be served on the president or other head officer or agent in charge of the corporation’s principal office in this state, or left at his dwelling-house, I take it, is not exclusive of the service provided for in section 43a of the Corporations, act, but one in addition thereto.

Lastly, the point is made that section 43a of the Corporations act requires service upon the secretary of state, but that in this case the service made upon the assistant secretary was void. There is nothing in this. The act relative to the office of secretary of state (Comp. Sled. p. 4881 § 14) provides for the appointment of an assistant secretary of state, and that he shall, during the absence or inability, through sickness or other cause, of the secretary, have the same powers and perform all the duties which are imposed by law upon the secretary. As one of the duties imposed upon the secretary of state is tlie acceptance or receiving of service of process under section 43a of the Corporations act, that duty is, by the statute just mentioned, devolved upon the assistant secretary of state. The secretary of state being absent when the sheriff called at his office, service of subpoena, in the foreclosure suit was properly made upon the assistant secretary, who was present.

As this case is clearly with the complainants, the defendant will be decreed to- take title to the premises in question, and specifically perform the contract sued on. The complainants are entitled to costs.


author: Leaming, Y. C.

text:
    Walter C. Davenport, petitioner, v. Adna A. Davenport, defendant.
    [Submitted -November 18th, 1924.
    Determined December 5th, 1924.]
    1. A wile’s desertion of a husband cannot be adjudged obstinate unless it has resisted such efforts on the part of her husband as he ought to have made to bring it to an end, under the particular circumstances of the case. It is only when the deserted husband is without fault, and effort to induce the wife’s return would probably prove unavailing, that the duty imposed upon .him to seek her return can be excused.
    2. The circumstances surrounding a wife's desertion considered; the desertion held not to be obstinate.
    On final hearing for petition for divorce.

      Messrs. Wescoit & Weaver, for the petitioner.

      Mr. Patrick H. Harding, for the defendant.
   Leaming, Y. C.

Our legislature lias provided that desertion, as a ground of divorce, must be willful, continued and obstinate for the statutory period. A wife’s desertion, though willful, cannot be adjudged obstinate unless it has resisted such efforts or concessions on the part of her husband as he ought to have made to bring it to an end, under the particular circumstances of the case. This is the established test in this state by a long and harmonious line of decisions. Jennings v. Jennings, 13 N. J. Eq. 33; Cornish v. Cornish, 23 N. J. Eq. 208; Bowlby v. Bowlby, 25 N. J. Eq. 406; affirmed, 25 N. J. Eq. 570; Meldowney v. Meldowney, 27 N. J. Eq. 328; Taylor v. Taylor, 28 N. J. Eq. 207; Belden v. Belden, 33 N. J. Eq. 94; Sargent v. Sargent, 36 N. J. Eq. 644, 646; Herold v. Herold, 47 N. J. Eq. 210; Chipchase v. Chipchase, 48 N. J. Eq. 549; affirmed, 49 N. J. Eq. 594; Van Wart v. Van Wart, 57 N. J. Eq. 598; Taylor v. Taylor, 73 N. J. Eq. 745; Rector v. Rector, 78 N. J. Eq. 386, 404; Shaw v. Shaw, 89 N. J. Eq. 214; Hyer v. Hyer, 91 N. J., Eq. 147; Howath v. Howath, 91 N. J. Eq. 435; Hahn v. Hahn, 93 N. J. Eq. 296. It is only when the deserted husband .is without fault, and effort to induce the wife’s return would probably prove unavailing, that tire duty imposed upon him to seek her return can be excused. It will be observed that this exception is essentially a recognition or restatement of the principle of the rule already stated, that to be obstinate a desertion of a wife must be such as would resist such efforts and concessions on the part of the husband to terminate it as a, just man ought to have made under the circumstances of the case. Hall v. Hall, 60 N. J. Eq. 469; Norcross v. Norcross, 82 N. J. Eq. 195; Fisler v. Fisler, 85 N. J. Eq. 194, 199; Marsh v. Marsh, 86 N. J. Eq. 419; Fraser v. Fraser, 87 N. J. Eq. 633; Danielly v. Danielly, 93 N. J. Eq. 556; Mayhew v. Mayhew (affirmed), 95 N. J. Eq. 696.

It is clear that petitioner was not without fault, and equally clear that he made no effort to prevent his wife leaving, and has at no time sought her return; nor can it be determined that any reasonable efforts on his part to procure her return would have been unavailing. For over two years prior to the separation petitioner had refused to share his wife’s bed. His testimony is that during that period “he had no use for her as a wife;” he assigns her “uncleanliness” as a reason. Nine months before the separation petitioner admitted to Ms home as a nurse for his invalid mother a woman whose presence he knew would be objectional to his wife. By his own testimony it appears that his wife told him that if he did so she would leave; yet he did so, and retained her there continuously until his wife left, and long thereafter. The day before petitioner’s, wife left him she informed him she was to leave, but admittedly no effort was made by petitioner to dissuade her from leaving him. Nor has petitioner at any time, either at the time of her leaving or since, made any effort to procure her return. During all the period of her desertion prior to the time the bill was filed, petitioner could have found her at any time; during nearly all of that period she lived in the same town as petitioner, yet by Ms own statements he at no time wrote her or in any way sought her return, or even inquired for her. No evidence in the case justifies the conclusion that any conduct upon the part of petitioner’s wife has absolved him from the duty to make concessions or seek her return.

No consideration is here given to the question whether petitioner’s withdrawal from his wife’s bed, or his installment of Mrs. Frambies in the home against his wife’s will, and permitting her to exercise the authority over the household disclosed by the testimony, justified petitiouer’s wife in leaving. The petition will be dismissed for the reason that the evidence does not disclose an obstinate desertion.


author: Beaming, Y. C.

text:
    Thomas D. McGlathery and Wife, complainants, v. Horace Paul Dorman et al., defendants.
    [Submitted December 3d, 1924.
    Determined December 12th, 1924.]
    1. Where a bond and mortgage were given for the same debt by residents of Pennsylvania on property in New Jersey, and after default the mortgage was foreclosed and sale made to the mortgagee under the foreclosure decree, and within six months after the sale the mortgagee entered judgment on the bond in Pennsylvania, by virtue of a warrant of attorney for confession of judgment accompanying the bond, and the mortgagor has paid the judgment, he may redeem the property in New Jersey within the statutory period.
    2. In the circumstances stated in the preceding head note the failure of the mortgagee to give notice of the proposed proceedings on the bond pursuant to P. L. 1907 p. 563; 3 Comp. 'Stat. p. 31/23, cannot deny to the mortgagor the right to redeem.
    3. Act of 18S0, page 256, as amended (3) Comp. Stat. p. 81/20 et seq.), relating to proceedings on bonds -and mortgages given for the same indebtedness, declared constitutional.
    On final hearing on bill to redeem real estate.
    'In this suit a mortgagor seeks to redeem under the provisions of the act of 1880, page 256, as amended. S Qomp. Stat. p. Sl/20 et seq. The defense is primarily based on th.e fact that the judgment, which was entered on the bond after a sale had been made under the foreclosure decree, was entered in the State of Pennsylvania, whereas our statute, authorizing redemption after a foreclosure sale, cannot be construed to contemplate a judgment entered on the bond in a sister state. The act authorizing redemption also is assailed as unconstitutional because of inadequacy of its title.
    .The facts are not in dispute. The parties all reside in Pennsylvania. The bond and mortgae were given for the same debt. TÍhe mortgaged premises are in New Jersey. The bond and mortgage were executed and delivered in this state. After default the mortgage was foreclosed and sale was made to the mortgagee under the foreclosure decree. Within six months after the sale the mortgagee entered judgment on the bond in Philadelphia by virtue of the warrant of attorney for confession of judgment accompanying the bond. Execution Was then issued on the judgment and levy made on Philadelphia property of the mortgagor. The mortgagor has paid the judgment and now seeks to redeem. The present bill to redeem has been filed within the statutory period. No notice of the proposed judgment was filed by the mortgagee pursuant to the act of 1907, page 563. 3 Gomp. Siat. p. 3J£3.

      Mr. Joseph 8. Low, with whom appeared Mr. D. Trueman Stackhouse, for the complainants.

      Mr. Lewis Slarr, for the defendants.
   Beaming, Y. C.

Briefly stated, our statute provides that when a bond and mortgage are given for the same debt, the effect of entering judgment on the bond, after the foreclosure of the mortgage and sale of the mortgaged premises, for any balance of tlie debt, shall be to open the foreclosure decree and sale, and shall entitle the mortgagor to redeem. The act does not by its terms restrict the effect of entering a judgment on the bond to judgments which shall be entered on the bond in this state. Defendants seek to■ read that restriction into- the act by construction. The argument is that legislation is presumptively territorial and confined to the limits over which the law-making power has jurisdiction; hence, the language of the act to the effect that the entry of a judgment on the bond for any balance of the debt, after a foreclosure decree and sale, shall be operative to open the foreclosure decree and sale and permit the mortgagor to redeem, is to be understood as having reference only to a judgment entered in this state. This contention cannot prevail. The general purpose and design of the legislation is to extend to a mortgagor the right to redeem after foreclosure sale, should a mortgagee, after sale, proceed upon the bond for any part of the debt. To read into the act a. provision that this protection of the mortgagor shall obtain only when the .subsequent proceedings on the bond are taken in this state is to defeat the very purpose of the act. It necessarily follows that any recognized presumption that may exist against extra-territorial legislation as a basis for a limitation by statutory construction is overcome by the obvious purpose of the legislation; indeed, the presumption cannot be said to arise in any case in which reasonable and appropriate extra-territorial operation or force of a statute can be said to be inferred from its obvious purpose. Nor has any case been brought to my attention in which the presumption against extra-territorial force of legislation has been made the basis of a limitation of the language of the act by statutory construction, unless the legislation, if given extra-territorial force, will be found to have entered a field of improbable or unreasonable legislative intent or of doubtful right. The statute here in question pursues the legitimate function of prescribing rights and remedies touching property in this state; it in no way undertakes to control judgments entered in another state; the entry of such a judgment after sale is m'erely an event operative to revive the right of redemption. Such a provision is not only a proper and reasonable exercise of legislative right, but is necessary to effectuate the beneficial purposes of the act. In Hutchinson v. Ward, 192 N. Y. 375, this provision of our act is regarded as applying to actions brought on the bond in New Jersey or elsewhere.

The circumstance that defendants failed to comply with the requirements of the supplemental act of 1907 (3 Comp. Stat. p. 3423), can afford them no additional rights. The judgment entered against complainant herein in Philadelphia was enforceable there, and was enforced there against property of complainant herein in that city.

Nor am I prepared to hold that it can be said to be clear that the act here in question is unconstitutional because of inadequacy of its title. The title to the act gives notice that its provisions regulate “proceedings on bonds and mortgages given for the same indebtedness and the foreclosure and sale of mortgaged premises thereunder.” This, I think, adequately discloses the scope of the act.

A reference will be made to a master for an accounting, and a decree of redemption will be entered upon payment of the balance found due.