author: Vrbbenburgh, J.

text:
    Randolph Perkins, appellant, v. James T. McBride, respondent.
    [Submitted July 6th, 1914.
    Decided November 16th, 1914.]
    In an action at law brought by au attorney-at-law against his client to recover his taxed bill of fees, costs and disbursements, the proofs of the service, or delivery, of a "copy of such bill, required by statute to be made prior to the commencement of the action, are conditions precedent to his right to maintain such action before a trial court, and a special plea by the defendant in the action denying such service is nugatory, for the reason that the plaintiff is bound (under the penalty of a judgment against him if he fails) to make such proofs as a part of his affirmative case.
    On appeal from a decree of the court o£ chancery advised hy" Vice-Chancellor Lewis.

      Mr. Randolph Perkins, pro se, for the appellant.

      Messrs. Melosh & Morten, for the respondent.
   The opinion of the court was delivered by

Vrbbenburgh, J.

In an action at law to recover his taxed bill of fees, costs and disbursements, brought by complainant, a solicitor, attorney and counselor-at-law of this state, against defendant, the latter attempted to plead, specially, that he had not been served with any taxed bill before the action was begun, and thereupon the complainant filed the present bill in equity asking, for certain reasons set forth in his bill, that defendant be restrained from such pleading.

A decree dismissing this bill having gone the complainant has appealed.

The petition of appeal before us takes the ground that the decree should be reversed because it failed to adjudge that the defendant should be restrained by the injunction of the court of chancery from pleading and attempting to maintain in the law-court, that he was not served with any taxed bill of fees, costs - and disbursements prior to the commencement of said action.

The meritorious question to be decided is whether in an action at law brought by a lawyer against his client to recover his taxed bill of fees, the proofs of the service, or delivery of a copy of such bill (required by statute to be made upon the client prior to the action), are conditions precedent to the plaintiff’s right of recovery so as to require him to aver and prove such service in the trial court as a part of his case, under the penalty of being non-suited if he fails. If so, then, manifestly, the special plea here sought to be enjoined would have been entirely futile and nugatory, and its restraint by a court of equity wholly unwarranted.

We think our statutes (quoted below) control this question, and sustain the view that in such an action the plaintiff must prove such service as a substantive part of his case before he is entitled to maintain his action.

_ The ninth section of our act to regulate the practice of courts of law (Rev. 1903 p. 538) enacts that

“No solicitor or attorney shall commence or maintain any action for the recovery of any fees, charges or disbursements in equity or at law, against his client or his legal representative until he shall have delivered to such client or his representative or left for him at his usual place of abode a copy of the taxed bill of such fees, charges and disbursements.”

The amending statute of 1911 (P. L. 1911 ¶. 1/.12) enacts that '

“Every solicitor, attorney and counsellor may commence and maintain an action for the recovery of any reasonable fees, charges or disbursements, in equity or at law, against his client or his legal representative, provided he shall have first delivered to such client or his legal representative or left for him at his usual place of abode a copy of his bill of such fees, charges and disbursements.”

The course of judicial decision in this state sustains the view that the plaintiff in such an action must make such proofs as a part of his case, under the penalty, if he fails, of a nonsuit.

In Bently v. Fidelity Company (1907), 75 N. J. Law 829, this court said that as to that portion of the claim of plaintiff for services as attorney “no recovery was possible in the action without a taxed bill of costs.”

In McCrea v. Stierman (1908), 76 N. J. Law 396, the supreme court said that “as no taxed bill of fees, charges and disbursements was ever served, the district court should have non-suited the plaintiff on Ms own case.” See, also, Brown v. Harriott (1910), 81 N. J. Law 484, 486.

The explicit language of the above-quoted proviso in the amendatory act of 1911 strengthens and confirms the view that the burden of making such proofs, as a part of his case, in order to maintain it before the trial court, rests upon the plaintiff, and it follows that the special plea of defendant in the law court was unnecessary and superfluous. The result we reach is that the decree dismissing the bill should be affirmed.

For affirmance — The Chief-Justice, Garrison", Swayze, Tren"chard, Parker, Bergen", Minturn", Kalisoh, Black, Bogert, Vredenburgh, Terhune, Williams — 13.

For reversal — None.


source: Caselaw Access Project

author: Witíte, J.

license: Public Domain

text:
    Dewey Land Company et al., appellants,
      v. Henry E. Stevens, Jr., et al., respondents.
    [Argued July 2d. 1913.
    Decided June 15th, 1914.
    Filed July 6th, 1914.]
    On appeal from a decree of tire court of chancery made by the chancellor.
    (Eor principal opinion see ante p. ñ1.£.)
   Witíte, J.

(concurring).

So far as is essential to an understanding of this case, the facts appear to be that in 1852 Robert B. Leeds owned the entire tract shown on the following diagram, all of which was then fast land. In 1856, after some of it had been lost by the erosion of the ocean, he conveyed it to John McClees, describing it in the deed as bounding on the “edge of Absecon inlet.” After much further erosion McClees, in 1897, conveyed it to the Atlantic Beach Eront Improvement Company, by description also bounding on ihe ocean and inlet. In 1900 the high-water line was as shown on the diagram, and in that year Wm. H. Bartlett, the owner of lot marked B, to which he derived title from the Atlantic Beach Eront Improvement Company, procured, as such owner, a riparian grant from the state for the land then under water included, as shown, within the dotted lines. In 1904, by reason of accretions, the high-water line was as shown on the diagram, and that year complainant received a grant of lot D, title to which also came from the Atlantic Beach Eront Improvement Company. Still further accretions have since occurred and the high-water line is now as shown. In 1911 and 1912 complainant took quitclaim deeds from John McClees and from the heirs of Robert B. Leeds, respectively, for or including the triangle bounded by Hew Hampshire avenue, the eastwardly dotted line of the riparian grant to Bartlett, and the exterior line of the riparian commissioners, and tliat triangle is the locus in quo. Defendants are the grantees from Bartlett of lot B and of the lands granted to him by the riparian grant above mentioned.

1 agree with what is said in the foregoing opinion regarding Attorney-General v. Sooy Oyster Co., 78 N. J. Law 394, and also with what was said as to the grounds stated for the decree from which this appeal is taken. I also agree with what is said to the effect that the recent quitclaim deeds to complainants from the heirs of Robert 'B. Leeds and from John McClees, respectively, conveyed nothing. Yard v. Ocean Beach Association, 49 N. J. Eq. 306.

What is further said in the opinion to the effect that the state acquires title to former East land by reason of its having become submerged as the result of gradual erosion by the ocean is not, as it seems to me, involved in this ease, and while true under certain circumstances and within certain limitations, seems to me to be stated so broadly as to be misleading. If McClees, for instance, had never granted away any of his fast land, but all of it, instead of only a portion of it, had wasted away by the gradual erosion of the ocean, and then, after one or two or three, years, or in fact any period short of that which would vest title in the state or its grantee by adverse possession, it bad reappeared, the question would then be presented whether the new land belonged to McOlees, or belonged to the state, or, as in Ocean City Association v. Shriver, 64 N. J. Law 550, to the state’s independent grantee, if there was one, and doubtless in such case the decision would be, as in the Shrives Case, that it belonged to McClees.

In the present case, however, all of the McClees fast land did not wash away, and the defendants, as well as the complainants, claim under the grant made in 1897 from McClees to the Atlantic City Beach Front Improvement Company of the portion which had not washed away when he made the grant, and the grant, bounded on the “high-water mark of the ocean.” Complainants now own paid of the fast land included in this grant, or part of the subsequent accretions thereto, and defendants another part of such fast land adjoining complainant’s land on the west and extending to the ocean. It is true that defendants acquired from their predecessor in title, Bartlett, the riparian grant which ho had received from the state, but this grant was made to Bartlett as the owner of part (now owned by defendants) of the McClees fast land, and at the time the grant was made it was bounded by side lines at right angles, or, substantially so, to the then shore line at this point, which, so far as the evidence indicates (and subject to the possible objection hereinafter suggested but not involved under the amended complaint in this case), would seem to have been an equitable guide for the division of accretion gains should they occur. No question arises in this case, therefore, of a conflict between the accretions to which an owner of the shore is entitled and land of an independent grantee of the state in front thereof. It will be quite time enough to decide the rights of such a conflict when it shall have occurred.

In Stevens v. Paterson and Newark Railroad Co., 34 N. J. Law 532 (at p. 544), this court said, speaking in an opinion by Chief-Justice Beasley: “From these authorities, and many others which might be cited, it appears to me to be plain, that by the rules of the ancient law, the owner of the land along the shore was entitled to no right as an incident of such ownership, except the contingent ones before referred to of alluvion and dereliction;’ and, again, “if such a right (to build a wharf out beyond the high-water line without a riparian grant from the state) existed by force of the common law, as an incident of property, it is obvious that it could not be destroyed or substantially impaired by the legislature without compensation.” I take it, therefore, that instead of the Stevens Case being an authority to the effect that the state may make a grant to an independent grantee in conflict with the common law right of the owner of the ripa to accretions, it, in effect, says that the right to such accretions is incident to the ownership of the ripa, and that as such it cannot be taken away by the legislature without compensation, and such I understand to be the law in this state. Bell v. Gough, 23 N. J. Law 624.

In apparent recognition and confirmation of this view the legislature has provided, as T take it, that before an independent grantee from the state may fill the land under water in front of. the land of a riparian owner who has failed to taire out a state grant after notice, such independent grantee must extinguish such riparian owner’s right to accretions by paying to him the value thereof, to be fixed by the riparian commissioners, subject to an appeal to the supreme court and to a trial by jury. The theory of this legislative provision would seem to be that the independent grantee from the state of land under water takes what the state had, viz., cm ambulatory boundary, shifting with the high-water line as erosion or accretion takes place, but upon the exercise of the granted right to fill, the riparian owner’s right to accretions would for the first time be invaded, and that then, and tiren only, its owner becomes entitled to compensation. Comp. Stat. p. 4389 § 20.

In Ocean City Association v. Shiver, supra, the strip of fast land retained by the Ocean City Association when it granted lot No. 849 to I-Iowell in 1884, and which intervened between such lot and the ocean, had entirely wasted away by the erosion of the ocean in 1895 so that the ocean washed upon the front part of Howell’s lot. If it is entirely true, as stated, as I think, obiter, in the foregoing opinion in the case sub juctice, that fast land “lost by erosion is lost forever,” and “becomes the property of the state, not while it remains under water, but absolutely,” it is difficult to see why Howell’s, or his grantee, Shriver’s, lot (No. 849) did not become endowed with the ownership of the ripa, and as such entitled to accretions and to take out a riparian grant from the state, and yet this court held in an opinion by Chief-Justice Depue — (1), that it liad not become entitled to the accretions -which formed by the receding of the ocean; (2), that the riparian grant which the state made to Shriver was void, and (3), that the Ocean City Association’s land which had gradually entirely washed away and had been from three to five years under the ocean, so far from having been “lost forever” and from having “become the property of the state, not while it remained under water, hut absolutely,” not only did not pass by the state’s grant of it, but actually belonged to the Ocean City Association, its former owner, when, within the period involved in. that case, it reappeared by accretion, and this in spite of the fact that such former owner had nothing in the way of fast land to which the accretions could attach, and had received no grant from the new “absolute owner,” the state. The only view consistent with such a result would seem to be the one stated by Chief-Justice Depue in that case as the solemn determination and adjudication of this court, viz., “that by the submergence the owner of the land does not entirely lose his property in the soil.” Does not entirely lose it! Clearly, this intimates that something is lost and says that something is not lost. What is it that is, and what is it that is not, lost ?

I take it that what the owner has lost is his possession of his land, which has passed into the adverse possession of the state. I think the state’s possession is adverse because it consists, under what is called the New Jersey doctrine, not only of the public rights of navigation, fishery, &c., upon and in the waters which overflow the submerged land, and which the state holds in trust for the use of the general public, but also of the emblem or sign of that ownership of the soil under navigable waters which was anciently part of the private regalia of the King of England (until abridged by Magna Gharta, after which it was supposed it might be exercised by parliament), and which, as may be considered as now settled in this state, is vested in the State of New Jersey, and is within the exercise and control of its legislature. Stevens v. Paterson and Newark Railroad, supra; Paul v. Hazleton, 37 N. J. Law 106; Wooley v. Campbell, 37 N. J. Law 163; Hoboken v. Pennsylvania Railroad Co., 124 U. S. 656.

I think that what the owner has not lost is his right, within the statutory period in this state, to toll the running of such adverse possession and defeat its ripening into absolute ownership, by regaining possession of his land, not by bringing an action of ejectment, because such would be inadequate now, as in the days of King Canute, to stay the action of nature, but by actually ejecting the ocean from his land and restoring it by artificial means to its former condition as dry or fast land, or by having it, within the like period, restored to him through the voluntary action of nature should the ocean within that time recede. Ocean City Association v. Shriver, supra.

Such a view, taken in connection with the other familiar doctrine which saves the rights of the public against loss from adverse possession (Hoboken Land and Improvement Co. v. Hoboken, 36 N. J. Law 540), would return to the use of the public upon its reappearing from the sea, for instance, the portion of New Hampshire avenue south of a point about three hundred feet south of Pacific avenue, to which point the high-water line had encroached in 1900 when the state made a riparian grant for, mter alia, what was, before it was submerged, the bed of New Hampshire avenue south of that point. New Hampshire avenue was dedicated as a public street to a distance of one thousand five hundred feet or more south of Pacific avenue by the ancient deed and map (“Rowland’s”) of dedication of April 15th, 1853, executed by Robert B. Leeds and others at a time when the fast land extended one thousand five hundred feet south of Pacific avenue. If it be true that in 1900, when this fast land had so wasted away that only about three hundred feet of the one thousand five hundred feet remained, the state became the owner, not merely while it remained under water, but “absolutely,” of the land so submerged, and, while such owner, granted the submerged bed of New Hampshire avenue in 1900 to the predecessor in title of the defendants in this case, it is difficult to see just how the public, has regained its Tights in the portion (now about six hundred feet in length and continually increasing) of such bed so granted which has now been restored by the recession of the ocean and is used and improved as a public street.

But, however that might be, and returning to the question of whether there is involved in this case a conflict between the accretion rights of an owner of the shore and rights under a state riparian grant to an independent grantee of land in front of such shore, no one pretends that in the present ease the riparian grant by the state to the defendants’ predecessor in title, Bartlett, was intended as or was a grant of any land under water not in front of and adjacent to the grantee’s high land at the time the grant was made. It was expressly made to depend upon his ownership of such high land. In other words, it was expressly confined in its limits to the area which in case of natural accretions would become a part of such high land by virtue of the law of accretions according to the location of the high-water line as it existed at the lime of the grant. Gould Wat. § 163; Clark v. Campau, 19 Mich. 327; Stone v. Boston Steel and Iron Co., 96 Mass. 230. Of course, changes are constantly taking place in the high-water lines and in the direction thereof. A shore which one year was concave in its contour may a year later have become convex. The resultant effect upon lines projected at right angles to it at various points during the process of transition to determine boundaries between neighboring accretion gains, is hopelessly‘confusing and the consequent state of uncertainty in titles most injurious. A practical working system is necessary for the good of all, and where such a system has been established its fairness must be more than questioned, in fact, must be clearly overthrown, before the courts will feel justified in intervening. Such a working system seems to have been, adopted by the riparian commission under its appointment by, and within the discretion vested in it, by the sovereign power of the state. Under this working system, it takes the line of general contour of the shore in the vicinity, and, disregarding local or trivial or temporary indentations or excrescences, runs its division lines at right angles, or as nearly at right angles as is equitable under the circumstances, to such general line of contour al the time it takes up the subject of making riparian grants in such vicinity, and, then, subsequently, adheres as nearly as possible, or as is equitable, to the general division lines thus established, without regard to the fact that subsequent shifting of angles and locations of the high-water line may have brought about a condition, which, if it had existed originally, would have produced different results in the directions of such division lines. Not only do I fail to sec any unfairness in this working system, but, on the contrary, I cannot see liow any other could he practical. Where, therefore, as here, the riparian commission has made a grant, the hounding division or side lines of which run at right angles, if that is equitable, or if not, at such angle as, under the circumstances, is equitable, to the general contour of the shore at the time of the plotting or surveying of the vicinity for riparian granting, such lines will, I think, be upheld by the courts as a practical and legal ascertainment of the boundary lines of subsequent accretion gains to the adjacent high land should such gains occur. Gould Wat. §£ lfíü, 103. This is so, I take it, not because the state, through the riparian grant, has vested in its grantee a title to land under water which survives when the land by accretions to the adjacent high land has ceased to he under water, hut because the riparian grant, as here made, is by its 'very authority confined to the land under water in front of the grantee’s adjacent high land, viz., to the land which would become his by accretion to such high land should natural accretions occur, and, consequently, the division boundary lines defined in the grant are an authoritative ascertainment by the granting tribunal of the boundary lines of those accretion gains should they occur. Gould Wat. § 162.

That ihis must be so' seems to me apparent front the fact that the law under which riparian grants arc made secures to the owner of the ripa, the first right, during a stated period after notice, to receive a grant for the land under water in front of his high land. Surely, if one, owning land fronting on the ocean, in taking out a grant from the state of land under water in front of it, instead of having the side jincs of the grant run substantially at right angles to the shore line, should have them run at an angle of ten degrees with the shore line and in front of the shore land of his neighbor who had received no notice and opportunity to take out his riparian grant in front of his land, such neighbor would have a perfect right to complain that he had been deprived of the privilege which this law secured to him, and of his common law right to the natural accretions to his land, without compensation, and, of course, to that extent the grant would he void. I taire it, therefore, that now that new fast land has been framed by accretions to defendants’ upland, the riparian grant in this case can only lawfully include the portion of such fast land which, under the law of accretions, might properly have become the property of the defendants without such riparian grant.

Whether, under this view, lire state’s grant to Bartlett is valid, in so far as it includes land on the opposite side of New Hampshire avenue from the location of the grantee’s high land at the time the grant was made> is not before the court, because complainant sets up no title thereto except the recent McOlees and • Leeds’s heirs deeds, and these, obviousty, conveyed nothing. If complainants have any title to the locus in quo, it must be by virtue of its being an accretion to their high land on the east side of New Hampshire avenue, and the efficacy of such a claim of title would necessarily depend upon whether the owner of the former fast land, as it existed in 1853, in then dedicating and opening a public street, New Hampshire avenue, across the same, ~ to and at right angles to the ocean, had so divided his land into two parts and fixed the natural side lines o£ accretion gains for those parts, respectively, as to have rendered it inequitable for the state to have disregarded the lines so fixed in making its subsequent survey and grant. Valentine v. Piper, 22 Pick. 95. But, as before stated, that question is not, in my judgment, involved in, and is therefore not decided by, this case.

I concur, therefore, in so much of the foregoing opinion as holds that complainants are not entitled to a decree in their favor because the only title they set up> viz., the recent Leeds’s heirs and McClees’ deeds, has no substance, as the grantors in those deeds had nothing to convey (which 1 think is the only point involved in this case), but for the reasons herein stated I dissent from so much of that opinion as says (as I think, obiter), without proper qualification, that land “lost by erosion is lost forever,” and “becomes the property of the state, not while it remains under water, but absolutely.” If these assertions had been pertinent to the issue involved in this case, 1 take it that the first one, that land “lost by erosion is lost forever!,” should have been qualified by the insertion after the word “erosion” of the words “and remaining submerged by tidewater for twenty years,” or words to that effect, and that the second one, that such land “becomes the property of the state, not while it remains under water, but absolutely,” should have been qualified by adding thereto, what is stated in an earlier part of that opinion, viz., that such ownership is, of course, subject to invasion by accretions to the adjacent high land, which, should they occur, would belong to the owner of the ripa, unless lie had been deprived of the right to them by proper proceedings and upon due compensation.


author: Per Curiam.

text:
    William E. Tuttle et al., respondents, v. Benjamin S. Harris et al., appellants.
    [Argued June 19th, 1914.
    Decided October 16th, 1914.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, who filed the following opinion:
    The complainants in this case have brought suit at law on a mechanics’ lien claim against the defendants Apgar -Brothers, as builders, and defendant Harris as owner. In this action defendant Harris pleads (among other defences) a release of the lien by complainants. This bill was thereupon filed by complainants charging that the release was obtained from them by fraud of Apgar Brothers, praying its cancellation and that the defendant Harris may be enjoined from setting it up as a defence in the suit at law. The fraud claimed is that the release was signed by complainants on the application of Apgar Brothers, who at the time represented to them that,-on presenting the release signed by complainants to Harris, the owner, Apgar Brothers would receive from Harris about $550, the balance due them on their contract with Harris, and would pay $500 of this to the complainants. It is claimed by the bill that at the time of making these representations Apgar Brothers had no intention of paying to complainants the money promised; that immediately after obtaining complainants’ signature to the release Apgar Brothers procured the signatures of other lien creditors to the release, upon the same representations and promises to them respectively. The bill further charges that the release, which was executed by complainants on the 11th of November, was not delivered to the defendant Harris until the 20th of November following. At the time the complainants signed the release they supposed that the contract between Apgar Brothers ancl Harris had been filed, and on November 18th, 1907, they served a stop-notice on Harris, but on the 21st of November notified defendant Harris by letter that the release was signed by them on the understanding that the sum of money amounting to about $500, which the Apgars expected to receive from him (Harris) on the strength of the release, was to be paid at once to them, that they found Apgar obtained signatures from other parties on the same representation, and that as the release was obtained from them by fraud and had never been delivered to Harris by them, and as no money had been paid to them on it, they notified Harris to pay no money to' Apgar Brothers, or to any person for them on account of the construction of the defendant’s house. Defendants Apgar Brothers deny specifically any false or fraudulent representations to complainants in order to secure the release, and deny representations or promises of any kind to complainants or any other lien creditor to secure it, alleging that it was signed by complainants and the others on presentation and in the ordinary course of business— that on delivering the release to defendant Harris, the latter, relying on its validit3r, gave them a check for a portion of the amount due and promised to pay the balance in a short time. Defendant Harris, denying any knowledge or information of the transaction between complainants and the Apgar Brothers relating to the execution of the release, says he received the release and paid out money thereon, relying on its validhy, before he received any notice from complainants that its execution was claimed to be fraudulent. The amount of money paid by Harris to the Apgar Brothers on receiving the release is not set out in the answer of either defendant, but on the proofs it appears to have been a payment of $75 only to one of the Apgar Brothers. The balance due on the contract was paid into this court by Harris on December 3d, 1907, upon his filing a bill of inter-pleader, the proceedings in which have been introduced into this suit by the pleadings and proofs. This interpleader bill was filed against Apgar Brothers and against the complainants and the Loizeaux Lumber Company and W. L. Larrabee, other creditors, who had served stop-notices, and also against Larrabee as claiming to be an assignee of the contract under an assignment from Apgar Brothers to him, dated November 22d, 1907, and upon which he commenced an action at law on November 27th. On filing this-bill and upon paying into court the amount admitted to be due under the contract ($548.50), an ex parte interlocutory injunction was obtained against Larrabee’s prosecution of his suit. The interpleader bill prayed decree discharging Harris from all liability to any of the defendants, upon this payment into court. The interpleader bill prayed no injunction against Tuttle Brothers, the complainants,- but subpoenas on the bill were served upon them on December 7th. On December 10th complainants commenced their suit on the lien claim, and on the filing of a supplemental bill December 17th, an interlocutory injunction against the prosecution of this suit was issued, but at the hearing of the interpleader suit this injunction ivas dissolved for the purpose of allowing the suit on the lien claim to be pursued. This was upon the ground that the contract not having been filed, the lien claimants could not be required to look to the contract price in the hands of the owner or paid into court on an interpleader. Schmidt v. Eitel (Chancellor Magie, 1905), 70 N. J. Eq. 8; Summerman v. Knowles (Supreme Court, 1868), 33 N. J. Law 203; Beckard v. Rudolph (Court of Errors and Appeals, 1905), 68 N. J. Eq. 740, and cases referred to on p. 71th. The stop-notice given by complainants, it was also held, did not release the lien or slop complainants from afterwards bringing suit on the lien claim. And at the hearing of the interpleader suit, it was directed that for the purpose of protecting the equities of all parties the further hearing of that cause stand over to await the final determination of the lien suit. The issue now, therefore, is upon the validity of complainants’ claim to set aside, as against them, the release of lien pleaded in the suit. There is contradictory evidence upon some of the issues, but as to what* seem to me the controlling facts, there is little controversy.
    The firm of Apgar Brothers was composed of two members, George I. and Theodore Apgar. Complainants, William E. Tuttle, Jr., and Arthur D. Tuttle, partners as Tuttle Brothers, had furnished materials to Apgar Brothers for the erection of defendant Harris’ house, and on November 11th, 1907, the amount of their claim was about $727.65. On or about that date Theodore Apgar; applied to Tuttle Brothers to sign a release of lien in order that he might get from the owner, Harris, the balance which was coming to him on the contract, which was stated to be about $550. Theodore Apgar, as I find, conversed with both of the complainants about signing the release, for, although he says that he had no conversation with Arthur Tuttle, Arthur’s testimony is positive on the point that he refused to sign without waiting to speak to his brother about it, and that when his brother came in the conversation of Theodore Apgar was with his brother and in his presence, and Ms brother William then signed the release. William E. Tuttle corroborates this statement. All three agree that .in the conversation before the release, Theodore Apgar promised William E. Tuttle to give him $500 as the consideration the Tuttles were to get for the release. The Tuttles say that Apgar told them the money was ready and he could get it on their signing a release, and that he would get the money and bring it directly to them. I think there is no question that the release was signed upon the statement and promise of Theodore Apgar that the money due from Harris, about $550 or $600, was ready to be paid over, and that $500 of this money would be paid to Tuttle Brothers. William E. Tuttle then signed the release in the firm name of “Tuttle Bros.” and delivered the release to Theodore Apgar. There does not appear to have been any conversation at that time about procuring any other signatures to the release and there were no other signatures on the paper at the time the Tuttle Brothers signed it. The release, however, was on a regular form of release of lien prepared by the attorney of Harris, or delivered by Harris to Apgar Brothers, for the signatures of several lien claimants, and the releasors became formal parties only .by the signatures, their names not appearing-in the release itself. The release recited the contract between Apgar Brothers and Harris for the building, and that “we the undersigned have done work and furnished materials for the erection and construction thereof,” and that in order to enable the contractors to collect and receive the contract moneys due them, and in consideration of one dollar, the subscribers jointly and severally released and discharged the building, &e., from any and all liens under the Mechanics’ Lien law, for the payment of any debt contracted and owing to them for labor performed or materials furnished for the erection and construction of such building. On November 14th, three days after the delivery of this release to Theodore Apgar, and as the money had not been received, Arthur Tuttle applied to both Theodore and George Apgar, who were then together, and asked them about the Harris money, but did not then get any money. The important feature of this evidence is that George, the other partner, then and before the procuring by him of the Loizeaux company release, knew of the Tuttle Brothers’ release and of their expectation of receiving money. Between November 14-th and 18th signatures of labor men, whose claims seem to have been paid, were obtained, and on November 18th George Apgar took the release to the Loizeaux company, materialmen to whom Apgar Brothers then owed about $500 on the Harris contract, and procured the signature of this company to the release, upon the promise to pay the company the money due them. This is the statement of Mr. Loizeaux, and his evidence impressed me as reliable. George Apgar’s ■ statement is that he did not promise Loizeaux to pay him all the money due the company on the job, but that he promised, if the release was signed, to pay off a note previously given to the company, which came due on that day. What the amount of this note was, or whether any note was paid that day by the Apgar Brothers, does not satisfactorily appear, and George’s statement is not corroborated. Between the time of getting the signatures of the Tuttle Brothers and the Loizeaux company to the release, the signature of Larrabee, a materialman whose claim of $543 had not been paid, had also been obtained. On procuring the Loizeaux company release, George- Apgar delivered the release to Harris, the owner, on the same day, November 18th, and received from him $75. George further swears that at the time of delivering the release and receiving this payment on account he told Harris that he wanted the rest of the money to go to Mr. Larrabee, and on November 22d Apgar Brothers assigned the money due on the contract to Larrabee. It seems to mo clear that the release signed by Tuttle Brothers and delivered to Harris, the owner, under these circumstances, cannot be set up by Harris as a discharge of the lien. To the extent that Harris has acted on the faith of the release — that is, to the extent of the payment of $75, lie is a bona fide purchaser without notice, and he is entitled to be indemnified or reimbursed, as a condition of delivering up or canceling Tuttle Brothers’ release, but the release was without any consideration, so far as the Tuttle Brothers were concerned, except the promise of Theodore Apgar, one of the partners, acting for the firm, to pay $500 on account of their claim, out of the money to be paid to them by Harris. The release when delivered to this partner, Theodore, was held by him on the faith of this promise and of the intention to carry it'out, and when George, the other partner, received the release from his brother, he was bound by his partner’s acts 'and assurances in obtaining the release, and was also bound not to deliver the release unless at the time of delivery he had the intention of carrying out the promise. The Apgar Brothers held the release not as agents of the owner, I think, but as' acting for the Tuttle Brothers, in its deliver}' to the owner, and as to ihc conditions and objects of the delivery each of the partners was bound by the acts and promises of the other up to the time of the deliver}' to the owner. Joint action and representation by both partners, either to the Tuttle Brothers or the Loizeaux company was not necessary in order to make the delivery of the release (which became effective only by delivery to Harris) fraudulent against Tuttle Brothers.
    If at the time of the delivery of. the release by George, one of the partners, to the owner, it is apparent from the evidence that the partners did not then intend that any of the money should be paid to Tuttle Brothers, then the deliver}' of the release was fraudulent against them, because it was not then intended by the partners to carry out the promises on which it had been procured for deliver*}'. The main contention for the defendants has been that there was no proof of anything but a breach of promise by Theodore, which was admitted, but if I am correct in my view of the real nature of the transaction, and that the real question is whether at the time of the delivery of the release to the owner the pal-tael’s had no intention of carrying ont the promises to Tuttle Brothers, made to induce their signature to the release, then the actual participation or knowledge of George as to the promises made by the other partner is immaterial. The fraud of the partners consisted in the delivery of the release by one of them on behalf of the firm, with an intention at the time of delivery, of not doing the thing, the performance of which was the inducement to complainants to sign the paper for delivery to the owner, and without which inducement the paper would never have been in the hands of the partners as the agents of complainants for delivery to the owner.
    As I have before stated, I think the contractors in delivering the release to the owner were to be considered as agents of and acting for the releasors, but if it be considered that under the facts of the case the contractors were the agents of the owner to procure the release for him, as a condition of payment, the equities of the case in reference to the cancellation of the release are not changed, but are rather strengthened. Por if the owner’s agent has procured the release by fraud, the owner upon being informed of the agent’s fraud, cannot in equity insist upon taking advantage of it and hold the benefit of it. If he does3 it becomes his own fraud. 8 Pom. JSq. Jur. § 909.

    It was also contended for the defendants that by reason of the stop-notice served by complainants on the owner on November 18th, 1907, the complainants arc estopped from setting up the lien. Subsequent to this notice, however, and before the owner had made any further payments to the contractors on the faith of the release, the complainants by their letter of November 21st, notified the owner that tire release had been fraudulently procured The bill of interpleader was filed shortly after receiving this notice (December 3d). The ex parte payment into court of the balance of the money after the receipt of the letter was at complainants’ risk and cannot be considered as a payment to the contractors made in good faith relying on the validity of the release. When the point was raised in the interpleader suit that the stop-notice was a bar to the action on the lien, I held that fact that the suit on the lien was not brought until after filing the original bill of interpleader might affect the question of costs, but did not destroy the lien claim if it existed or entitle complainants to insist, on any estoppel beyond the costs incurred while they were apparently relying on the stop-notice. T still adhere to this view.
    I will advise a decree directing the cancellation of the release so far as complainants are concerned and that the defendants be enjoined from proving the paper in question under the plea of release. At the time of settling the decree counsel may also apply in the interpleader suit for such further order or decree as may be proper in view of the decree here advised.
    On the rehearing in this cause two questions were argued — ■ first, the agency of Apgar Brothers in the delivery of the release of complainants to Harris, the owner, and second, the effect of complainants’ payment of money into court in the interpleader suit.
    On consideration of the arguments and briefs of counsel on the rehearing, I still adhere to the view taken in the conclusions upon both these points. On the first point, it is now insisted on the rehearing that Apgar Brothers were the agents of Harris, • the owner, and that Harris, the Owner, at the time of receiving the release, not being informed as to any conditions attached to its delivery by the agreement between complainants and Apgar Brothers, is entitled to hold the release as operative according to its terms. On the assumption that Apgar Brothers in delivering the release were complainants’ agents and not agents of the owner, it is not a question of the effect of special conditions to the agent uncommunicated to the third person who is about entering into obligations on his part or changing bis status at the time of the delivery of the release by reason thereof, but it is a question of now giving the owner without consideration the benefit of the agent’s fraud on his principal. To the extent that the owner has acted on the faith of the release of the complainants, he is a bona fide purchaser for value, entitled to protection, but beyond this, he is claiming for his own benefit without consideration and against the principal, the protection of the agent’s fraud on the principal. The principle of special agency or instruction is not involved.

      As to the effect of payment into court by complainant in the interpleader suit, the mere payment into court on an ex parte application did not extinguish complainants’ right to the money. This may be effected by the decree of interpleader, made after hearing parties on the right to interplead and settle their rights to the fund and discharging complainant from liability. Chosen Friends v. Bennett (Vice-Chancellor Van Fleet, 1890), 47 N. J. Eq. 39, 41; Willison v. Salmon (Court of Errors and Appeals, 1889), 45 N. J. Eq. 257, 264. But such effect cannot be given to the ex parle preliminary order for payment.
    In the interpleader suit no decree for interpleader has yet> been made, and the hearing of that suit (until further order) stands over to await the judgment in the lien suit. If the bill of interpleader be dismissed on the hearing, then Harris, the complainant, will be entitled to the repayment of the money paid into court by him to procure the injunction. Blennerhasset v. Scanlon (Ir. Chan.), 1 Hogan, 363; cited 4 Chit. Eq. Dig. 3134-1; Hoggart v. Cutts (1841), 10 L. J. Ch. (N. S.) 314.

    Decree in accordance with the conclusion sent to counsel will be advised, and will be settled on motion day, September 9th, unless agreed to by counsel before that date. '

      Mr. J. Henry Crane, for the respondents.

      Mr. Paul Q. Oliver, for the appellants.
   Per Curiam.

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

For affirmance — The Chief-Justice, Garrison, Swanze, Trenci-iard, Parker, Bergen, Minturn, Kalisci-i, Black, Bogert, Vredenburgh, Heppenheimer, Williams — 13.

For reversal — Fone.


text:
    William K. Haines, appellant, v. Henry C. Roydhouse et ux., respondents.
    [Argued June 29th, 1914.
    Decided November 16th, 1914.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, who filed the following opinion:
    As I view this case the primary question is whether a contract between a husband and wife of the nature of the contract set forth in the sixth paragraph of the answer is a valid contract based upon a valuable consideration.
    If such a contract is to be regarded as supported by a valuable consideration, then the deed made in August, 1910, to correct an error in the deed previously executed in an attempted fulfillment of that contract is supported by that consideration, otherwise it must be regarded as a voluntary conveyance and void as to then existing creditors.
    The prior deed cannot be challenged, as no creditors then existed. But if the prior deed is to be regarded as a gift it can only stand as against subsequent creditors to the extent that it became an executed gift. The subsequent conveyance must, therefore, be regarded as a gift and as void as to then existing creditors, unless supported by a valuable consideration.
    •But regarding the original contract as supported by a valuable consideration, the deed which was intended to convey a fee in fulfillment of that contract and which by mistake conveyed only a life estate will in equity be regarded as conveying a fee and the subsequent deed will, in such case, be treated as merely a correction of the mistake in the former deed. In that view the discharge of the encumbrance on the property between the dates of the two deeds becomes immaterial, for no creditors then existed to render it improper for the husband to make such a gift to his wife.
    A motion against the answer was heretofore heard by me in this suit. At that time I filed the following conclusions:
    “I am unable to regard the question presented by the present motion as an open question in this court, for, in Barbour v. Barbour, 49 N. J. Eq. 429, a contract similar to the one stated in the answer was sustained as supported by a valuable consideration. The decree in that case was reversed by the court of errors and appeals (51 N. J. Eq. 267), but the reversal was by reason of inadequacy of the evidence to sustain the contract.
    “In the several cases cited in which contracts of this nature have been sustained and declared to be supported by a valuable consideration by reason of the surrender of valuable pecuniary rights upon the part of the wife litigation appears to have existed between the parties and the contracts have accordingly included the element of settlement of a pending suit. But I am unable to discern any satisfactory theory upon which the wife’s rights should be regarded as less substantial before a suit is instituted in her behalf for the enforcement of rights which she admittedly possesses than after such a suit shall have been actually brought.
    “The second conveyance, if made in good faith, was merely a correction of an error in the earlier conveyance. If the wife was entitled as of right to a conveyance in fee at the time the earlier conveyance was made she was obviously entitled at the time the later conveyance was made to a correction of the error.
    “I will advise an order denying the motion.”
    I am unable to modify the views then expressed by me.
    At final hearing it was stipulated that the averments of paragraphs 7, 8, 9 and 10 of the answer were true. These paragraphs of the answer disclose that the contract was in fact made and that the deed which was executed in supposed fulfillment of the contract by mistake conveyed only a life estate. The only infirmity in the original agreement which can therefore be now relied upon by complainant is its want of valuable consideration. That question, as already stated, I cannot consider an open question in this court.

      Nor do I think that the evidence justifies the conclusion that the last deed was not made in good faith to correct the error in the former deed.
    I will advise a decree denying the relief sought by complainant.

      Messrs. Davis & Davis, for the appellant.

      Mr. Ralph N. liellam, for the respondents.
   Per Curiam.

We agree Avith the vieAvs expressed by the vice-chancellor as to the legal questions in the case. We differ Avith him as to the facts. Our difference really turns upon the construction of the admissions made by counsel for the defendants at the hearing. He admitted the correctness of paragraphs 7, 8, 9 and 10 of the answer. If this portion of the answer set forth that the agreement of husband and wife in 1902 Avas to convey the fee-simple of the farm, and that both supposed the deeds conveyed a fee-simple, the defendants would have established a proper case for reformation and the deeds of 1910 would be valid. As we read the answer, it rather skillfully avoids setting forth an agreement for the conveyance of a fee-simple. It alleges the wife’s forgiveness of her husband in consideration of his promise of future fidelity and the conveyance to the wife of the farm; that in consummation of ihe agreement, the deeds of 1903 were executed. This would all be true if the agreement was only to convey a life estate to the wife; it Avould not, to say the least, be strictly accurate if the agreement was to convey a fee, since it could not he said that the conveyance of a life estate was in consummation of such an agreement. That the draftsman of the ansAver understood well the distinction between conveyance of a life estate and of a fee is shown by the later averment that the wife accepted the deed as fulfilling the terms of the agreement, “believing that the legal effect of said deed Avas to vest in her the fee.” This fails to negative knowledge on the part of the wife of the language of the deed and alleges only a belief as to the legal effect; it is consistent with the view that her mistake, if she made one, was a mistake of law; or with the view that she did, in fact, as the answer says, accept the deed as fulfilling the terms of the agreement, knowing its contents but resting upon her belief in its legal effect.

That this construction of the answer is not too precise or overnice is shown by what in fact took place at the hearing after the admission was made by complainant’s counsel. The vice-chancellor at once asked whether the admission included the error of the scrivener and the execution of a new deed; counsel for defendants answered, “No. Do you want to include that also;” and counsel for the complainant said, “No; I am not willing to admit that.” Then after a little further colloquy, Mr. Davis said: “That is not admitted; the mistake of the scrivener is not admitted,” and Mr. Kellam said: “I guess we had better prove our case, because this admission seems to be a matter of considerable doubt.” Later in the case Mr. Davis again repeated that he did not admit that the first deed was a mistake.

The defendants proceeded in the effort to prove the mistake despite the alleged admission. In this we think they failed. Proof must be clear in order to make' a case for reformation of a deed. Here we have husband and wife conveying a. life estate to the wife through an intermediary by á deed which on its face and in so many words conveys the land to the wife “for and during the term of her natural life and after her death” to her husband by name. The same language is repeated in the habendum, and the covenants run to the wife “for life.” A layman could hardly fail to see by an examination of the deed that the wife took only a life estate. It is very different from a ease where a life estate arises from the omission of words of inheritance. This deed is delivered in 1903 to a wife who has just condoned her husband’s adultery in consideration of his promise to amend and of this very conveyance. She would be free from the ordinary human suspicion if, under such circumstances, she did not examine the deed. No question is raised until financial difficulties of the husband are impending, and even on the hearing the husband testifies that the first deed was exactly what he promised to give her, while their joint answer seems to evade with some skill an averment that there was a mistake of fact. We think the evidence falls short of that clearness which the law properly requires before a deed can be altered. The decree must be reversed, with costs, and a decree made in accordance with the prayer of the bill.

For affirmance — The Chief-Justice, Trencitard, Black, Vkedbnburgh — 4.

For reversal — Garrison, Swayze, Parker, Bergen, Kalisch, Bogert, Heppenheimer, Williams — 8.


text:
    Munn & Company, respondent, v. The Americana Company et al., appellants.
    [Argued June 30th, 1914.
    Decided November 16th, 1914.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery.

      Mr. Franklin W. Fort (Mr. Arthur lit Hasten and Mr. Sinclair Hamilton on the brief), for the respondent.

      Mr. Conover English (Mr. Boberl H. McCarter on the brief), for the appellants.
   Per Curiam.

. This is an appeal from the order for an accounting and is a branch of the litigation involved in our opinion reported ante p. 809. We think the reasoning of that opinion precludes any right to an accounting. It is true that on its face the contract is not illegal, since it might have been performed without the fraud upon the public which we thought precluded any right to an injunction on the part of the complainant; but, as we held, the scheme of the complainant and defendant was based upon the combination to mislead the public into buying the books upon the reputation of the Scientific American. We cannot distinguish in principle between this ease and Somers v. Johnson, 70 N. J. Law 695. That was a suit at law, but the difficulty in the complainant’s way is as great in equity. The decree must be reversed, with costs.

For affirmance — None.

For reversal — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Mintuen, 'Kaltsc-h, Black, Bogeet, Vredenburgh, Hepegnhelm.br, Williams — 13.


text:
    Williams Allen Hunt, appellant, v. George F. D. Trask, trustee, &c., respondent.
    [Argued July 1st, 1914.
    Decided October 16th, 1914.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported ante p. 5%1, sub nom. Battery Parle National Banlc v. Hunt.

      Messrs. Lum, Tamblyn & Colyer, for the appellant.

      Mr. William L. Rae, for the respondent.
   Per Curiam.

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

For affirmance — The Ci-iiee-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisoh, Black, Bogekt, Vredenburgh, Williams — 12.

For reversal — Hone.


author: Pee Curiam.

text:
    Carlotta Heath, appellant, v. Frederick R. Maddock, executor, &c., respondent.
    [Argued July 2d, 1914.
    Decided November 16th, 1914.]
    On appeal from a decree of the court of chancery advised by Advisory Master Magie, who filed the following opinion:
    Of the issues presented by the pleadings, nothing has been laid before me except the accounting of the defendant as executor and trustee of Margaret C. Heath, deceased, under her testamentary dispositions contained in her will and four codicils. Testatrix •died March 18th, 1906, when complainant, her granddaughter, was about thirteen years old. The will and codicils were proven in Essex county by Charles T. Glen aDd defendant, who hy the fourth codicil were made executors, trustees and guardians of complainant. Ho inventory of the estate was filed until about October 1st, 1911, when defendant (who had survived Mr. Glen) filed an inventory and also his account in the orphans court of Essex county. By an order made in this cause that account has been brought here for settlement, with the consent of counsel of both parties.
    Before the matter was presented to me the account was referred to an expert accountant, who examined it and reported thereon. By his report the defendant had charged himself correctly except an overcharge of $27.48; the correct amount of charges being $153,360.20. The payments claimed by defendant in his discharge were reported as exceeding the correct amount by $14.15, reducing the discharges to $29,544.70, and the total amount stated by the expert was $115,038.78, of which $111,838.43 was corpus and the remainder was income. This report has not been criticised in the case and must stand as the basis of settlement of the account, unless complainant’s claim to surcharge defendant has been made good.
    • The complainant’s claim is that defendant wasted her estate under the following circumstances:
    By her last will, testatrix provided that defendant should continue to live in the house, left with its contents to the complainant, her granddaughter, with the husband of testatrix and the granddaughter until the granddaughter arrived at the age of twenty-one years, and free of charge, provided defendant remained single. After the death of testatrix, defendant continued to live, free of charge, in the house with the complainant until he married in the spring of 1910. At that time Mr. Glen had died, and defendant proposed to send complainant to a boarding school. It then became a question whether the house should be closed, or should remain occupied as a home to which complainant might return in her vacations. Looking at the financial condition of this school girl, and the friendly relations between the parties, defendant exercised his discretion to keep open the house as a home for complainant. I think the discretion was reasonably exercised. While the defendant had lost, by his marriage, any right to live free in the house, there was nothing in the will forbidding him to occupy the house or to take his wife there. By tire first clause of the second codicil, testatrix committed to defendant the sole charge of the house and the manner of living and of the education of complainant. This duty he could better perforin by continuing to reside in the house.
    Under the advice of counsel, on the 15th day of May, 1909, he took up with his wife his abode in this house, to the apparent satisfaction of complainant, and continued there until the 30th of September, 1911. He recognized that he was not entitled to live'there free of charge, at the expense of complainant, and he concluded that he would contribute a share of the expenses of the establishment by purchasing, with his own funds, the principal part of the food for the household. Whether or not this was an arrangement entirely judicious for a trustee to make may be doubtful. He obtained lodgings and board in a comfortable house, with the use of many improvements. But when it is considered that under his deliberate judgment it was wise to keep the house open for his ward’s benefit, T have reached the conclusion (contrary to my first impression) that the question is not what he ought to be required to pay to the estate for the advantages he had, for, if he had not occupied the house it is obvious that, under the circumstances, he could not have utilized the house to complainant’s benefit, but whether the amount he contributed was sufficiently large to prevent any encroachment upon the expenditure of the complainant for the preservation of the house as a home.
    Without going into details, 1 state the conclusion I have arrived at to be, that the contributions of the defendant were, in fact, sufficient, and that his account ought not to be surcharged with anything on this matter.
    The other matter submitted to me relates to the commissions of the defendant.
    By the will of Mrs. Heath there was a bequest to defendant of $9,000, “in full settlement of all claims and demands of every kind and nature against my estate, except such as are provided for in this my will.” There was the further provision, as before stated, giving to the defendant the privilege of living in the house free of charge until complainant became twenty-one years of age. There was a further provision giving each of her executors $500 “in lieu of further commissions or allowances.” By the fourth codicil to her will testatrix gave each of her executors, viz., defendant and Charles T. Glen, the sum of $500 “in lieu of further commissions.”
    About the time defendant filed his account, he filed with the surrogate a writing renouncing all claim to the specific compensation given by the will and codicil.

      It- is now contended that this renunciation requires that defendant should pay back to the estate of his ward the $9,000 (which he received as a legacy) with interest, and also compensation for the period of time he lived in the house free of charge, on the ground that both these provisions were for commissions and allowances to him as executor or trustee. This contention; so far as relates to the $9,000 bequest, is put upon the ground that the bequest was "in full of claims and demands against her estate,” and that she must have considered the claim of an executor or trustee to commissions was a claim or demand upon her estate. If that meaning is given to the language used it still fails to sustain complainant’s contention, because the gift is to settle all claims and demands except those otherwise provided for in the will, and she made a provision for commissions.
    Nor do I think the other contention respecting the living of the defendant in the house free of charge is any better supported. The bequest of the two executors of $500 each, which was to be in full of all commissions is applicable to both executors, and plainly indicates that testatrix thought she had the right to limit the amount which each should obtain for commissions. It is possible, perhaps probable, that testatrix did not know the state of the law which provides that an executor may renounce a specific compensation for his services, and claim such compensation as the court may award. In my judgment, the limitations cannot be enforced as against the renunciation of defendant.
    It is argued that the renunciation came too late, not being filed with the surrogate until after the defendant had managed the estate for several years as executor and as trustee. It is possible that limitation of time for filing such a renunciation might be properly imposed by the legislature, but it is not within the power of courts to so impose it and limit the executor’s right.
    The result is that I think that defendant should be allowed commissions bejnnd the amount fixed by testatrix as the estate exceeds $50,000, the amount allowed must be fixed by a consideration of actual services. During the period covered by this account defendant has managed the estate both as executor and trustee. The account must be considered as the final account of the executor. Eor his services in both capacities I think a commission of three per cent, on the sum which has come to his hands should be allowed.
    I will advise a decree allowing the account with the corrections reported by the expert, with commissions as above stated.

      Messrs. Edward A. & William T. Day, for the appellant.

      Messrs. Lum, Tamblyn & Golyer, for the respondent.
   Pee Curiam.

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

For affirmance — Garrison, Trenchaed, Bergen, Minturn, Bogert, Yredenbuegh, Williams — 7.

For reversal — The Chief-Justice, Swayze, Parker, Black, Heppenheimer — 5.


text:
    Sarah Barefoot, respondent, v. John M. Barefoot, appellant.
    [Submitted July 6th, 1914.
    Decided November 16th, 1914.]
    On appeal from a decree of the court of chancery advised by Yice-Chancellor Learning, who filed the following opinion:
    It is almost impossible to ascertain the exact truth in a controversy of this nature, and especially difficult to do so at a preliminary hearing on ex parte affidavits.

      , It is, however, apparent that defendant was not at his home, as stated by complainant, at the time the team was harnessed and the wagon loaded preparatory to complainant’s departure from the home, and equally apparent that neither of the daughters were there at that time. But defendant admittedly knew of complainant’s intended departure on that day, and it is obvious that he made no effort to dissuade her; on the contrary, it is entirely clear that he made it as easy as possible for her to accomplish her purpose. Complainant desired to leave; defendant was glad to have her leave; whether defendant ordered her to leave or not he clearly encouraged her to do so; both obviously preferred separation to continued cohabitation.
    The law requires a husband to support his wife. It is his right to require her to receive that support in his home as his wife, unless he has lost that right by his conduct; but his legal duty to support his wife does not cease by reason of her absence from his home at his instance or with his consent. It is only when he desires her presence m Ms home that her presence in that home can be made a condition precedent to Ms obligation of support. Until it is made to appear that the wife’s absence from her husband’s home is without the husband’s co-operation or cousent or is against his will, the issue as to whether the husband has by Ms conduct sacrificed his right to her presence in his home is not a live issue. Should the present defendant require his wife’s return to his home her right to resist that requirement and receive support away from that home would depend upon whether defendant’s conduct has been such as to justify her refusal to return.
    Without at this time determining whether defendant’s conduct in his home has been of a nature to justify complainant to leave that home and reside elsewhere and there enforce his obligation of support, it seems clear at this time that complainant’s absence from her home has not been against the will or wish of defendant at any time, but has, on the contrary, been encouraged by him from its inception; he encouraged her departure and has at no time sought her return. The utmost that he claims at this time is that he made no protest to her going because he knew it would be of no use. The circumstances stated in his affidavits, if true, disclose that a protest oil his part might have been fruitful, if made, in good faith. Should he in good faith seek her return, it may afford a ground for terminating alimony pendente lite, but until such time his failure to support her is an abandonment within the purview of our statute, in the absence of evidence that her original departure from his home or her continued absence has been under circumstances and of a nature to relieve him of the obligation of seeking her return. In short, all that is decided at this time is that when a wife resides away from her husband with his consent the husband’s obligation to support her continues.
    I will advise an order for alimony pendente lite to the amount of $15 per week, and a counsel fee of $25.,

      Mr. Lewis Starr, for the appellant.'

      Messrs. Wescoll & Wescott and Mr. Orville P. De Witt, for the respondent.
   Per Curiam.

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

For affirmance — The- Ci-iiee-Justioe, Garrison, Swayze, Trenoiiard, Parker, Bergen, Minturn, Kaliscii, Black, Bogert, Vrbdenburgh, Terhune, I-Teprenheimer, Williams — 14.

For reversal — Hone.


text:
    Floyd H. Bradley, receiver, &c., appellant, v. United Wireless Telegraph Company, respondent.
    [Submitted July 6th, 1914.
    Decided October 1st, 1914.]
    On appeal from a decree of the conrt of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 79 N. J. Eq. J/.B8.

      Messrs. French & Richards, for the appellant.

      Mr. William S. Darnell, 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 Viee-Chancel- ■ lor Learning.

For affirmance — The Chiee-Justice, Garrison, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Heppenheijtee, Williams — 12.

For reversal — None.


text:
    Essex County Trust Company, respondent, v. Lorenzo H. Abbey et al., appellants.
    [Submitted July 6th, 1914.
    Decided October 16th, 1914.]
    On appeal from a decree of the court of chancery advised by YioerChancellor Stevens, whose opinion is reported ante p. .1/7.

      Mr. Gorra FT. Williams, for the respondent.

      Messrs. Queen é Stout, for the appellants.
   Per Curiam.

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

For affirmance — The Chief-Justice, Garrison, Swayze, Trench ard, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Yredenburgh, ' Terhune, Heppenheimer, Williams — 14.

For reversal — None.


text:
    Barbara A. Flynn, appellant, v. Joseph A. Flynn, Jr., respondent.
    [Submitted July 6th, 1914.
    Decided November 16th, 1914.]
    In a suit for divorce on the ground of desertion — Held, that the petitioner was not a dona fide resident of this state “at the time the cause of action arose,” within the meaning of the jurisdiction clauses of the Divorce act of 1907 (Comp. Stab. p. 3031). Gets: v. Getz, 81 N. J. Eq. 465, followed.
    On appeal from a decree of the court of chancery advised by Advisory Master Clarence S. Biddle, who filed the following conclusions:
    The desertion commenced in the State oE New York in August, 1904. After this the petitioner lived with her mother in that state until the latter’s death in August, 1908, when she removed to the State of New Jersey.
    The jurisdictional fact stated by the master that the petitioner was a bona fids resident of this state when the cause of action arose cannot be sustained. Koch v. Koch, 79 N. J. Eq. 24.

    The petition should be dismissed.
    Further depositions having been taken on order therefor, the following memorandum was filed:
    The additional testimony is to the effect that shortly before the petitioner became a resident of this state the defendant said that if the petitioner would leave her folks and live elsewhere than in the city of Brooklyn, or would live “out of the state,” ho would support her. I do not understand that the husband and wife agreed to live separate until the wTife got ready to live out of the State of Mew York; and there is no indication that the wife gave assent to the husband’s previous desertion, and after taking up lier residence in this state, notified him of that fact and called upon him to fulfill his part of the agreement. The most favorable light in which the situation can be viewed from the wife's standpoint (and T think the true one) is, that the husband did not arrest the period of desertion by such display of mental attitude.
    It is clear to me that the solicitor is dissatisfied with Koch v. Koch, 79 N. J. Eq. 24. Since the former memorandum in this case, the court has decided Getz v. Getz, 81 N. J. Eq. 465. It does not appear to me to bo becoming to further agitate the point in this court; but the petitioner if aggrieved must resort to her appeal.
    The clerk is directed to dismiss this petition at once.

      Messrs. Teeple & Unger, for the appellant.
   Pee Curiam.

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

For affirmance — The Ci-tief-Justice, Garrison, Swayze, Trenci-iaed, Parker, Bergen, Minturn, Kalisck, Black, Bogert, Vbedenbuegi-i, ' Terhune, Heppenheimer, Williams — 14.

For reversal — None.


text:
    Aimee Green McComb, appellant, v. William McComb, respondent.
    [Submitted July 6th, 1914.
    Decided October 16th, 1914.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported ante p. 267.

      Messrs. Roe, Runyon & Awtenreith, for the appellant.

      Mr. Marshall W. Van Winkle, for the respondent.
   Pee Curiam.

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

For affirmance — The Chtee-Justice, Garrison, Swayze, Trenciiard, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Hepbenheimer, Williams — 12.

For reversal — -Vredenburgh—1.


text:
    Mignonette M. Riker, respondent, v. Samuel McD. Riker, appellant.
    [Submitted July 6th, 1914.
    Decided October 16th, 1914.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported ante p. 198.

      Mr. Ghauncey G. Farleer, for the respondent.

      Messrs. Oonlt & Smith, for the appellant.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion hied in the conn below by Vice-Chancellor Howell.

For affirmance — The Chiee-Justioe, Garrison, Swayze, Trenchard, Parker. Bergen, Minuten, Xalisci-i, Black, Bogert, Vredenburgi-i, Heppenhetmer, Williams — 13.

For reversal — Hone.


text:
    In the matter of the estate of Jennie Banvard, deceased.
    [Argued June 24th, 1914.
    Decided October 16th, 1914.]
    On appeal from a decree of the court of chancery advised by Vice-Ordinary Lewis, whose opinion is reported ante p. £86.

      Mr. Herbert Clark Gilson, for the appellant.

      Mr. Nathan H. Pendergast, for the respondent.
   Per Curiam.

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

For affirmance — Ti-ie Chief-Justice, Garrison, Swayze, Parker, Bergen, Minturn, KAlisci-i, Black, Bogert, Vredenburgh, Heppeni-ieimer, Williams — 12.

For reversal — Hone.


text:
    Richard Haden Hood, appellant, v. Frances Sparks Hood, respondent.
    [Argued June 19th, 1914.
    Decided October 2d, 1914.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, who filed the following opinion:
    This is a suit between husband and wife brought by the husband to recover a Louse and lot in Plainfield standing in his wife’s name. He contends that a trust resulted to him because he paid the purchase-money and because at the time of the conveyance, his wife, as he says, agreed to convey the property to him whenever he wished.
    The allegations of the bill have, in this ease, some significance and should he considered in connection with the proved facts. After stating that the real estate broker had in his wife’s presence suggested that the title be taken in her name, the bill proceeds:
    “Inasmuch as your orator was at that time on unfriendly terms with his heirs-at-law, who were his brothers and sisters, and inasmuch as at that time, he had executed no will, he was favorably inclined to this suggestion, but stated that being a business man, he disliked the idea of putting any of his assets in his wife’s name. Thereupon your orator’s wife, who had been present during the entire transaction and conversations referred to, stated that if the title were placed in her name, she would convey the same to your orator at 'any time he so desired.”
    Of the allegation up. to this point, the complainant had produced some proof on his side. Then the bill continues:
    "Thereupon without any intention of making a settlement of the property in question upon his said wife, who at the time expressly disclaimed such purpose in the transaction, your orator caused the deed for the said lands and premises to be made to his said wife as grantee.”

      There is no proof of any such express disclaimer and no proof of any disclaimer, except in so far as it may be inferred from her alleged promise to convey. The wife answers that the property was conveyed to her by way of settlement.
    The parties were married in July, 1901. They traveled abroad a great deal; lived in New York City, and for two or three seasons prior to 1908 rented a house in Plainfield. They seemed at times to have been happy together and at times to have quarreled and temporarily to have separated. Aside from such occasional separations they lived together until September, 1912.
    In the winter of 1908, Mr. Hood was in Europe alone. He wrote to his wife to look for a home. She went to Plainfield, and, among other properties, saw that now in dispute. On the day after Hood’s return, in April, 1908, they went to Plainfield and liked the property in dispute so well that he made an offer. After some bargaining, the owner agreed to take $31,000. To arrange details and consummate the transaction they met in the office of Mr. Lyman, a real estate broker in Plainfield. After the amount of money Mr. T-Ioocl was to pay and other details were adjusted, the broker asked in whose name the deed was to be taken. As the case turned largely upon the conversation that then took place, I give it in the words of the witnesses.
    Mr. Lyman, the broker, called by complainant, says:
    "I said to Mr. Hood, I said ‘Well now, Mr. Hood, what about this title,’ and he said, ‘Well Lyman, what about that.’ I said ‘Why don’t you take this title in Mrs. Hood’s name.’ ‘Well,’ he said, ‘What does that mean.’ I said, ‘It don’t mean anything particularly; I think everything is all right and it is done very frequently,’ and he remarked that he didn’t think it was a proper thing for a business man to do. * * * So we talked in reference to that for two or three minutes * * * and then Mrs. 1-Iood said, ‘Well Haden, what difference does it make, yon can have it back at any time you want it.’ That followed a conversation in reference to my saying that I had known of a case where it meant a good deal to the husband to have the property in his wife’s name.”
    "What he (Lyman) did say in reference to this case was further brought out on cross-examination:

      “Well, I said, it is done very frequently; in fact, it is rather an unusual occurrence to be otherwise, as far as I can figure it out in my business. * * * I did not feel that I was doing- wrong in making the suggestion to put the property in his wife’s name, and when he talked about these other things, I remarked, as I remember it, that, of course, it doesn’t mean that it is absolute; that you have to sign the deed anyhow in case the property is sold and then is when [hiatus]. * * * I simply said, well I knew of a case where it came in pretty handy.

      “Q. Pretty handy in the sense that a man had failed and had managed to save some of his property, because it had been in his wife’s name?

      “A. Xes, he was able to borrow some money; he failed for three millions and afterwards paid it back at six per cent, interest. * * *

      “Q. The only reason you had to refer to this instance was that (that they were at him pretty hard and heavy) ; wasn’t it?

      “A. That is all.
    “Q. That is the advisability of having the property in his wife’s name, so that if he were to fail in business, there would be something left?
    “4. I thought that was an argument.
    “Q. Did you tell him so?
    “A. Oh, no; I simply said I know of a case where such a thing as that made a great difference to a man — that was all that I said.”
    Mr. Hood’s version of the interview does not, substantially, differ. He says:
    “Mr. Lyman said to me in words, if not in substance, and I think in words, * * * ‘Why not put the deed in your wife’s name,’ and he said Mr. So and So’s (mentioning a name) property had beerf saved in that way and that he had been able to borrow money and get on his feet and pay off his obligations, and I shook my head and said, T don’t like the idea of a business man putting his assets out of his hands and in his wife’s name,’ and Mr. Lyman then explained the matter more fully as I remember it, and Mrs. 1-Iood turned to me and said, ’Haden, that won’t make any difference, you can have it back whenever you want it,’ and I said to Mr. Lyman, ‘Go ahead.’ ”
    Mrs. HoocTs version is:
    “Mr. Plood said he had decided to-put the place in my name, to deed it to me. Mr. Lyman said, ‘I am very glad; Mrs. Hood has wanted a home for so long and I am very glad to see it given to her.’ And he said it is a very good idea too Hood, for business reasons. He said, now there is a broker here in town (and he mentioned his name) who failed, I think for a million and a half a year or two ago, and he said, the only thing he had that he could put his hands on was the property in his wife’s name, and now he has made up the losses and is on his feet again, and Mr. 1-Iood turned to me and he said, ‘If we were ever in a hole Prank, the place goes too.’ He was such a moralist, don’t 57ou know, before this man Lj’man; and I said certainly; and the only way I remember that conversation is that Lyman looked very .much embarrased that he had suggested such a thing.”
    These were all the witnesses who testified on this point. Mr. Van Wyck, who was present, at least some of the time, does not recall this part of the conversation.
    The rule to he applied in a case of this kind has been so frequently stated in onr court of last resort that I need do no more than refer to one of its latest utterances. Says Mr. Justice Bergen, in McGee v. McGee, 81 N. J. Eq. 194: “The rule in this state is well settled that where a husband procures real estate to be conveyed to his wife, he paying the consideration, a presumption arises that he intends to settle the property on her, and while such presumption may be rebutted, the proof offered to accomplish it must be certain, definite, reliable and convincing, leaving no reasonable doubt of the intention of the parties.”
    Does the evidence offered in complainant’s behalf come up to this standard?
    If a man puts property in his aví lie’s name, avc naturally look for his reason or motive. 'The reason mentioned in the passage above quoted from the bill of complaint is that Mr. Hood was on unfriendly terms with his heirs-at-law .and that he had executed no will. If this were the real motive he must, in order to have given substantial effect to it, have conferred upon his wife more than the bare legal title. If, on the other hand, he Avas -inspired by a desire, in a time of prosperity, to lay up something for his family against a time of business adversity, then, too, he must have intended to bestow something more than a bare legal fee, unless we yield to the suggestion, repudiated hv Hood himself, that the conveyance Avas made only with an intent to binder and delay future creditors, in which case the observations of Mr. Justice Swayze, in Beck v. Beck, 78 N. J. Eq. (on p. 547), would apply.
    While the husband’s and Lyman’s version of the meeting seem at first blush to differ considerably from that of the wife’s, when Ave come to analyze them, the difference is not as great as it seems. All give prominence to the fact that Lyman suggested a conveyance to the wife because of its usefulness in the event of a business reverse and all agree that Hood’s direction to make the conveyance followed immediately upon Hyman’s suggestion and had reference thereto. They differ in that, Mrs. Hood testifies that it was she who first mentioned the fact of an intended gift, and they differ also in that flood’s version of what she said, “You can have it back whenever you want it,” is apparently broader than her version — broad enough to include any and all happenings at any and all times, while hers, “certainly,” in answer to his remark, “if we are ever in a hole, the place goes, too,” is restricted to the contingency that had just been mentioned by Lyman. The parties are attempting to reproduce what was said five years before, in a case where a slight change in the form of the expression might greatly change the meaning. It may well be that, general as they are in form-, Mrs. Hood’s words, taking them as they are recalled by Hood and Lyman, had reference only to the contingency that had just been mentioned, and not to other events and possibilities not then considered. At all events, I do not think we have here that certain, definite and convincing proof which should divest the apparent owner of her equitable title. Whether we regard the motive alleged in the bill, or the motive mentioned in the course of the conversation, as it is recalled by Hood and Lyman, we must, as I have said, to give it effect, suppose it to have been the intention to vest in Mrs. Hood something more than the hare legal fee. If this be so, the evidence, so far from overcoming the presumption of an advancement, rather negatives an intention to create a trust that would vest the entire beneficial interest in Mr. Hood.
    But it is said that Mrs. Hood has recognized her husband’s ownership by the expressions “your house,” “your place,” to be found in her letters. The words “my, our, your house,” in the correspondence of a husband and wife, are ordinarily intended to denote the object and not its ownership and are of little value in determining a question of title. Notwithstanding modern legislation, husband and wife still imagine that the passage in the marriage service, “with all my worldly goods 1 thee endow,” does have some meaning. If, in this case, the words are evidence against Mrs. Iiood, then the similar words in Mr. Hood’s letter of- October 3d, .1911, are evidence in her favor. In that letter .he writes:
    “I married you wishing to make you a good husband; that same good intention prompted these enclosed letters and culminated in my giving a full half of all my savings (hoardings would be nearer to it) of a whole life and three years of that life in building yom- home.”
    It is quite impossible to decide the ease upon a consideration of any such expressions. If the written words are of little value, of still less are the similar verbal utterances testified to by Mr. Hood and denied by Mrs. Hood.
    There is some evidence in this case which deserves a more careful scrutiny. Mrs. Hood says that her husband had, from the time he married her, promised to give her a home. This Mr. Hood denies. Mrs. Hood’s evidence is, however, corroborated, to some extent, by her mother’s, Mrs. Sparks, who says that when Mr. Hood received a cable from her husband approving their engagement, he brought it to her and said: "I am going to give Frances a home between New York and Philadelphia, that she will be near yon,” and that ten years later, while on a visit to her daughter, Mr. Hood said to her: “1 have made Francos no anniversary gift. I have given her this home and all these beautiful things, and I don’t have to give her anniversary gifts.”
    A gift of the house would not seem to have been out of proportion to Mr. Hood’s resources, as he himself depicts them. In his letter of September 7th, 1911, wriiing to Mr. Sparks, his father-in-law, he says:
    “In January, 1908, we agreed to separate, but Frances wrote me at Nice that she ought to have had a home, and that things would go differeutlj'. * * * I bought the one she selected. * * * I have spent $350,000 since our marriage, and Frances has shared a big half of it until now.
    The deed was made within two weeks of his return from Europe. As the letter I have just quoted from shows the parties had become reconciled. . Mr. Ljunan sa3's, speaking of this period, they seemed "always very devoted to each other.” The letter written from the Hotel Plaza on August 17th, of the same year, is further evidence of this. Mr. Hood therein says:
    “I miss yon. Xou certainly deserve a sweet home for such sweet constant devotion to this old bear of a husband; perhaps I do not fully appreciate what a real jewel you are; God bless you.”
    He was, at that time, in the mood to be generous, and he had the means to make a gift. Mot until the very serious quarrel, which occurred in the autumn of 1911, did he ask to have the property back. What then occurred deserves consideration.
    Mrs. Hood says that on September 5th, 1911, Mr. Hood told iier to leave, and she said she wouldn’t unless he put it in writing, and thereupon he wrote the note of that date, put in evidence. Mr. Hood says they separated by agreement. She went to Mew York. Then some correspondence took place between Mr. Hood, on the one hand, and Mrs. Hood and her father’s counsel, whom she had then consulted for the first time, on the other, and some things were done which are inexplicable unless we suppose that they had had some previous understanding, more or less Vague, perhaps, in reference to the ownership of the property. Having no children, it may have been their idea, if we may judge from what then took place, that the house should then go to Mrs. Hood if she survived him and to Mr.' Hood if he survived her. This is mere conjecture. On September 23d, Mr. Hood wrote to Mr. Shipley, his wife’s comí sel, as follows:
    “The house at Plainfield and over ninety-five per cent, of the contents were paid for by me, and only placed in Mrs. Hood’s name under an agreement with me that the place was mine and only put in her name to safeguard her m ease of my death.”

    Considerable weight must be given to this passage. It was written two years ago to one who stood in a position of antagonism to him, ready, as he must have known, to take advantage of his admissions. It militates against Mr. Hood’s present position that his wife was to have no beneficial interest. It indicates that Hood’s idea at that time was that it would be hers, beneficially, if he died before her.

      I-Ie followed up this letter by one of September 30th to his wife. He says:
    “I enclose herewith for your signature deed to me for the property here; kindly execute this before a commissioner, &c. * * * This is in accordance with the promise you have always made me.”
    What promise did ho refer to ? Certainly not to an agreement on her part to hold the bare legal title in trust for him, for he had only five days before made a contrary statement to her lawyer. He drew this deed himself and he drew it direct from his y/ife to himself. Evidently he had not consulted counsel, for counsel would have told Mm that he could mot acquire title in that way. Mrs. Hood says she received the letter “out of a clear sl$y.” She says further that she went to Philadelphia and showed the. deed to Mr. Shipley. Mr. Shipley was then in communication with Hood, trying to make an arrangement for separation and support — a guaranteed arrangement as she called it. Mr. Shipley told her, she says, that it was all right for her to return the property if her husband would consummate the ar-rangement proposed. But she did not wait for its consummation; she sent it to him in a letter (not produced because destroyed) telling Mm that she was returning it in view of the confidence she had in him that he would do the right- thing as he had said. lie acknowledged its receipt on October 5th, and enclosed her a cheek for $1,5-45, the cost of some silver she had bought. Then she says she waited for two weeks in the expectation that he would consummate the arrangement, and not hearing from him, again wrote taking him to iask for his silence. To this letter he replied as follows:
    “I do not like the insinuations in your letter of the 17th inst. If you will return me the $1,545, I will send you your silver and return you the deed, otherwise drop the matter.”
    On October 20th she wrote:
    “I enclose you my check for $1,545, and according to your letter of October 19th, please return to me at once the deed which I executed at your request. I wish the silver and all my possessions to remain at 541 Stelle avenue (the property in dispute), as I have but one home and that is in Plainfield, New Jersey. * * * Enclosed is my will which I have made to safeguard you in the event of my death."

    By this she attempts to devise all her estate, real, personal and mixed, to her husband. Tie returned the deed, but not the will, in a registered envelope without any accompanying letter. Shortly after, he wrote that he was going abroad. He did, in fact, go to India, and Mrs. Hood went to Italy. Ho settlement liad been arrived at. In the following winter they met in Paris and became reconciled. On their return to this country they went to Plainfield and lived there until September, 1912. What happened during the spring and summer of that year is told in my opinion in the divorce ease. There is nothing during that time Chat throws further light upon the subject here considered.
    We have then this peculiar situation: The parties fail to testify to any agreement which would give to both an interest in the property, and yet each, appears to admit, at a time when they are at swords’ points, that the other had some claim thereto, legal or moral. Why otherwise, with what seems to be punctilious honor, would the husband return to his wife the deed canceled by himself and the wife make a will in his favor? The suggestion of counsel that the deed was returned because Mr. Hood had discovered its invalidity does not accord with, the sequence of events or with the correspondence. The evidence of Mr. Rohrer, to the effect that while the negotiations were pending, Mrs. Hood stated to him that she had executed it because she was “going to be as good as her word,” does not, in view of the facts detailed, necessarily imply that she has executed it because she knew that she had no equitable interest. His advise to her that now she had it back, she should not let it go again, rather indicates the contrary.
    If complainant had founded his ease upon a promise by his wife to convey to him a fee in remainder contingent upon her dying before him, the case would have more nearly resembled Duvale v. Duvale, 56 N. J. Eq. 375; but he has made no such case. If lie had, he would have been greatly embarrassed in proving a contract valid under the statute of frauds. Assuming a verbal understanding, such as I have suggested, the question would have been, when was such understanding had? Certainly not, if we axe to give credit to Mr. Hood’s testimony, at Mr. Lyman’s office, when the name of the grantee was decided upon. It must have been then, either before or after the meeting there. Considering how very soon after Mr. Hood’s return from Europe the transaction was consummated, and considering further the utter lack of any reference to it in Lyman’s office by any of tire witnesses, it is more reasonable to conjecture that if it existed at all, it was had subsequently; but if subsequently, then it is unenforceable because not in writing. It stands, at best, as no more than what might be termed a working hypothesis, resorted to only to explain the conduct of the parties. The ease, in this aspect of it, has some resemblance to Midmer v. Midmer’s Executors, 26 N. J. Eq. 300; 27 N. J. Eq. 548.

    There are two tracts in controversy, the Yan Wyck and the Chapman tracts, the latter of which was purchased two or three days after the former, for the purpose of extending the grounds. My discussion has hitherto related to the Yan Wyck tract. I cannot find in the evidence any good ground for coming to an opposite conclusion in reference to the Chapman tract. The evidence of a resulting trust is to be found only in the assertions and evidence of Mr. Hood denied by his wife. The two tracts have always been used and treated as one, and in no part of the correspondence are they put upon a different footing. It being necessary to overcome the presumption of an advancement by evidence “certain, definite and convincing,” I cannot say that such evidence has been produced.
    Mr. Hood spent, he says, between fifty and sixty thousand dollars in improving the property. The improvements follow the title. Selover v. Selover, 62 N. J. Eq. 761.

    I attach little importance to the fact that Mr. Hood received one-quarter’s rent after his purchase; that he paid the taxes and that he took charge of the deeds, kept, it would seem, for considerable part of the time at least, in a box standing in their joint names. These were acts that would probably have been done in any event by a husband situated as he was. His wife had little, if any, independent income. I think the bill should be dismissed.

      Messrs. McCarter & English, for the respondent.

      Messrs. Collins c§ Corbin, 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 Stevens.

For affirmance — Ti-ie Ci-iiee-Justice, Swayze, Trenci-iakd, Parker, Bergen, Minturn, Kadiscii, Black, Bogert, Vre-

DENBURGH, IÍEPPENHEIMER, WlLLÍAMS-12.

For reversal — None.