author: Walkek, V. C.

text:
    Joshua S. Cope v. C. B. Walton Company et al.
    [Decided June 14th, 1910.]
    1. Under the rule that any order, no matter how informally expressed, or any act which makes an appropriation of a fund, is a good assignment in equity, an instrument executed by a contractor for the construction of roads in a county, addressed to the county collector, and requesting the payment to a person named of the moneys due on the contract, as they become due, is a valid assignment in equity.
    2. Where a contractor, in need of financial assistance to enable it to perform the work, executed an assignment of the moneys to become due under the contract to a third person, who endorsed notes of the contractor, which notes were discounted by a bank for the benefit of the contractor, the assignment was supported by a sufficient consideration.
    3. Under 2 Q-en. Stat. 1895 p. $078, securing the payment of laborers and materialmen on any public improvement in municipalities, a contractor for a municipal improvement may assign in advance all the moneys to be derived' by it under the contract and defeat the claims of the creditors of the contractor doing work on or furnishing material for the improvement.
    4. The treasurer of a corporation who, since its organization, has been permitted exclusively to manage and control its affairs, has authority to assign moneys to become due under a contract for a public improvement to be constructed by the corporation, to enable it to obtain money to carry on the work.
    5. Where an order is drawn on a particular fund and presented to the debtor, there is an equitable assignment, though the debtor refuses to recognize the assignment.
    6. Where the assignment of moneys to become due under a contract for the construction of roads in a county was lodged with the county collector, the notice to the county collector of the assignment was notice to the board of freeholders of the county.
    7. An assignment for a valid and presently moving consideration, executed by an insolvent corporation to an assignee who has knowledge of the insolvency, or by a corporation contemplating insolvency, to an assignee who has knowledge thereof, is void as against creditors.
    8. A corporation contracting for the construction of roads in a county assigned the moneys to become due under the contract. Seven months later it went into the hands of a receiver. The corporation had since its organization been in financial straits and had been constantly aided by the assignee. At the time of the assignment, the corporation was in arrears for taxes and was unable to pay its insurance and was in default for interest on mortgages and had only nominal cash balances in a few banks. It could not pay its current bills, and its credit with the banks was exhausted. About a year before the assignment, it had conveyed all its property to the assignee as security for a past-due indebtedness and to secure future advances.' — Held, that the corporation was, to the knowledge of the assignee, insolvent at the time of the assignment, so that it was void as against creditors.
    9. One failing to comply with 1 Gen. Btat. 1895 p. '2078, securing the payment of laborers and materialmen' on municipal improvements, and requiring the filing of notices by claimants, by failing to file a notice, is not entitled to the benefit of the statute.
    10. One boarding the laborers constructing a road in a county, pursuant to a contract therefor, is not within 1 Gen. Btat. 1895 p. 2078, securing the payment of laborers and materialmen on public improvements.
    On final hearing, on pleadings and proofs.

      Messrs. Jamies & Malcolm Q. Buchanan, for the complainant.

      Mr. Frank S. Katzenbach, Jr., for the defendant Allen.

      Mr. John J. Treacy, for the defendant Indian Befining Company.

      Mr. Joseph G. Harrison, Jr., for the defendants Cain, Van Sant and Hill.

      Mr. J. Lefferls Conard, for the defendant Tuzzolina.
   Walkek, V. C.

The bill in this case was filed to enforce the payment of a municipal lien claim tinder the act entitled “An act to secure the payment of laborers, mechanics, merchants, traders and persons employed upon or furnishing materials toward the performing of any work in public improvements in cities, towns, townships and other municipalities in this state,” approved March 30th, 1892. Gen. Stat. p. 2078. The defendant company was awarded, by agreement dated April 25th, 1908, the contract for constructing a certain stone road in the county of Mercer for the sum of $14,360.64, witli pajanents to be made as provided in the contract and specifications. In June, 1908, the defendant company entered into a contract with the complainant for the furnishing of crushed stone for the road at $1.30 per ton. This contract was performed and thereunder the C. B. Walton Company, defendant, became indebted to the complainant in the sum of $6,763.24, pajnnent whereof being refused the complainant filed a lien claim under the act. The complainant filed three liens in all; one October 9th, 1908, for $3,754.51; another October 17th, 1908, for $6,674.43; and another Eovember 13th, 1908, for $88.81. Other lien claims were filed; one b}r George B. Cain, October 16th, 1908, for $431; one by Stephen Van Sant, Eovember 2d, 1908, for $96.60; and another by Joseph B. Hill, Eovember 21st, 1908, for $134.95.

It was on April 14th, 1908, nine days before the contract was awarded, that the bids were opened, and it was found that the defendant O. B. AValton Company was the lowest bidder for the road. The company also received two other contracts for roads. On the day mentioned, Charles B. Walton, the treasurer and general manager and the active head of the defendant company, negotiated with the defendant Thomas B. Allen, for financial assistance, to enable the company to prosecute the work of building the roads.. The result was that Messrs! Walton and Allen repaired to the First Eational Bank of Trenton and informed the president, Mr. Scudder, of the project. The three conferred and the result of their deliberations was an agreement that the C. B. Walton Company should give to Mr. Allen an assignment of the moneys to grow due under the road contracts, and that he, Allen, would endorse the notes of the company and the First Eational Bank would discount them for its benefit. On May 13th, 1908, an order was made, of which the following is a copy:

"Trenton, N. J., May 13th, 1908. “Mr. B. P. Mount, County Collector, Mercer County, N. J.:
“Dear Sir — -Please pay Thomas K. Allen all moneys due on contracts for roads as the monthly payments at different times as they come due until the completion of all work contracted for the year nineteen hundred and eight, by so doing you will oblige,
“Yours very truly,
“The C. B. Walton Company,
“Charles B. Walton, Treas."

This order was on its date lodged with the county collector, and as each payment under the contract became due, the collector notified Allen and he would either receive the money or else draw up an order to pay the same to the C. B. Walton Company. Under this arrangement, Allen paid out $11,233 and received $4,-356.74, leaving a balance due him of $6,866.26, which, with interest, about equals the balance due from the county under the contracts. The question is, whether these moneys shall go to Allen, under his assignment, or whether the lien claimants are entitled to the same as far as the fund will extend.

The order given by C. B. Walton Company to the defendant Allen is founded upon a good and sufficient consideration and amounted to an assignment in equity of the fund to become due from the county to the C. B. Walton Company. Any order or writing, no matter how informally expressed, or any act which makes an appropriation of a fund, is a good assignment in equity. Shannon v. Mayor of Hoboken, 37 N. J. Eq. (10 Stew.) 123, 125.

On behalf of the complainant, it is urged that even assuming the assignment from the defendant company to Allen to be valid, Allen’s claim under it must be postponed to the lien claims because it is alleged the statute gives lien claimants in these cases an inchoate lien which will ripen into a perfected and enforcible one upon the statutory proceedings being taken to perfect their claims, and reliance is placed upon the case of Pierson v. Haddonfield, 66 N. J. Eq. (21 Pick.) 180. This case is certainly an authority for the complainant’s position to a certain extent. In his opinion, Vice-Chancellor Grey said (at p. 189) :

“The purpose and object of the statute is fairly indicated in its title. It is there declared to be an act to secure the payment of persons employed upon or furnishing materials toward the performance of any work on public improvements in the municipalities of this state. The first section also declares that any person doing any work or furnishing any material 'toward the performance or completion’ of any contract with a municipality for a public improvement shall have a lien. The right to. a lien arises when the work or material is supplied towards the performance of the contract, not when it is completely finished. The second section, in terms, prescribes that the notice of claim may be filed at any time before the whole work to be performed is completed, or within fifteen days afterwards. The right to the lien is inchoate until perfected by the filing of the notice. It is true there can be no compulsion of payment until after the contract is completed, for until that has happened it cannot be known who all the respective lien claimants are, in order to adjudge their claims (section 8), or whether the municipality has any right to retain any p'art of the contract price to reimburse itself for any losses it may have suffered in completing the work. This necessary postponement of the ascertainment of the respective lien claimants, and of the payment of the portion of the contract price to which they may be entitled, does not prevent the claimant from perfecting his lien on such part of the contract price as may be either due or to grow due to the contractor, for by the express words of the statute (section 5) the lien attaches from the time of the filing of the lien notice, and obviously has effect whether the contractor is proceeding with performance of the contract or has abandoned it. The lien attaches not because of the act of the contractor in having finished the performance of his contract, but because of the act of the lien claimant in furnishing labor or material towards the performance of it and giving notice thereof as prescribed by the statute. The subject-matter of the lien is the fund due or to grow due to the contractor, which means not only what is due to the contractor at the time the lien notice is filed, but also what may thereafter come to be due to him.”

And again (at p. 19S) :

“Any other construction of the statutory lien would make the statute a baited trap, inviting workmen and materialmen to give credits to contractors erecting public improvements upon the assurance that the payment of their claims would be secured, but depriving them of their security by the enforcement of a latent equity, to the creation of which they were not parties, and of which they knew nothing when they gave their credits, which, in fact, came into existence (if it ever did arise), because of circumstances happening long after the claimants’ liens had attached.”

This opinion (Pierson v. Haddonfield) was filed February 23 d, 1904, and on February 27th, 1904, Vice-Chancellor Reed filed an opinion in Garretson v. Clark, 57 Atl. Rep. 414, in which he held the opposite of the doctrine just stated. He said (at p. 415) :

“It seems entirely clear that the liens of the respective claimants arose at the moment when the claims were filed. * * * Under our- original Mechanics’ Lien act, until demand and notice by a laborer or materialman was given, the contractor could deal with the amount due him in any way he chose. The present act, of course, expressly limits his ability to do so, but no such limitation is contained in the act of March 30th, 1892, under which the present claims were filed.”

Vice-Chancellor Grey evidently became converted to Vice-Chancellor’s Reed’s view, for in Somers Brick Co. v. Souder (September 18th, 1905), 70 N. J. Eq. (4 Robb.) 388, he said (at p. 394) :

“The claimant, under the act of 1892, secures his lien for the first time when he files his notice of claim. This is the effect of the statute. Vice-Chancellor Reed so held in Garretson v. Clark, 57 Atl. Rep. 414. Preceding the filing of the notice of lien claim, the contractor might transfer his interest in the contract price. So, also, the contractor and the city, before any claims are filed, being the sole parties to the contract, may postpone or anticipate payments thereunder.

“This was the case under notices by virtue of the third section of the Mechanics’ Lien act (Craig v. Smith, 37 N. J. Law (8 Vr.) 549) before the supplement of March, 1895, changed its operation and gave an inchoate lien to the workmen and materialmen before notice served. Slingerland v. Binns, 56 N. J. Eq. (11 Dick.) 418. In the act of 1892, now under consideration, there is no prohibition against anticipated payments, no inchoate lien on the fund, and no provision making the owner who prepays liable to a subsequent lien claimant.”

Thus it appears that Vice-Chancellor Grey, in Pierson v. Haddonfield, held that the lien of a workman or materialman arose when the work was done or material supplied toward the performance of the contract, and that the right to lien was inchoate until perfected by the filing of notice, while Vice-Chancellor Reed, four days later, held, in Garretson v. Clark, that the liens arose at the moment when the claims were filed, and Vice-Chancellor Grey, effectually, though not expressly overruling his own case of Pierson v. Haddonfield, agreed with Vice-Chancellor Reed in his (Grey’s) later opinion in Somers Bride Co. v. Souder, wherein he held that under the Municipal Lien law there is no prohibition against anticipated payments, no inchoate -lien on the fund, and no provision making, the owner who prepays liable to a subsequent lien claimant.

However, it is to be observed, even upon the theory of Vice-Chancellor Grey in Pierson v. Haddonfield, that the lien had its inception from the time of work done or materials furnished and that it then became inchoate, and it is to be implied that before work done or materials furnished the contractor could make a valid disposition of the moneys to become due under his contract. And that is why I said above that Pierson v. Haddonfield is an authority for complainant only to a certain extent, it being apparent under that case that there could be a valid assignment of moneys to grow due under a municipal contract before work done or materials furnished, but that if made afterwards and before lien filed the assignment would be subject to the lien of the workman or materialman.

It may be unfortunate that the legislature has not seen fit to provide with reference to work on municipal contracts that the contract price shall be liable to lien for work done and materials furnished, and that such liens shall have priority over any assignments or latent equities, no matter when made or created. In the existing state of the law it seems that a contractor for municipal improvements may assign the money to be derived by him under the contract, in advance and in its entirety, so as to defeat utterly the claims of all creditors of the contractor doing work or furnishing materials for the improvement. If this is to be remedied, legislation must be sought; the courts are powerless to extend it.

Counsel for the complainant assert, however, that the assignment to Allen is invalid for the following reasons — first, because the C. B. Walton Company did not execute or authorize the execution of the assignment, which was made by the treasurer without authority, and that it is therefore not binding upon'the company; second, because no notice of the assignment was given to the board of chosen freeholders of the county of Mercer, the debtor, and third, because the C. B. Walton Company was insolvent at the time the assignment was made, and that therefore the assignment is, under the statute, void as against creditors.

As to the first reason: True it is that the board of directors did not authorize the execution of the assignment to Allen, but, irrespective of what the by-laws provide concerning the powers of the treasurer with reference to the making of orders for the payment of money, I hold that Mr. C. B. Walton, the treasurer of the company, had power to make the assignment in question because the directors of this corporation since its organization in 1903 had permitted him to exclusively manage and control its affairs. Said the court of errors and appeals in Fifth Ward Savings Bank v. First National Bank, 48 N. J. Law (19 Vr.) 513 (at p. 527) :

"There are cases in which the powers of an officer of a corporation and his authority to act for the company are enlarged beyond those powers which are inherent in his office. But those arc cases in which the agency of the officer has arisen from the assent of the directors, presumed from their consent and acquiescence in permitting the officer to assume the direction and control of the business of the company. Thus, when, in the usual course of the business of a corporation, an officer has been allowed to manage its affairs, his authority to represent the corporation may be implied from the manner in which he has been permitted by the directors to transact its business. These are simply instances of the application of the principle that usual employment is evidence of the powers of an agent, and a responsibility will be laid upon the principal for the acts of his -agent within the apparent authority so conferred upon the agent — a doctrine which has come to be applied to corporations in many respects as well as to individuals, and with the same qualifications and limitations. In such cases, the authority of the officer does not depend so much on his title, or on the theoretical nature of his office, as on the duties he is in the habit of performing.”

See, also, Clement v. Young-McShea Amusement Co., 69 N. J. Eq. (3 Robb.) 347; Blake v. Domestic Manufacturing Co., 64 N. J. Eq. (19 Dick.) 480.

As to the second reason: There can be no doubt but that if an order be drawn on a particular fund and presented to the debtor an equitable assignment is worked even though the debtor refuses to accept the notice; that is, refuses to recognize it or to be bound by its terms. Superintendent v. Heath, 15 N. J. Eq. (2 McCart.) 22; Bradley & Currier Co. v. Berns, 51 N. J. Eq. (6 Dick.) 437. The question, therefore, is, whether the board of chosen freeholders had notice of this assignment. The assignment was lodged with the county collector, the financial officer of the county, who was the disbursing officer of the board. I have no doubt that notice to the county collector was notice to the freeholders of Mercer of this assignment. Trenton Banking Co. v. Woodruff, 2 N. J. Eq. (1 Gr. Ch.) 117. But it seems that it is unnecessary that the freeholders of Mercer should have had notice of the assignment, for, in Cogan v. Conover Manufacturing Co., 69 N. J. Eq. (3 Robb.) 809, the court of errors and appeals held:

“As between an assignee of a fund under an equitable assignment and the receiver of the assignor, an insolvent corporation, notice of the assignment to the debtor or holder of the fund is not necessary to perfect the title of the assignee.” See, also, United States Fidelity and Guaranty Co. v. City of Newark, 74 N. J. Eq. (4 Buch.) 454.

As to the third, and in my judgment controlling, reason, namely, that the C. B. Walton Company was insolvent at the time the assignment was made, and that therefore the assignment is void under the statute as against creditors. In my opinion the company was insolvent at the time the assignment was made. It was organized in 1903 and went into the hands of a receiver in December, 1908, seven months after the giving of the order in question. It never flourished, was generally in financial straits, and was constantly helped by Allen, the defendant, who took the assignment. At the time the assignment was given the company was in arrears for taxes, was unable to pay its insurance, was in default for interest on mortgages, had a balance of cash in one bank of $3.60, in another $6..91, and in another $2.61. It could not pay its current bills in full. Its credit with the banks was exhausted. A little over a year before the date of the assignment, the company had conveyed all its property, both real and personal, to Allen, as security for past due indebtedness and to secure future advances. When requested to endorse the notes for the raising of money to prosecute the road operations, Allen at first refused, saying he had gone as far as he wanted to, but consented to endorse further on condition that the order be given to him. There are other facts and circumstances indicating insolvency, and Allen’s knowledge of it, which will not be adverted to, as enough, I think, has already been pointed out. The company was without funds, and, apparently, could get none without security. The very fact that it could not undertake the road making, unless the entire project was financed by an outsider, was, in itself, a cogent evidence of its financial irresponsibility; in other words, its insolvency.

On the subject of insolvency and notice to the assignee, Regina Music Box Co. v. Otto & Sons, 65 N. J. Eq. (20 Dick.) 582; affirmed, S. C., 68 N. J. Eq. (2 Robb.) 801, is an.authority. In that case it was held in the .court of chancery, whose opinion was adopted by the court of errors and appeals, that a security given by a corporation, which is insolvent, or which contemplates insolvency, for a presently moving consideration, is valid if the person taking the security be without notice of such insolvency or contemplation of insolvency. The same doctrine was held by the court of last resort in Cogan v. Conover Mmufachiring Co., ubi supra; 69 N. J. Eq. (3 Robb.) at p. 815: These cases are express authority to the effect that an asignment, although for a valid and presently moving consideration, if made by an insolvent corporation, so known to be by the assignee, or by a corporation contemplating insolvency, with such contemplation known to the assignee, will be void as against creditors. Judged by these standards, the assignment under review is invalid and must be avoided in favor of creditors. Insolvency is'the only thing that dethrones the Allen assignment.

There is, I understand, $8,008.39 in the hands,of the county under this contract, with laborers’ liens, entitled to priority, amounting to $156.50, which leaves $7,851.89 for distribution. The priority of the lien claimants to the balance of the fund will be established as follows: Cope’s first lien for $3,754.51; George R. Cain’s lien for $431; Cope’s second lien for $6,674.43; Yan Sant’s lien for $96; Cope’s third lien for $88.81; Joseph B. Hill’s lien for $134.95. It is perfectly apparent that the fund will be exhausted by the pa3rment in full of Cope’s first lien, Cain’s lien and partial payment of Cope’s second lien.

The claim of the Indian Refining Company is disallowed because the company failed to comply with the provisions of the statute requiring the filing of notices by claimants. The claim of the defendant Yuzzolina is disallowed for the same reason, and for the additional reason that he did not perform- any labor or furnish any materials toward the performance of the completion of the road in question. His bill is for the board of laborers who did the actual work. He does not fall within the statute.

A decree will be advised in conformity with the above views.


source: Caselaw Access Project

author: Walker, Y. C.

license: Public Domain

text:
    Alice A. Dey and Leulla B. Dey v. Florence M. Allen, D. P. Forst & Co. et al.
    [Decided September 21st, 1910.]
    1. In a contest between judgment creditors for surplus moneys in a foreclosure suit arising from the sale of the judgment debtor’s land conveyed by him to defraud Ms creditors, the surplus will be awarded to that judgment creditor to be applied on his judgment, so far as it will extend, who alone, not only recovered judgment and made a levy on the land, but also filed a bill in this court in aid of his judgment to have the debtor’s conveyance set aside as fraudulent and void as to such creditor, and prosecuted such suit to a decree in his favor, notwithstanding the other judgment creditors have prior judgments and prior levies on the samé land.
    2. A creditor’s suit in this court in aid of a judgment at law is entirely self-serving, and one for the benefit of the complainant alone.

      On bill, &c. On exceptions to master’s report.

      Messrs. John 8. Applegate & 8on, for Humphrey & Martin.

      Mr. Clarence H. Murphy, for Lynch & Livingston.

      Mr. Edwin G. Long and Mr. Linton Saiterthwait, for D. P. Eorst & Co.

      Mr. Joseph Beiley, for Florence M. Allen.
   Walker, Y. C.

Eobert E. Allen, late of the county of Monmouth, being seized of certain land and premises there situate, mortgaged the same to the complainants) his wife joining in the mortgage and releasing her dower. Afterwards Allen conveyed the mortgaged premises to a third party, his wife likewise joining therein and releasing her dower. After divestiture of title judgments were recovered against Allen by Lynch & Livingston, Humphrey & Martin and D. P. Forst & Co., in the order named, although Humphrey & Martin issued execution and secured a levy prior to Lynch & Livingston. The premises afterwards, by mesne conveyances, became vested in Mrs. Allen.

I). P. Forst & Co. filed a bill in this court in aid of their judgment to have the conveyances set aside as fraudulent and void as against them. This suit they prosecuted to a finality and obtained a decree avoiding the conveyances in favor of their judgment and execution.

Subsequent to the recovery of these judgments suit was instituted to foreclose the complainants’ mortgage and the judgment creditors were made parties defendant. Such proceedings were had therein that a sale of the mortgaged premises was made under fi. fa. and the sum of $590.01 surplus money, has been raised. Humphrey & Martin have petitioned for this surplus upon the ground that their eieeution was first levied upon the mortgaged premises. The master reports that they are entitled to the fund, and that Lynch & Livingston have the second lien, and D. P. Forst & Co. the third lien.

D. P. Eorst & Co. except to the master’s report and insist that their judgment should be first paid, together with the costs of their suit brought in this court, to set aside the fraudulent conveyances. In my opinion they are right in this contention. A suit in this court in aid of a judgment at law has been held to be entirely self-serving and one for the benefit of the complainant alone. Whitney v. Robbins, .17 N. J. Eq. (2 C. E. Gr.) 360; Jones v. Fayerweather, 46 N. J. Eq. (1 Dick.) 237 (at pp. 255, 256); nor is Kinmouth v. White, 61 N. J. Eq. (16 Dick.) 358, out of harmony with this view. In that case it was held in this court that where judgment creditors bring suits to set aside fraudulent conveyances which are void as to them all, their priorities against the property conveyed are in the order of their levies, which, of course, is consonant with the doctrine of priority of levy. In that case each judgment creditor who was contending for the property of the fraudulent debtor, not only recovered judgment and secured a levy, but brought a bill to set aside the conveyances which stood in the way of their recovery, and the suits, while not consolidated, being tried together by consent, an adjudication was made as to them all. Had not each pursued his remedy to the uttermost, he would not, as I understand it, have been entitled to relief, and to have had his judgment established in the order of priority secured by levy. Now, in this matter, Humphrey & Martin and Lynch & Livingston might have proceeded at law and sold the land on which the3r levied and brought ejectment to test the validity of the conveyances, or they could have filed bills in this court for the removal of the fraudulent conveyances out of their way and then sold the premises under their executions. Kinmouth v. White, ubi supra (at p. 360). They pursued neither of these remedies, and therefore, the land in question, or rather the surplus money which stands in the place of the land itself in respect to liens (Servis v. Dorn, 76 N. J. Eq. (6 Buch.) 241), is beyond their grasp.

Of these several judgment creditors of Allen, D. P. Eorst & Co. alone have pursued the property and secured an adjudication that the conveyances were fraudulent and void as to them. There is no adjudication that they were fraudulent and void as to the other creditors. Their (D. P. Eorst & Co.’s) debt has become fastened upon this particular property, the debts of the others have not, and D. P. Eorst & Co. are, therefore, entitled to the fruits of their diligence.

Mrs. Allen joined her husband in his voluntary conveyance of the property in question and thereby released her right of dower. The premises afterwards came to. her by mesne conveyances as already stated and were her property when sold under the fi. fa. in the foreclosure suit. Therefore, she had no estate in dower in the premises sold and is not entitled to any interest in the surplus money.

The exceptions to the report will be sustained and an order made awarding the surplus money to D. P. Eorst & Co., in payment of their judgment and costs of suit, which will exhaust the fund and leave some balance unpaid.


author: Gummere, Chief-Justice.

text:
    Mary L. Mason, appellant, v. James Ross, appellee.
    [Submitted March 21st, 1910.
    Decided June 29th, 1910.]
    1. The question whether a right of way over the lands of one person exists in favor of another is a purely legal one, and where the existence of such an easement is in dispute the proper tribunal in which to settle the question is a court of law.
    2. Where complainant by her bill seeks to restrain defendant from interfering with an alleged easement of way over lands of the defendant, and the answer does not challenge the jurisdiction of the court, but denies the existence of the easement, the proper practice is to retain the bill until the complainant has had a reasonable opportunity to establish her title, to the easement, at law.

      On appeal from a decree of the court of chancery advised by Vice-Chancellor Walker, whose opinion is reported in 75 N. J. Eq. (5 Buch.) 136.

      Mr. John H. Baches, for the appellant.

      Mr. Linton Satterthwait, -for the respondent.
   The opinion of the court was delivered by

Gummere, Chief-Justice.

A very full and accurate statement of the facts in this ease is contained in the opinion of the learned vice-chancellor in the court below, and it is unnecessary to repeat them here. It is enough for present purposes to say that the complainant, by her bill, seeks to restrain the defendant from interfering with an alleged easement of way in a strip of land owned by the defendant, and upon which the property of the complainant abuts. The proofs demonstrated that prior to the year 1889 such an easement existed in favor of the then owner of the complainant’s property. The defence interposed was that this easement had been abandoned by the complainant and her predecessors in title, or one of them, and had ceased to exist prior to the institution of the present suit. A consideration of the proofs led the learned vice-chancellor to the conclusion that this defence had been made out, and he thereupon advised a decree dismissing the complainant’s bill. From the decree entered upon this advice the complainant appeals, and the principal contention made on her behalf before us is that the evidence in the case does not justify the conclusion reached by the court below.

We consider that this matter is not properly before us. The question whether a right of way over the lands of one person exists in favor of another is a purely legal one, and, where the existence of such an easement is in dispute, the proper tribunal in which to settle it is a court of law. It was so declared by this court in the case of Hart v. Leonard, 42 N. J. Eq. (15 Stew.) 416, and again in Todd v. Stoats, 60 N. J. Eq. (15 Dick.) 512. It is true that special circumstances may sometimes exist -which will justify a court of equity in determining a dispute over a private legal right in land, and in enforcing that right if found to exist; but such cases are rare.. In Hart v. Leonard, supra, our earlier decisions were analyzed, and the various classes of cases in which the power of equity to entertain jurisdiction over such disputes existed, were specified. The present case comes within none of those classes, and if the defendant had challenged the jurisdiction of the court the present bill should have been dismissed for lack of it. This not having been done the proper course for the court to have pursued was to retain the bill until the complainant had had a reasonable opportunity to establish her title at law. Todd v. Stoats, supra.

The decree, dismissing the bill will be reversed in order that the course indicated may be pursued.

For affirmance — None.

For reversal — The Chibe-Justice, Garrison,' Swayze, Trenohard, Parker, Bergen, Yoorhees, Minturn, Bogert, Vredenburgh, Yroom, Gray, Dill, Congdon — 14.


text:
    Sarah D. Collins et al., complainants, v. Mary C. Leary et al., defendants.
    [Argued March 18th and 22d, 1910.
    Decided September 16th, 1910.]
    1. Complainant’s deceased husband contracted with L., since deceased, that the latter should be permitted to use a patented dredging bucket in consideration of which complainant and her husband were to receive a conveyance of real estate, and to be paid a sum of money the amount of which was left to subsequent agreement, but which was never made. L. placed complainant and her husband in possession of the real property, but never conveyed the same, and after L.’s death his heirs sued in ejectment to recover the property, whereupon complainant filed a bill to restrain the ejectment suit and to compel conveyance of the real property and for an accounting. — Held that, while complainant would have been a competent witness if the suit had been solely to restrain the ejectment action and to compel a conveyance of the real property, she was not competent to testify with relation to matters involved in the accounting; that being a suit in which the personal representatives of L. were interested as parties.
    2. Where L., in consideration of the right to use a patented dredging-bucket, contracted to convey certain real estate to complainant and her husband, since deceased, and in partial performance placed complainant and her husband in possession, but did not convey the property, there was sufficient part performance to justify specific performance in equity, notwithstanding- the statute of frauds.
    3. Where L. contracted to convey to complainant and her husband, since deceased, certain real estate in partial consideration for the use of a patented dredging bucket, and also to pay a money consideration, the amount of which was left to subsequent negotiation but which was never determined, a court of equity in a suit to compel performance of the contract has no jurisdiction to direct an accounting and determination of the amount of the money payment; such determination being within the jurisdiction of a court of law in an action on a quantum, meruit on an implied promise.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 74 N. J. Eq. (4 Bitch.) 852.

      Messrs. McDermott & Enright, for the appellants.

      Mr. Robert II. McCarter, for the respondents.
   The opinion of the court was delivered by

Gummere, Chief-Justice.

The primary purpose of the bill in this case is to restrain an action of ejectment brought by those of the defendants who are the widow and heirs-at-law of James D. Leary, deceased, to recover from the complainant Sarah D. Collins, the widow of William A. Collins, deceased, the possession of a house and lot in the town of Bloomfield, and to compel the plaintiffs in the ejectment suit to execute a sufficient deed of conveyance of the property to Mrs. Collins. The bill also seeks to compel the defendants to account to the complainants -for reasonable royalties payable for the use and enjoyment of a certain dredging bucket patented by William A. Collins in his lifetime. The complainants rest their right to the relief sought upon an oral contract made between James D. Leary and William A. Collins in the year 1896. The vice-chancellor before whom the case was tried found from the proofs submitted at the hearing that a contract was made between Leary and Collins, by the terms of which a dredging company, of which Leary was the controlling spirit, was to have the use of the bucket patented by Collins, and that, as a consideration for such use, Leary was to convey to Collins’s wife the Bloomfield house and lot, and also pay to him a money consideration, the amount of which was afterward to be determined upon by them. He further found that Collins and his wife entered into possession of the Bloomfield property under that agreement, and that Mrs. Collins has remained in possession thereunder ever since; but that no conveyance of it had ever been given to her, the deed having been withheld until the money consideration could be agreed upon. He further found that Collins had performed his part of the contract by allowing the dredging company to use the bucket from the time the contract was made down to his death, and that the company had continued to use the same under the contract ever since that event. He further found that the amount of the money consideration to be paid by Leary had never been agreed upon by the parties while living, nor by their representatives afterwards. On these findings he advised a decree that the defendants be perpetually restrained from further prosecuting their action of ejectment; that they be compelled to convey the Bloomfield property to Mrs. Collins; and that they be directed to account to her, as the administratrix of her deceased husband, for the reasonable value of the use and enjoyment of the dredging bucket over and above the value of the Bloomfield property, and that a reference be made to a master to take and state such account. A decree was entered in accordance with this advice, and from it the defendants appeal.

Our examination of the proofs satisfies us that the learned vice-chancellor was justified in his findings of fact; and we reach that conclusion without considering the testimony of Mrs. Collins, who, although she would have been a competent witness if the suit had been solely for the purpose of restraining the action of ejectment, and compelling a conveyance of the Bloomfield property (Smith v. Smith, 52 N. J. Law (23 Vr.) 207), was not competent tcf testify with relation to matters involved in the accounting, that being a suit in which the personal representatives of Mr. Leary were interested as parties.

But we are compelled to dissent from the view of the vice-chancellor as to the scope of the relief to which the complainants are entitled under their bill.

The contract between Mr. Leary and Mr. Collins was entirely performed by the latter. It was partly performed by Mr. Leary to this extent, that he put Mrs. Collins into possession of the Bloomfield property in execution thereof. The contract, so far as it involved matters to be done by Mr. Leary, was made up of two independent provisions — one, the eonve3rance of a specified piece of real estate, the other, the payment of a sum of money to be afterward agreed upon. So far as the first provision is concerned, it is complete and certain in all its parts. The partial performance of it is of such a character as to justify a court of equity in specifically enforcing it, notwithstanding the statute of frauds. Cooper v. Colson, 66 N. J. Eq. (21 Dick.) 328. The restraint of the action of ejectment is a corollary of the right to compel the conveyance of the property. So far, therefore, as the decree deals with this phase of the case, it is entirely unobjectionable.

But the ascertainment of the amount which should be paid in cash to the complainant as executrix of her deceased husband, as a further consideration for the right to use the dredging bucket is, in our opinion, not the province of a court of equity. Although the rights and obligations of the parties are entirely contractual, yet so far as the payment of money by the defendants is involved, that arises, not out of the express agreement of Mr. Leary to pay such sum as should be determined upon by him and Mr. Collins — • for their minds never came together upon this point — but out of the implied agreement, which the law raises up, to pay what was reasonable and fair between man and man in case Mr. Collins should perform his part of the contract, and Mr. Leary should receive the full benefit of such performance, and the parties thereafter should be unable to agree between themselves as to the exact sum to be paid. The function of determining the amount due on such an implied promise is one to be exercised by a jury in an action brought in a law court upon a quantum meruit, and' not by a court of equity in a suit brought for the specific performance of a contract.

The conclusion wldch we reach is that the decree appealed from, to the extent that it directs the defendants to account to the complainants for the use of the patented bucket, should be reversed, and that in all other respects it should be affirmed.

For affirmance — None.

For reversal — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Yooehees, Minturn, Bogeet, Yre-DENBURGH, YROOM, GRAY, DlLL, CONGDON-14.


text:
    Michael DeVita, appellant, v. Michael Loprete et al., respondent.
    [Argued December 7th, 1909.
    Decided September 16th, 1910.]
    1. A stipulation of a contract awarding to a person the right to collect and remove the garbage of a city for a specified sum that no assignment of the contract or any' part thereof shall be made without the consent of the city first obtained tends to discourage collusion among probable bidders, and to prevent extortionate contracts from being forced on the city; and equity will not deprive a municipality of the protection of such a stipulation by compelling the performance of a prior contract between such person and others for the carrying on of the contract as a partnership.

      2. Where a person has entered into two independent contracts with different persons, each valid and enforceable, equity will not compel him to violate provisions of one of the contracts to the injury of the other party thereto for the purpose of affording- relief under the other contract.
    On appeal from an order advised by Vice-Chancellor Learning, whose opinion is reported in 75 N. J. Eq. (5 Buck.) J^Zl.

      Messrs. Biker •& Biker, for the appellant.

      Mr. Franklin W. Fort, for the respondents.
   The opinion of the court was delivered by

Gummere, Chief-Justice.

This is an appeal from an order in chancery sustaining a demurrer to a bill of complaint. The bill is based upon an agreement made between the complainant on the one part, and the defendant and one Demetrio Loprete on the other, in June, 1903, by which it was provided that if either or any of the parties should at any time before August 1st, 1906, be awarded by the city of East Orange a contract for the removal and disposal of garbage within the limits of that city, the successful party would admit the others to a full one-third share of the profits of such contract; and, further, that “the partnership” thereby constituted would purchase from Michael Loprete, and that he would sell to the partnership, any or all stock, horses, wagons, or other property owned by him which might be necessary for the purpose of performing the municipal contract, such property to be purchased at a fair price to be determined upon by the parties, or, in the event of a disagreement between them, at a price fixed by appraisers. ' The bill alleges that the defendant, Michael Loprete, in June, 1906, was awarded a five-year contract by the city of East Orange, by the terms of which, for the sum of $67,000, he was required to collect and remove all ashes, garbage and other refuse matter which should be conveniently placed for removal in receptacles in front of any building or premises on any and all of the streets or other public highways of that city. It is then alleged in the bill that the defendant Michael Loprete, after obtaining this contract with the city, refused to sell his stock, horses and wagons to the partnership, in accordance with his agreement with the complainant and Demetrio Loprete, and refused to admit them to a share of the profits made by him under the contract with the city. The bill tiren prays that an account may be taken of the profits received by the defendant Michael Loprete, and that the portion thereof to which the complainant is entitled may be determined; that the defendant may be compelled to exhibit to the complainant all his books of account, checks and other papers, showing his dealings and transactions under the East Orange contract, and that a receiver be appointed to receive, hold and distribute the profits arising from the business. A copy of the contract with the municipality is annexed to the bill and made a part thereof by proper recitals.

We concur in the conclusion reached by the learned vice-chancellor that the demurrer to the bill should be sustained. We prefer, however, to rest our judgment upon a ground not adverted to in the opinion delivered by him, although, by so doing, we are not to be understood as dissenting from the views therein expressed.

The contract between the defendant and the city of East Orange contains, among others, the following provision:

“No transfer or ‘assignment of this contract, or any part thereof, or of any money due or to grow due thereon, shall be made, without the consent of the city council of Bast Orange first obtained and expressed by resolution of the said city council; and should any such transfer or assignment be made the city council of East Orange shall have the right at its option, by resolution, to terminate this contract.”

One of the purposes of this provision is, manifestly, to prevent a collusive arrangement between parties who might otherwise be bidders on the contract, by which the city would be deprived of the benefit of competition between them, and one of their number enabled (perhaps) to obtain an award of‘the contract at an exorbitant figure. The importance of such provisions in municipal contracts is great; they are absolutely necessary for the protection of municipalities against extortion. The effect of granting to the complainant the relief sought by his bill would be to deprive the city of East Orange of the benefit of this provision of its contract, for it is not suggested in the bill that it has consented to any transfer or assignment bjr Michael Loprete to the complainant of any interest in the contract, or of any money due or to grow due under it. It may be thought that the cityr received all the benefit which could come to it from the provision when the bidding on the contract was closed, and the contract itself was awarded, and that, therefore, it cannot be harmed •by enforcing the rights of the complainant against the defendant under the agreement between them; but a moment’s consideration will show that this is not so, for the provision would be no protection at all to the city if it could be violated as soon as the contract was signed. It is its enforcement which tends to discourage collusion among probable bidders, and prevents extortionate contracts from being forced upon, the municipality.

Where a person has entered into two independent contracts with different parties, each equally valid and enforceable against him, a court of equity will never compel him to violate material provisions of one of them, to the injury of the other party thereto, for the purpose of affording relief under the other. This being the situation disclosed upon the face of the present bill, it is clearly demurrable for want of equity.

The order appealed from will be affirmed.

For affirmance — The Ci-iiee-Justice, Garrison, Svvayze, Trenoiiard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgii, Vroom, Gray, Dill, Congdon — 14.

For reversal — None.


author: Garrison, J.

text:
    Kate Faulkner, respondent, v. John Wassmer et al., appellants.
    [Submitted April 5th, 1910.
    Decided July 8th, 1910.]
    1. A purchaser who has a right to elect whether or not he will rescind a sale because of material misrepresentations must exercise such right with reasonable promptness, otherwise his delay in so doing will afford plenary proof of an election not to rescind which is final. The delay to which this probative force is given is that which arises from the vendee’s failure to rescind during the period of time within which one would naturally act who knew that to act effectively he must act promptly.
    2. The distinction pointed out between the rescission of a contract and an action for deceit in respect to the compensation recoverable.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is as follows:
    “Howell, V. C. (orally).
    “This bill is filed by Mrs. Faulkner, the wife of Alfred Faulkner, against John Wassmer and Henry M. Eadcliffe for the purpose of rescinding a deed of conveyance of lands on Smith street in the village of Irvington. The deed was dated on the 1st day of July, 1908; was acknowledged on the 9th day of July, 1908, and was recorded on the same day. It conveys to Mrs. Faulkner a lot "of land on Smith street subject to certain restrictions which arc fully set out in the deed and are fully copied in the hill of complaint. The evidence shows that Mr. Faulkner first saw the land in question about the 4th day of May, 1908, and that within a day or two after that he saw Mr. States, who is a real estate agent, and who was specially authorized by Mr. Wassmer and Mr. Eadcliffe to make sales of the lands in question. The bill charges that Mr. Wassmer and Mr. Eadcliffe were partners in this enterprise, although the lands which they were disposing of were held in severalty by them. Mr. Faulkner had notice that the lands were restricted. He saw a large sign on one of the lots near the corner of Smith street and Clinton avenue which contained the information that the land in that neighborhood was restricted land. In order to ascertain what the restrictions were he went to see Mr. States, who showed him a typewritten copy of the restrictions and stated to him that the land in that neighborhood was restricted in that manner, and Mr. Faulkner says in addition to that that Mr. States told him that the restrictions were matters of record. Some days after that, one evening while Mr. and Mrs. Faulkner and their daughter were examining the premises, Mr. Wassmer appeared and there was still further conversation about the restrictions; and on those occasions, one or more of them, the extent of the tract of land owned by them and so restricted was talked about and the extent and area of the restrictions discussed. The evidence indicates to my mind that probably Mr. Wassmer and Mr. RadclifEe intended to restrict the whole tract by a general scheme which was embodied in the typewritten statement that they gave to Mr. States to show to intending purchasers. Now that was the situation at the time that Mr. Faulkner paid the first twenty-five dollars; that I think was on the 5th day of May, 1908, and Mr. Faulkner is chargeable with notice of restrictions of some sort or other by the receipt which he took at that time, because that states that the conveyance was to he made subject to restrictions, a copy of which had been previously shown to him by Mr. States in his conversation with Mr. States; hut I think on the whole that Mr. Faulkner acting on behalf of Ms wife, and Mrs. Faulkner acting on her own behalf, were justified in believing that the tract of land which was pointed out to them by Wassmer and by States as the- tract of land that was owned by Wassmer and RadclifEe was restricted throughout in accordance with the restrictions that were shown to them by Mr. States. They were under no obligation (as contended by the complainant) to go to the public records to find out whether the restrictions were on record. They had the right to rely on the statements made to them by Mr. States and the owner of the property.

      “Now I take it that there was a representation made by Mr. Wassmer and Mr. Badcliffe either personally or through their agent that this whole tract was restricted in accordance with the plan of restrictions disclosed by Mr. States. I think that was a statement which led the Faulkners to make the purchase; I think that was a statement of a material fact, and that a misrepresentation in regard to it would entitle them to relief. Now what is meant by restrictions, restrictions of the whole tract? Why, surely; not something that is temporary, but something that is permanent, something that runs with the land, something that is enforcible by somebody, and in this case I should say enforcible by Mis. Faulkner, the purchaser of a portion of the restricted land. And it becomes a very material fact in the case, I think, to determine just exactly what is meant by the statement that was made to them by Mr. States and by the owners. I think that there was a statement made that the whole tract was restricted, and that they had a right to act upon the statement and to pay their money and close up the deal, believing that that statement was true.
    “Now what was the situation at the time the statement was made ? The statement was made I believe in the early part of May, 1908. At that time a lot had been agreed to be sold to Mr. Krah by an agreement in writing which contained no restrictions whatever. I do not see how I can keep the Krah Case out of this case. It was tried before me by counsel who is engaged in this ease; the defendants were the same persons who are the defendants in this case, and I hardly see how I can say that I do not know about it. That case came to a final hearing, and under the circumstances and under the evidence in that case the opinion of the court was that Mr. Krah was entitled to a deed containing no restrictions. See Krah v. Wassmer, 75 N. J. Eq. (5 Buch.) 109. Now, it appears also that at that time (that is, at the time of the delivery of the Faulkner deed) a conveyance had been made to Mr. Williams, also without restrictions. It also appears by the testimony in this case that there were three mortgages made upon three separate parcels of land belonging to this tract to three several building and loan associations. Those three mortgages were put in evidence, and it appears upon an inspection of them that they contained no restrictions. It also appeal's by the evidence of Mr. Wassmer himself that there are upon the tract or were then upon the tract other mortgages, and that the whole number put by them upon the property was thirteen or fourteen, and that none of them contained any restrictions. I consider that a very important element in this ease. While it is true, as is argued on behalf of the defendant, that mortgages are mere security for the repayment of moneys loaned on the faith of them, it is likewise true that at law the mortgagee has an additional right, namely, to take possession of the property mortgaged in case of a default; in such ease he may foreclose his mortgage, and the person who takes the sheriff’s deed would take title free and clear of all the restrictions, unless it could be shown positively and directly that the building and loan association was duly informed of the restrictions at the time it took its mortgage. That brings up another question, too; whether by the making of those mortgages without restrictions the defendants evinced an intention to abandon the restrictions. It is difficult to say whether it would have that effect, whether it would have the effect of an abandonment from the view point of their intention; but from the view point of actuality is it not an abandonment ? Is it not a giving up by them of their right to control these mortgaged premises? Although they may have been conveyed subsequently to the making of the mortgages, subject to restrictions, would not -a foreclosure of the mortgage cut out the restrictions? I mean actual restrictions put in a deed after a mortgage was made — wouldn’t a foreclosure of a mortgage cut out those restrictions? That I understand is the situation. There may be some doubt as to whether the intention that Mr. Wassmer and Mr. Radcliffe had in mind to restrict this property was given such publicity and efficiency as to bind people who should purchase a portion of the property. Of course I do not think it would bind people to whom no notice of it ever came; but it could hardly be said that Mr. Wassmer could have restricted his property by keeping in his own mind the fact that •he did restrict it, and that he intended to restrict it, without doing something to actually restrict it. What did he do when the building and loan associations came to examine the property ? He remembers one case in which he notified the examining committee of the building and loan association that the property was restricted, but they were very careful not to put any restrictions in their mortgage; and I doubt whether notice to the committee would be notice to the building and loan association anyhow.
    “So that I am very clear that there was a representation made by the defendant Wassmer of a material fact which at the time it was made was untrue, and that the complainant is entitled to a rescission of the contract upon equitable terms.
    “The defendants say that the bill is filed for the purpose of recovering damages — no, not for the recovery of damages, much less for the recovery of unliquidated damages, because if there are any damages following in the trail of this transaction, as set out in the bill, they are not unliquidated damages. It is very well settled in Kew Jersey now' by the recent decision of our court of appeals that this court will not entertain a suit for unliquidated damages, but will entertain a suit for liquidated damages, damages that can be liquidated, damages of a variety that do not have to go to a jury.
    “There are some expenditures here which seem to me to be chargeable against the two defendants, and I say the two defendants because they are charged in the bill as partners, and they admit by the answer that they are partners in this whole enterprise; and therefore whatever personal claim would run against anybody would run against both of them. Therefore I say that the complainant on tire rescission of this deed of conveyance would have a right to charge against both of these parties whatever amount of money was paid out by her, necessarily paid out by her on the faith of the instrument, because I am going to limit it to the necessity — necessarily paid out by her in consequence of the making of the contract and the deed.
    “It is impossible from the testimony for me to tell now just what those items would be, and it will have to be referred to a master for the purpose of ascertaining the same, unless counsel can agree.
    “One of the defences that is set up is the defence of acquiescence, and consequently of laches. The doctrine relating to that question is pretty well settled in New Jersey in the case oí Dennis v. Jones, -44 N. J. Eq. (17 Stew.) 51S. In Dennis v. Jones there was an attempt made to set aside a chattel mortgage on the ground of fraud, and there the question of laches was discussed, and it was held that in case of a rescission the party rescinding the contract must bring his suit at the very earliest possible moment. But I do not think a delay from August until November is such a delay as would admit the defence of laches. It is not shown that during that period the defendant’s situation was changed at all, and it does not appear that the delay has caused the defendants any damage.

      “I will advise a decree in accordance with these views.”
    From this decree the defendants have appealed.

      Mr. Frank E. Bradner, for the appellants.

      Messrs. Osborne <& Astley, for the respondents.
   The opinion of the court was delivered by

Garrison, J.

We agree with the learned vice-chancellor that Mrs. Faulkner purchased the lot in question upon an untrue representation of such a nature that, upon the discovery of its untruth, she was entitled to elect to rescind the sale. We do not, however, agree that such election was still open to her four months later when the present bill of complaint was filed declaring for the first time her election to rescind. At this time, viz., November 28th, 1908, her right to elect, which arose on or about July 10th, 1908, no longer existed, not upon the doctrine of laches, discussed in the conclusions filed in the court below, but upon the ground that the lapse of such a length of time under the circumstances afforded plenary proof of an election by her not to rescind to which conclusive effect should have been given.

The learned vice-chancellor was in error in testing the complainant’s right to elect solely by the doctrine of laches and notably so in conceiving that the decision of this court in Dennis v. Jones, 44 N. J. Eq. (17 Stew.) 513, turned upon that doctrine which, in point of fact, was not even mentioned in the opinion of Chancellor McGill in this court. Dennis v. Jones was decided not upon the gwsi-estoppel that is involved in the doctrine of laches, but upon a totally different ground, viz., that of conduct-evidence.

Authorities cited by Chancellor McGill had settled the law “that the defrauded party to a contract has but one election to rescind, that he must exercise that election with reasonable promptitude after the discovery of the fraud and that when once he elects he must abide by his decision;” other cases cited in the opinion had held that “delay in the rescission of the contract is evidence of a waiver of the fraud and an election to treat the contract as valid.” The approval and adoption of both of these lines of decision by this court in Dennis v. Jones resulted in our holding “that, after the appellants had knowledge of all the substantial features of the alleged fraud and were fully aware of the deceit which had been practiced upon them, they so acted as to afford plenary evidence of an election to abide by their contract,” and that “their election thus made was irrevocable.”

It is this rule, and not the doctrine of laches, that Dennis v. Jones lays down and illustrates.

To the same effect is the more recent case of Clampitt v. Doyle, 73 N. J. Eq. (3 Buch.) 678. The rule of Dennis v. Jones is so clearly stated by Chancellor McGill that in actual practice the only question likely to arise is whether or not the delay was such as to warrant its application, i. e., whether the vendee’s failure to act extended beyond the period within which one would naturally act who knew that to act effectively he must act promptly. The question in itself is not peculiar to this class of cases; it is present in all cases involving a reasonable time, concerning which, it is admitted, that no hard and.fast rule obtains and also that the difficulty that exists in cases that lie close to the line disappears with the lapse of time that has been permitted to intervene. Thus the question whether a landowner, who is under a duty to make repairs upon notice, is in default on the very day he had notice or the day after may present difficulties that entirely disappear if he has suffered weeks and months to elapse. The case before us is of this latter character in that an election that could in reason have been made within a few days, or at most a few weeks after the right to make it arose, was, without any adequate excuse that was consistent with promptitude of action, delayed for months. It is precisely this conduct that (as we decided in Dennis v. Jones and Clampitt v. Doyle) affords plenary proof of an election to abide by the contract, which is irrevocable. For this reason the 'bill of complaint should have been dismissed by the court of chancery, and for this reason the decree of that court must be reversed.

This result renders it unnecessary to do more than allude to the fact that the prayer of the complainant’s bill with respect to the several sums to be paid to her by the defendants in excess of purchase price, interest, insurance and taxes, is made up for the most part, if not wholly, of items for which a court of equity, upon the rescission of a contract, gives no compensation; as to some of them, because they are in the nature of unliquidated damages, and as to others, because of the essential difference in this respect between the rescission of a contract and an action for deceit based thereon.

To obtain the former, the complainant must show a material misrepresentation not necessarily untrue to the knowledge of the defendant; whereas the gist of the action for deceit is conscious falsification — hence the injured party may not, by selecting the action that is the more easily proved, obtain in equity the measure of redress that is recoverable only when the more onerous burden has been sustained in a court of law. This distinction is pointed out in Redgrave v. Hurd, 20 Ch. Div. 1; Newbigging v. Adam, 34 Ch. Div. 582; 13 App. Cas. 308, and is treated extensively in the notices in 6 Eng. Rul. Cas. 754 et seq.

The theory of the complainant’s bill as exemplified by its specific prayer for relief is entirely indefensible, and the decree, therefore, granting such relief in general terms is, upon its face, erroneous.

The learned vice-chancellor, however, in his conclusions expressly disavowed the purpose of allowing unliquidated damages, and confined his order of reference to such improvements as were the “necessary and proper consequences” of the sale that was set aside. Inasmuch, however, as “necessary” is quite generally construed to mean “suitable,” rather than “indispensable” (New Jersey, &c., Railroad Co. v. Hancock, 35 N. J. Law (6 Vr.) 537; Camden, &c., Railroad Co. v. Woodruff, 36 N. J. Law (7 Vr.) 94; Morris, &c., Canal Co. v. Love, 37 N. J. Law (8 Vr.) 60), it may be doubted whether the error of the decree was thereby removed or rendered harmless to the defendant. The matter, however, need not be further pursued since the decree must be reversed and the bill dismissed for the reason first given. To this end the decree is reversed.

For affirmance — None.

For reversal — Tiie Ci-iiee-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgi-i, Vroom, Gray, Congdon — 13.


text:
    Aline E. Crane et al., respondents, v. Delphine McMurtrie et al., appellants.
    [Submitted April 4th, 1910.
    Decided November 14th, 1910.]
    1. It is an established rule of construction that the words of a private grant, if equally susceptible of two meanings, shall be taken most strongly against him who uses them.
    2. In a deed the words of description were “three hundred inches of water under a two and one-half feet head.” It was shown that this was the equivalent of nine hundred and forty-eight cubic feet of water per minute if measured by the “practical inch,” and upwards of one thousand five hundred cubic feet per minute if measured by the “theoretical inch.” There was nothing in the context or in the contemporaneous circumstances to show whether the larger or the more restricted meaning was intended. — Held, that as against the grantor and those claiming under subsequent grants from him the larger meaning would be taken as intended.
    3. ' A grantor cannot by creating practical difficulties, after lie has made a grant that is free from them, defeat a grant already made or influence its legal construction.
    4. A court required by the issue to determine the legal rights of parties by construing their written grants may upon proper pleading assume the further task of laying down a practical rule for their enjoyment, but if either must give way it must be the latter, since the prime office of courts is to determine rights, not to mould them to circumstances.
    Appeals from a decree of the court of chancery advised by Henry C. Pitney, advisory master, whose opinion is reported in 68 Atl. Rep. 892.

      Mr. Wayne, Dumont and Mr. William II. Corbin, for the Barn-ford Brothers, appellants.

      Mr. William II. Morrow, for Abram McMurtrie, appellant.

      Mr. George M. Shipman, for Delphine McMurtrie, appellant.

      Messrs. Smith & Brady and Mr. John W. Harding, for Aline E. Crane, respondent.
   The opinion of the court was delivered by

Garrison, J.

The decree brought up by these appeals undertakes to settle the respective rights of three parties in their proprietary use of a water power. The description of these rights and the history of their acquisition by the several parties are so fully stated in the opinion of the learned advisory master that without any extended restatement of the case we may proceed at once to point out the two matters in respect to which we have come to a conclusion different from that reached in the court below.

The three parties to the litigation are Crane, Bamford and McMurtrie, each of whom has by grant a property right to a certain quantity of the water that flows through an artificial raceway on the Pequest river in Warren county. These grants, which are in effect from a common grantor, are, in point of time, first that of Bamford, then that of Crane as to one of her grants, then that of McMurtrie, and lastly, the second Crane grant.

The only questions with which we find it necessary to deal are first as to the manner in which the ascertainment of the quantity of water to which Bamford is entitled was treated in the decree, and second!}7, the proper construction of the grants of Crane and McMurtrie.

The present litigation was started by the filing of a bill by Mrs. Crane, by which she claimed that she owned one-fourth of the flow of the water in the raceway, with which right she alleged that Bamford and McMurtrie had interfered by placing in the raceway an obstruction with an aperture that permitted less than one-fourth of the flow to come to her. The prayer of the bill was for the removal of this obstruction, and that the defendants be enjoined from interfering with the complainant’s right. Bamford and McMurtrie, by their answers, denied the complainant’s right to the proportion of the flow asserted by her, and by their cross-bills asked the court of chancery to determine the respective rights of the parties to the flow of the raceway and to decree how such flow shall be gauged so as to secure the several enjoyments thereof.

The substantial questions therefore on which the parties joined issue and went to trial were first their respective proprietary rights as grantees of the water flowing through the raceway, and secondly, how such rights when determined should be practically enjoyed by their several owners. The first question which is one of the construction of written grants admits of a conclusive judicial answer based upon the established canons of that branch of the law; the latter, which is a problem in applied physics, may or may not admit of precise solution by the judicial application of the scientific data furnished by the testimony to tlje practical situation; if either must give way, it must be the latter, since the prime duty of the court is to determine rights. Whether such rights when determined can be practically adjusted by the decree of the court or whether they must be left to such adjustments or compromises as the owners of such rights alone have the power to make, depends upon the nature of such rights and the facts of the given case. Clearly tlie rights of the parties come first. These remarks are made, because in each of the respects in which we differ from, the conclusions of the learned advisory master, it seems to us that in a juncture in which either the rights of the parties or the regulation of such rights must give way the decree gives precedence to the latter over the former.

From the decree, which was in all substantial'respects favorable to the complainant, Bamford has appealed and McMurtrie has appealed. Mrs. Crane has not appealed.

Bamford’s appeal challenges that part of the decree by which his right to the water flowing through the raceway is limited to nine hundred and forty-eight cubic feet per minute. The decree adjudges that this is the equivalent in cubic feet of “three hundred inches of water under a two and one-half feet head,” which is the language of Bamford’s grant.

It is not questioned that this is a correct result if the language quoted be construed as requiring that the flow of water thus described is to be measured by the “practical inch,” which the learned advisory master explains in his opinion and applied in the decree that he advised. It appears, however, from the testimony and in the conclusions of the advisory master, that there is another niode of measuring such a flow, viz., by the “theoretical inch,” which, if applied to the flow of water called for by Bamford’s grant, would give him upwards of one thousand five hundred cubic inches of water per minute. Upon the assumption that the language of the grant was equally consistent with either of these modes of measurement the decree gave to Bamford the less favorable of the two. This is the adjudication that Bamford challenges by his appeal.

The reasons given by the learned advisory master for adopting the mode of measurement that he did, and for his rejection of the other mode, are set out in full in his opinion and need not be repeated here excepting as to his final conclusion in which after saying: “I shall not attempt the difficult task of deciding between these conflicting views,” he announced that he would “adopt the views of the defendants’ engineers.” Just what was meant by this, we cannot say, but assuming that it referred to some evidence given in the cause, we have examined the testimony of all of the witnesses called by either Bamford or McMurtrie without discovering anything that could be construed into an abandonment by Bamford of his right to have the benefit of the most favorable construction of his grant, even assuming that the witnesses in a cause can by anything they may say so affect the rights oE the litigating parties. The expert testimony, it is true, afforded the practical data for the application of each moje of measurement, but did not bind the party who produced such testimony to either mode conclusively; certainly not to the mode least favorable to such party.

The chief reason, however, for not rehearsing the considerations stated in the conclusions of the court below, is that they signally fail to overcome the well-established rule that, in the construction of private grants, words equally susceptible oE two meanings shall be taken most strongly against him who uses them. “It is a maxim in law that every man’s grant 'shall be taken by construction of law most forcible against himself.” Co. Litt. 183a.

The reason given for this rule in Cruise Dig., tii. 32 ch. 20 § IS, is;

“That the principle of self interest will make men sufficiently careful not to prejudice themselves by using words of too extensive a meaning; and all manner of deceit is hereby avoided in deeds; for men would always affect ambiguous expressions if they were afterwards at liberty to put their own construction on them.”

To the same effect is Shep. Touch. 87 :

“When a party introduces an expression having two meanings, one larger the other more limited, he cannot afterward set up the narrower construction,” is the text of a note to Elphinstone on the Interpretation of Deeds, p. 94, which the American editor has illustrated by a large number of citations. It may be freely admitted that this rule does not apply where a different construction is made necessary by the context or where to apply it would be to work a wrong, and also that contemporaneous circumstances may lead to its rejection. In the case in hand, however, none of these conditions is present to militate against giving to this rule its full effect. There is no context to modify the terms employed by the grantor and no wrong done by construing such terms according to legal rule; while the contemporaneous circumstances run with the rule rather than against it. The grant to Bamford’s predecessor in title was the earliest made of this water power. It was presumably made to attract manufacturers, and hence liberal. It was without qualification a grant of “three hundred indies of water under a two and one-half feet head,” and no mode of measurement suggestive of the practical inch -was provided. In this last respect it was on its face more liberal than subsequent grants, for in subsequent grants the same grantors specified that the water granted was to be “gauged by an aperture in the raceway,” which shows that they knew how to impress such narrower effect upon their grants. The practical difficulties that have arisen from the difference in the grants could not have been in the mind of the grantor when the earliest one was made, for they had not then arisen and would not have arisen but for the changed language of the later grants. A grantor cannot, however, by creating practical difficulties, after he has made a grant that is free from them, defeat the grant he has already made or introduce adverse elements to affect its legal construction. In fine whatever went out of the grantor by the Bamford grant stayed out of him, and thereby diminished his title; and those claiming thereunder can rise no higher than their grantor’s rights or invoke or repel legal rules for the construction of his earlier grant that he himself could not.

Assuming, therefore, that it is possible to read Bamford’s grant as if it contained the language that was inserted in the later grants and not in his — a pretty violent presumption in view of the actual language employed — and assuming also as we must, that it is also possible to reach such grant as it was written, i. a., free from such narrower mode of measurement, then by force of the rule stated such grant should be given the meaning most favorable to its grantee as against the grantor or those who claim under his subsequent grants. This is the construction that we think should be given to Bamford’s grant and to it the testimony taken in the cause be applied. To this end the decree upon Bamford’s appeal must be reversed.

McMurtrie’s appeal also turns upon a question of the construction of grants, viz., those of McMurtrie and Crane. Eor the proper presentation of the question involved the language of each grant must he quoted.

■ In the first of the two Crane grants the language pertinent to the water right was this:

“together with one hundred inches of water under a two feet head to be gauged-by an aperture to be fixed by the party of the first part at their own proper costs and expenses and to be taken out of rhe raceway of the party of the first part opposite the south end of the aforesaid lot; it being agreed and understood between the parties to those presents that, as between them, the whole quantity of water is to be estimated at eight hundred inches under a two feet head; and if at any time the quantity of water should be less than that amount the parties of the second part, their heirs and assigns, are to use only their proportionable share, namely, one eighth; and the parties of the second part for themselves, their heirs and assigns, covenant and agree to and with the parties of the first part, their heirs and assigns, to pay their proportional share, namely, one eighth, of all sums that may be necessary or proper for keeping up and keeping in good repair the dams and raceways, with their appurtenances, by which the water is brought down.”

Next in order of time was the grant to McMurtrie, of which the following is the pertinent language:

“together with the undivided half part of two hundred inches of water under a two feet head, to be gauged by an aperture to be fixed and taken out of the raceway passing through said lot, excepting and reserving out of said lot and premises the said race which passes through said premises about twenty feet wide, and also the easement or roadway between the said race aforesaid and the front of the foundry building and between the race and the saw mill, which is located on the said premises, and also the easement and road which passes through said premises north of said saw mill, with the full understanding that said road as it now exists passing in from Hardwick street in front of said saw mill and foundry and also passing around in the rear of said saw mill and foundry and out into Hardwick street again is not to be blocked up bur to be kept open for the passing of horses and wagons to pass around the buildings and said premises and for the accommodation of the adjoining-premises and the public forever. And it is further understood and agreed by the parties that the whole quantity of water in the water power of the Pequest Creek is estimated at eight hundred inches of water under a two feet head, and that the undivided half part of the two hundred inches of water hereby conveyed is subject to the rights conveyed heretofore to the Belvidere Manufacturing Company, and if at any time the quantity of water in said water power should be less than eight hundred inches of water, only the undivided half part of the two-eighths of the balance of the water, which remains after the Manufactory aforesaid has received the quantity to which she is entitled, shall be used at the said mill by virtue of this deed. And also that the said McMurtrie is to pay the half part of the two-eighths of all sums that may be necessary or proper for keeping up and in good repair the dams, banks and race way with théir appurtenances by which the water is brought down into the’ reservoir and let out of said race way as may be determined by a majority of the owners of said water power or those who have rights therein.”

Lastly is the second Crane grant, viz.:

“One undivided one half or moiety of all those two certain tracts of land, and the one undivided one half of two hundred inches of water under a two feet head, to be gauged by an aperture to be fixed and taken out of the race way through any land which the said party of the second part now owns or may acquire by this conveyance, the said water being part of the water of what is known as the upper water power in said Town of Belvidere.”

Then follows a complete description of the lot of land conveyed and some reservations of rights not important in this connection.

Then follows this clause:

“And it is further understood and agreed by the parties that the whole quantity of the water power of the Pequest Creek is estimated at eight hundred inches of water under a two feet head, and that the undivided half part of the two hundred inches of water hereby conveyed is subject to the rights conveyed heretofore to the other parties who have become owners of portions of said power. And if at any time the quantity of water in said water power shall be less than eight hundred inches of water, only the undivided half part of the two-eighths of the balance of the water which remains after the Belvidere Manufacturing Company has received the quantity to which it is entitled shall be used by the party of the second part by virtue of this deed; and also that the said party of the second part is to pay the half part of two eighths of all sums that may be necessary or proper for keeping up and in good repair the dams, bank and race way with their appurtenances by which the water is brought down into the reservoir and let out of said race way as may be determined by a majority of the owners of said water power or of those that have rights therein.”

In dealing with the language of these several grants the court below construed the hypothetical proviso as to the eight hundred inches of water as not confined to the particular juncture indicated in the grant, viz., when the flow should be less than such estimated amount, but, on the contrary, held that such provisional estimate should be applied also to the grant of a specific number of inches of water that had already been made in express terms, thereby making the entire grant a proportional one.

We think that this was error in construction'. Each grant conveyed an express number of inches of water under a specified head to be gauged through an aperture in the raceway. This was definite and concrete; the subsequent hypothetical proviso that the whole quantity of water should be understood to be eight hundred inches had relation by its context solely to the contingency with which it was coupled, viz., when the flow of the water in fact fell below eight hundred inches, and to the other object expressed, viz., as a guide to the distribution of the expenses of maintenance.

This being the clear reading of the grants, such meaning should have been given to them regardless of the convenience or inconvenience of the practical regulation of the flow of water by the decree of a court or even in view of the impracticability of such regulation.

By the construction adopted by the court below the right of the parties to have their grants construed according to law was made to give way to the feasibility of judicial regulation. This is shown by the court’s own comment upon the construction it thus adopted:

“I am the more ready to adopt that construction,” said the learned court, “since it avoids the great difficulty of apportioning the waters between these parties strictly in accordance with the language of the conveyances, if the defendant’s construction should be adopted.” We think that it was the defendant’s right to have the conveyances construed strictly according to their language regardless of the difficulties of apportionment that might result therefrom. Such apportionment was a subordinate consideration; the prime office of the court was with the rights of the parties. A right judicially declared is something the parties themselves can deal- with, even where courts cannot, for the party may make compromises or even concessions that a court is not authorized to make in his stead. Th'e mere submission of the question of practical apportionment did not vest the court with authority to give away the rights of parties or to construe the instruments by which such rights were evidenced otherwise than by legal rules. Such a submission is a mere matter of pleading, it is not tantamount to a power of attorney.

Por the reasons stated we conclude that upon McMurtrie’s appeal the decree should be reversed, to the end that it may be made to conform to the views herein expressed.

In the matter of costs, Mrs. Crane, inasmuch as she brought the defendants into the court of chancery, where, in our judgment, she was not entitled to a decree in her favor, should pay their costs in that court. Bamford and McMurtrie were each forced to come to this court for the correction of the decree Mrs. Crane obtained in the court of chancery. She should therefore pay the costs of these appeals, including printing; the part of the decree from which Bamford appealed was, however, favorable to McMurtrie as well as to Mrs. Crane, and he sought here to sustain it; Bamford’s costs in this court, therefore, should be paid jointly, i. e., equally -by Mrs. Crane and McMurtrie.

The decree will be reversed and remitted to the court of chancery for such modifications and for such further proceedings, if any, as may be required by the foregoing views.

No. 9—

For affirmance — None.

For reversal — Ti-ie Ci-iiee-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Voori-iees, Minturn, Bogert, Vredenburgh, Dill, Congdon — 12.

No. 10—

For affirmance — None.

For reversal — Ti-ie Chiee-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgh, Dill, Congdon — 12'.

No. 11 — •

For affirmance — None.

For reversal — The Chief-Justice, Garrison, Swayze, Trenoiiard, Parker, Bergen, Yoori-iees, Minturn, Bogert, Yredenburgh, Dill, Congdon — 12.


author: Swayze, J.

text:
    Aaron E. Johnston, executor of Mary E. Throckmorten, respondent, v. Thomas B. McKenna and Hugh E. O’Reilly, appellants.
    [Argued June 29th, 1910.
    Decided November 14th, 1910.]
    The equity of redemption of mortgaged property was held by V., a purchaser at execution sale against the mortgagor, who was holding it for her benefit after payment of his claim, the property being worth about twice the amount of all liens. Shortly before sale on foreclosure of the mortgage, defendants, by fraudulently representing that they were acting for the benefit of the mortgagor in an attempt to clear off the liens, prevailed on Y. to convey the equity of redemption to them. They then purchased at the foreclosure sale for full value, and under their conveyance from Y. were released from payment of the balance after paying in enough to discharge liens. — Held that, in a suit by the mortgagor to hold them liable as trustees e® maleficio for the surplus on the sale, their liability was measured by the amount of the bid at the sale and not by a lesser amount subsequently received by them on sale of the land; the mortgagor under the circumstances being entitled to affirm the sale and thus fix the liability for the amount brought thereat.
    On appeal from a decree of tlie court of chancery advised by Yice-Chancellor Howell, whose opinion is reported in 76 N. J. Eq. (6 Buch.) 217.

      Mr. Aaron E. Johnston (Mr. Frank P. McDermott, on the brief), for the respondent.

      Mr. William A. Smith (Messrs. Coult & Smith, on the brief), for Thomas B. McKenna.

      Mr..Oharles J,. Roe (Messrs. Roe & Runyon, on the brief), for Hugh E. O’Reilly.
   The opinion of the court was delivered b3r

Swayze, J.

It would be unnecessary to add anything to the opinion of the vice-chancellor in the present case but for the strenuous contention on the part of the appellants that he erred in charging them with the amount for which the property was sold at the sheriff’s sale. It is contended that if O’Reilly and McKenna were trustees, it was their duty to protect Mrs.' Throckmorten’s property by buying it in at the sheriff’s sale, and that they are accountable not for the $16,300 at which it was struck off, but only for $14,500, the amount for which the property was subsequently sold. This would undoubtedly be the ease if they had purchased the property at the sheriff’s sale in execution of an ordinary trust, but the difficulty with that argument in the present case is that by their own conduct they repudiated the idea that there was a trust and insisted that Reilly was an actual purchaser and that Mrs. Throckmorten had no interest in the property. Reilly was evidently acting for McKenna and O’Reilly, and it would be inconsistent now to permit them to set up that the property was bought in for Mrs. Throckmorten’s benefit. They assumed, through Reilly, to buy it for themselves. The trust, as this court held when the case was formerly before us, arises ex maleficio, and under such circumstances it was the right of the cestui que trust to affirm the sale and seek to recover the purchase-money, as she and her executor have done.

The reasoning of Vice-Chancellor Pitney in the suit against Reilly (68 N. J. Eg. (2 Robb.) 151), is satisfactory, and the same legal rules are applicable in the present suit against Mc-Kenna and O’Reilly.

The decree is therefore affirmed, with costs.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenohard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgi-i, Vroom, Dill, Congdon — 13.

For reversal — None.


text:
    The Mayor and Council of the Borough of Spring Lake, respondent, v. Karl T. Polak and William G. Johnson, appellants.
    [Argued June 22d, 1910.
    Decided November 14th, 1910.]
    1. A dedication of land which arises in part out of deeds for lots delineated upon a map is subject to private rights created by the deeds not inconsistent with the dedication.
    2. A provision in deeds for lots delineated upon a map out of which in part there arises a dedication of an ocean beach, that lot owners may erect neat bath houses, is not inconsistent with the ordinary purposes for which such a beach is used.
    3. Deeds for lots delineated upon a map upon which a portion of the tract was marked “beach,” provided that all the land designated as beach should be open and free to the use of all the lot owners, but no buildings except neat bath houses should be erected thereon, and those only by owners of certain lots. — Held, that the effect of the provision was to give the owners of those lots the right to erect bath houses.
    4. The right of lot owners to erect bath houses upon -an ocean beach includes the right to maintain such ropes for bathing as are in common use.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Iiowell, whoso opinion is reported in 76 N. J. Eq. (6 Buch.) 212.

      Mr. Robert II. McCarter (Messrs. Dwand, Ivins & Carton, on the brief), for the respondent.

      Mr. Bichard V. Lindabury (Mr. Aaron E. Johnston, on the brief), for the appellants.
   The opinion of the court was delivered by

Swayze, J.

We agree with the learned vice-chancellor that the deeds, the map, the conduct of the lot owners and of the municipality taken together manifest an intention on the part of all concerned to consider the property as property devoted to public uses. We agree, also, with the view expressed by Mr. Justice Dixon in the case of the Borough of Spring Lake v. Shipley, that the deeds for the several lots on the Brighton Land Association map did not, of themselves, dedicate the bluff and beach to public use, and that their legal effect was to vest the fee of the bluff and beach in the grantees of the lots fronting on Ocean avenue, subject to a common right in all the owners of the lots on the map to have the bluff kept open and free as a park or promenade for their use, and to have the beach kept open and free for their use. We agree, also, with the view expressed by him that this common right is subject to the right of the owners of lots fronting on Ocean avenue to erect light, open and neat summer-houses on the bluff, and neat bath houses on the beach in front of their respective lots. The learned vice-chancellor deduced from these propositions a right on the part of the borough to prevent the owners of lots fronting on Ocean avenue erecting ropes for bathing purposes. In this we think he erred. The public right which the borough is seeking to vindicate arises in part out of the deeds for lots delineated on a map, and those deeds expressly provide that all the land designated on the map as beach shall be open and free to the use of all the owners of lots on said map, but no buildings except neat bath houses shall be erected thereon, and such bath houses may be erected only by owners of lots fronting on Ocean avenue in front of their respective lots. The effect of this provision in the deeds was to give the owners of lots fronting on Ocean avenue the right to erect bath houses, and since that right preceded and was in part the foundation of the public right, the dedication was necessarily subject to burdens created by that provision of the deeds not inconsistent with the dedication, and so Mr. Justice Dixon held in the Shipley Case, with reference to the right of the owner to maintain summer-houses on the bluff. A dedication subject to a burden of this character is permissible. Ayres v. Pennsylvania Railroad Co., 52 N. J. Law (23 Vr.) 405; Tallon v. Hoboken, 59 N. J. Law (30 Vr.) 383. Such a burden is not inconsistent with the use of the beach for the ordinary purposes for which it is used.

The only question then is whether the right of the lot owners to erect bath houses upon the beach includes also the right to maintain ropes for bathing, such as are in common use along our coast. The only possible object of permitting the owners to maintain bath houses was to afford facilities for bathing in the ocean, and it appears in the case that in order that people may bathe in safety, ropes are, if not absolutely necessary, at least reasonably necessary. Indeed, one of the contentions on the part of the complainant was that the ropes maintained by the defendants were not of such character as to make the bathing as safe as it should be. The right of the lot owners to maintain bath houses would be quite useless if they could not also provide the appliances reasonably necessary for bathing. This is all that the defendants have done. While they themselves are not lot owners, they appear to have acted by the authority of the lot o wners, and the evidence shows that the ropes maintained by them interfered as little as possible with the use of the beach by the public for a promenade.

The specific relief claimed by the complainant was an injunction restraining the erection and maintenance of bathing poles or lines on the beach front, and a decree that the defendants remove the poles and lines maintained by them. While there was a prayer that they might be restrained from maintaining any nuisance and for other relief, there was no proof in the case that anything else was claimed to be a nuisance, or that the complainants desired any other relief.

The decree, therefore, must be reversed, and the record remitted and the bill dismissed. The defendants are entitled to costs.

For affirmance — None.

For reversal — The Ci-iiee-Justice, Garrison, Swayze, Trenci-iard, Parker, Bergen, Minturn, Bogert, Dill, Cong-don — 10.