author: Stevenson, Y. C.

text:
    Jeanne Marie J. Givernaud v. Charles L. Givernaud et al.
    [Submitted November 11th, 1912.
    Decided December 6th, 1912.]
    1. A court of equity will not entertain a suit to open a final decree of divorce after the spouse that obtained it is dead; but, where the decree was 'obtained fraudulently, the defrauded spouse may maintain a suit for the enforcement of any civil right notwithstanding' that the decree, if honest, would be a complete bar.
    2. A bill of review to set aside a fraudulent divorce after the death of the other spouse, which states that the object of setting it aside was to prevent the bar of limitations from interfering with the collection of a judgment rendered forty years before, will be held good as a bill to collect the judgment.
    3. Where a wife obtained a limited divorce in Prance charging- adultery, the only divorce allowed at the time, and got a judgment against the husband, and he came to America, got an absolute divorce, married again, grew wealthy, and had many relatives living in the vicinity of his first wife, during which time she refused to have anything- to do with him and did not attempt to collect the judgment, she will not be allowed to recover the judgment forty years after, and after his death, claiming that she did not know that he had obtained an absolute divorce.
    On bill, answers, replication and proofs taken in open court, and depositions taken in France.

      Mr. J. Rufus Besson and Mr. Maurice Leon (of the New York bar), for the complainant.

      Mr. Abel I. Smith, Mr. John S. Mahon, Mr. George Malraison (of the Yew York bar), and Mr. Gilbert Collins, for the defendants.
   Stevenson, Y. C.

(orally).

My conclusion in this case is that the bill of complaint must be dismissed.

1. The bill is filed as a bill of review, or a bill in the nature of a bill of review. A petition was presented to the court for leave to file the bill. An order was made permitting the bill to be filed, and the consent of the court was further endorsed by the hand of the vice-chancel]or on the back of the bill. I have a very grave doubt that, in a divorce case where a decree has gone by default, the case having been tried ex parte in the lifetime of the parties, at any time before the enrollment of the decree, after the enrollment of the decree, within the time allowed for an appeal in a contested case, or after such period has elapsed, the correct method of obtaining on behalf of the defendant a right to contest the case is by a bill of review rather than by a petition in the cause setting forth the default — setting forth the fact that the defendant had not been heard in the case at all — setting forth, further, that application was made at the earliest moment possible, and then setting forth the merits which underlie — must underlie — the application. I think at present the court of chancery has full power at all times during the lifetime of the parties to hear a defendant in the cause where the divorce has gone against him or her by default, who alleges that the decree was obtained by fraud, and that he or she, as the case may be, has only recently received actual notice of either suit or decree.

We have, however, this bill filed as a bill of review setting forth, or attempting to set forth, a cause of action in equity. It is not such an application as I mentioned a moment ago, which is made during the lifetime of the parties. This application is made to the court after the death of the husband, who obtained a decree of divorce ex parte, and it is very plain both from the fact that this bill was filed as a bill of review and also from the frame of the bill, and particularly of the prayer, that the pleader had in view as a complete cause of action in equity the setting aside of this decree of divorce on the ground of fraud.

The bill assigns the reason why the complainant — the defendant in the divorce suit — comes into this court with such a bill. She says that she recovered a judgment for forty-four thousand francs against her husband, now deceased, in' 1866, in France, where both parties were then domiciled, and the reason why she wants to have the decree of divorce opened is not a sentimental one. — -not for any vindication of her character against the charge of desertion which her husband made and proved ex parte. She has a very practical reason; she says,

“I want my money — my judgment for forty-four thousand francs,” equivalent to over eight thousand dollars, “and I cannot obtain any remedy for the collection of that judgment because I am barred by the statute of limitations which began to run in 1872 when this fraudulent divorce was obtained. I, therefore, desire to have a decree of this court vacating that decree of divorce and leaving me at liberty to proceed for the collection of my judgment in any court of competent jurisdiction, law or equity.”

And I may say, in passing, that a question is suggested right on the face of this case, whether in case the divorce were set aside the action of the widow, as she then would be, against her husband’s executor would be at law or in equity. If her judgment is only enforceable in equity — if her case is equitable — tibie mere death of her husband, by which she is able to sue Ms executors in a law court, would not give the law court any jurisdiction, because the incapacity of the law court to take jurisdiction of such a case does not arise out of the fact that the litigation is between a man and wife; it arises from the fact that the cause of action is purely equitable, of which the court of law can take no cognizance.

But I do not want to pursue this thought further, I only intended to say that the question arises, or might arise, what the remedy of Mrs. Givernaud for the collection of this money would be in case the decree of divorce were vacated and she stood now-before the courts of this state as the widow of her husband, seeking to recover from her husband’s executors the amount of this judgment, of a French court, rendered forty-six years ago'when both parties were citizens of France and were domiciled in France.

I do not think that any such equitable action will lie as the pleader had in mind when he drew this bill and framed the prayer for relief and obtained leave to file the bill as a bill of review. In other words, it seems to me that the court of cham eery of blew Jersey will not entertain an application in any form, either by bill of review or by petition in the cause, to open a decree of divorce — final decree of divorce — when the party, the spouse who obtained it, is dead. The subject-matter of. the litigation in a divorce suit is the marriage relation, the status of marriage, and that has perished — that' has been destroyed by the death of one of the spouses.

It is difficult to see what would be the result of the opening of this decree of divorce. The husband could not contest the case any further. The effect would seem to be that immediately upon opening the decree the court must recognize the fact that the suit has abated without hope of revival, and so the result of opening the decree would be not to recognize the litigation and give the complainant an opportunity to try his case and the defendant to defend, but to have the whole litigation immediately puffed out of existence.

I have considered the authorities which have been submitted, and which are conflicting, in regard to the status of a fraudulent decree of divorce after the death of the party who obtained it, and my conclusion is that no direct application is proper to open the decree, but the defrauded spouse may bring a suit for the enforcement of any civil right in any appropriate court in the State of New Jersey and obtain such enforcement, notwithstanding the fact that the decree of divorce, if honest and valid, would be a complete bar.

Generally, an adjudication that the decree of divorce was void would be made by the court in which the spouse — we will say the wife — was undertaking to prosecute her claim. If, however, for any reason the court of law should consider that it could not entertain the attack-of the wife upon the validity of the divorce— if by applying the rule against collateral attack or for any reason the court of law should reach that conclusion — it may be that the wife would have to file her bill in this court to enjoin the other part}' in the lawsuit from setting up the divorce. In one way or another it seems to me that where a spouse has been defrauded— the wife, we will say — by a decree of divorce obtained by imposition upon this court and the husband has died before she was able to learn about it' and attack the decree, she can then maintain an action against the heir for dower and, either in that proceeding or in a proceeding in this court in aid of her suit for dower, have the impediment from the fraudulent divorce removed.

Mrs. Givernaud might assert a variety of rights as widow of Mr. Givernaud. She might wish to contest the probate of the will. She does not say in her bill that she has the slightest claim against the probate of that instrument. She might also, as I said a moment ago, wish to recover her dower in a large amount of valuable real estate. She does not assert in her bill that her husband left any real estate, or that she has any claim to dower. If she had, she can, as I have said, take the appropriate action to have her right of dower enforced, and she could have an adjudication either in the court where she was proceeding to get her dower or in this court, which would sweep aside the fraudulent divorce as a defence if she proved that it was fraudulent, and that she could have had it vacated if her former husband were alive.

What Mrs. Givernaud has in view as the object of this suit, or rather the ultimate object of the litigation or litigations which this suit initiates, is the recovery of the fortj''-four thousand francs out of her husband’s estate, and that is the sole ground upon which she comes into court now and asks to have this decree of divorce set aside.

The slightest reflection will show how great a variety of possible claims a woman may have in the situation of Mrs. Givernaud, and the theory of the pleader is that he can file a bill in the nature of a bill of review and have the fraudulent divorce vacated, and then the woman can look around and determine what she will do — whether to bring an action for dower against some heir or devisee, or bring some proceeding to have the validity of the probate of the will contested, or collect money that is due her and be rid by her decree setting aside the divorce of the bar of the statute of limitations, or bring no further action of any kind in the absence of any enforceable claim as widow.

My conclusion is that a spouse cannot do that — cannot maintain that kind of siiit. I indicated this view to counsel at the opening of the case, and my examination of the authorities and further reflection upon the subject only strengthen my view that we must regard this bill as an original bill, filed by Mrs. Givernaud to collect forty-four thousand francs ont of the estate of her deceased husband.

Undoubtedly, the original theory of the framer of this bill, as counsel for the complainant fully explained at the opening of the case, was that it was a bill of review, and that the allegations setting forth the recovery of the judgment for forty-four thousand francs were inserted merely to show the court that there were substantial rights involved — that the complainant was not merely exploiting a sentimental ease for the sake of escaping from the reproach of being a divorced womán, but, on the contrary, had a very substantial interest in the estate of Mr. Givernaud .which, however, she could only recover by having the divorce set aside so that the statute of limitations would not be a bar to her proposed future action in some court for the recovery of her forty-four thousand francs. The bill, however, although styled a bill of review, and filed as such, in my judgment, as I pointed out to counsel, presented an independent cause in equity for the recovery of the forty-four thousand francs against the executors of Mr. Givernaud, who were made defendants, and no objection had been made on the ground of multifariousness or misjoinder.

Counsel for the complainant then positive!}' declared that he intended to ask for a decree for the amount of the complainant’s judgment, and did not intend to stop merely with a decree setting aside, on the ground of fraud, the divorce which Mr. Givernaud had obtained. Such relief was plainly within the scope of the premises of the bill and could be granted by a court of equity under the general prayer, notwithstanding that the complainant may not have originally intended to ask for any other relief than the vacation of the decree of divorce.

The cause then proceeded, all parties being distinctly notified of the nature and extent of the complainant’s case which would be presented to the, court for determination upon the evidence.

The question whether this bill might be maintained, not as a bill of review but as presenting an independent cause of action in equity, the object.of which is to set aside a decree of a court which had been obtained by fraud, it being a matter of no consequence whether the alleged fraudulent decree had been obtained in the court of chancery of New Jersey or in some other court of this state or of a foreign state, was not raised. If such a claim, however, had been within the theory of the bill, it was exceedingly improper and misleading to go through all these forms required to give it the name and character of a bill of review.

There being no argument on the subject, I have dealt with the bill only in two aspects, namely, as a bill of review, the object of which would be accomplished according to the complainant’s original theory by a vacation of this decree of divorce on the ground of fraud, and also as a bill for the recovery of the amount of this judgment for forty-four thousand francs. The discussion of the bill as presenting an original cause in equity for the setting aside of a fraudulent judgment or decree recovered in a domestic, not a foreign, court, not being suggested in any way during the trial of the cause, and being utterly inconsistent with the character of the bill as a bill of review, would involve some very difficult and, as yet, unsettled questions which I am entirely willing to disregard.

An examination of a few reported decisions with the citations therein contained will disclose these questions in their application to both domestic and foreign judgments: Dringer v. Receiver, 42 N. J. Eq. (15 Stew.) 573; S. C. on appeal, 43 N. J. Eq. (16 Stew.) 701; Kearns v. Kearns, 70 N. J. Eq. (4 Robb.) 483; Flower v. Lloyd. 10 Ch. Div. 327; Abouloff v. Opperheimer Company, 10 Q. B. D. 295; Cole v. Langford (1898), 2 Q. B. 36.

Whether the courts of New Jersey would adopt the broad and somewhat indefinite definition or description contained in the later English eases of the fraud which will afford a sufficient basis for setting aside a judgment of a domestic court by an ordinary suit in a court of equity, may very well be considered a matter' of doubt, especially in view of the narrow action of the court of errors and appeals in the case of Dringer v. Receiver, which action is erroneously set forth in the reporter’s syllabus. It would seem to be quite safe to, conclude that if the decree of divorce in this case would not be opened and vacated upon a bill of review, it Avould not be interfered with upon an independent bill in equity making an original attack upon the decree as fraudulent and invoking the jurisdiction of courts of equity to set aside judgments and decrees, both domestic and foreign, upon the ground of fraud.

Ho objection has been made in any form to the jurisdiction of this court over this present controversy. It is practically conceded by the parties and their counsel that so far as the forum is concerned, Mrs. Givernaud has made no mistake in whatever aspect her bill is considered. This is a perfectly plain case where the court should not raise any jurisdictional question, and I shall, therefore, dispose of the case on its merits.

. 2. For fear I may forget it, my attention was called in looking through the papers the other day to a separate and distinct defence set up in the answer of the executor, to the effect that all creditors of Mr. Givernaud’s estate were barred by a decree of the surrogate or the orphans court of Hudson county. "That defence was not referred to, I think, in the argument. I am not going to deal with it. It seems to be a bar to this action, so far as the executors are concerned, because the bill does not contain any allegations which take the case out of the operation of that decree of the surrogate or the orphans court. Probably, however, the maintenance of such a defence by the executors in the end would not be very beneficial to them. The indications are that there is a large estate here undistributed, and probably the defence was not pressed in order that there might be a final adjudication upon the merits, and therefore I shall not refer to this defence again.

3. How, then, we come to the case: Mrs. Givernaud and her husband, Louis Givernaud- — Charles Louis, is it not, Judge Smith P

Judge Smith — Charles Louis.

'The Court — Charles L. Givernaud was married in 1860, in France-

Judge Smith — Louis Barthelemy, I think he called himself.

The Court — Very good. They were married in the year 1860 m France, in Lyons, where they .both were domiciled and where I understand they were born and lived. That is forty-eight years before this suit was brought. They lived together-as man and wife only for about three or four years — I think until some time in 1864 — -when they separated and Mrs. Givernaud returned to her parents’ home where, I think, it appears she has lived ever since, or until their death.

Mr. Givernaud maintained a sort of separate establishment in Lyons for about two years, part of the time living with his parents — his father. In this brief period of married life it seems there were three children born who have always been with the mother.

In 1866, Mr. Givernaud was engaged with his brothers in the silk business in Lyons. He got into financial embarrassment,, or rather the firm did, and the result was bankruptcy. At this tine Mrs. Givernaud,. who was separated from her husband, and who evidently entertained feelings of great animosity toward him, as did her father, commenced a suit under the French law for a separation of her property from that of her husband, because it was imperiled by his bankruptcy.

Her dowrjr had been about forty-four thousand francs, and that she wished to recover. She prosecuted that suit and the husband defended it, and on the 7th day of February, 1866, she obtained the judgment which is set forth in this bill and which is the cause of this suit, the judgment being substantially for forty-four thousand francs.

The judgment provides that there should be an abatement of a portion of that decree — four thousand francs of it — equal to the value of such articles of a personal nature, apparel and jewelry, I suppose, as Mrs. Givernaud might recover in kind. The decree of the court was that she was entitled to forty thousand francs; the amount of money that she and her father contributed, and four thousand francs the value of her trousseau, less, however, the value of such articles from that trousseau as she might recover in kind. I do not find from the papers that there was ever any ascertainment of the value of the things she recovered, if she recovered anything. It makes the status of the judgment somewhat peculiar, hut I shall treat the judgment as counsel treated it in their argument as equivalent to an absolute judgment for forty-four thousand francs — a judgment recovered bj'- this woman against her husband.

Let us now see what the circumstances were which characterize the relations of these people to each other in 1866. They not only litigated this matter in the courts relating to the wife’s separate property, in'which litigation she recovered a judgment, for her whole dowry, but immediately the wife further separated herself from her husband. She brought an action for a separation of persons — a limited divorce, the only kind of divorce known at that time to the French law. There was no law providing for an absolute divorce or dissolution of the marriage bond, according to the testimony of the expert — the French lawyer— until 1884, eighteen years after Mrs. Givernaud got her limited divorce. I did not mention the date when she procured this divorce. It was in August, 1866.

In the latter part of February, or the first part of March, 1866, Givernaud, discarded by his wife and repudiated by his wife’s father, left France and came to this country and started in business with his brothers, became a citizen of the United States, and prosecuted successfully a large business — a good business which became large — for a great many years, and died finally in Los Angeles, California, where he seems to have been temporarily abiding in 1908, forty-two years after this judgment had been recovered against him. And during the greater part of that period, as is indicated by the testimony in this case, he was ab- . solutely responsible for anything which his wife might recover here upon that judgment against him.

In the suit for limited divorce, the record of which has been put in evidence, it appears that Mrs. Givernaud made most severe and offensive charges against her husband. She charged him with maintaining concubines, I think, in the home of the couple. She charged him with illicit relations with women, and the evidence indicates the bitterness of her hate for this man, and her desire to be absolutely rid of him, and now in her old age when she is interrogated, upon the commission which was issued in this cause, in regard to what she knew about her husband, she takes pains to show her contemptuous disregard. She wanted to have nothing to do with him whatever. She had recovered her property as far as she could. She obtained her judgment, perhaps collected a part of it in the bankruptcy proceedings, divorced herself from her husband so far as was permitted by the laws of her country, and refrained from maldng any inquiry about him, although she would not have had the slightest difficulty in obtaining full information. Mr. Givernaud had relatives and friends in Lyons. He was not concealed; his prosperity was known by rumor to Mrs. Givernaud, but she would have nothing to do with him and took no steps to. find him or to collect this judgment, or the remainder of it out of his property in this country.

In view of those facts, which, are beyond dispute in this case — ■ in view of the relations between this couple — a rule qf law which prevents the statute of limitations from being a b;ar to any recovery, is simply a hard and fast technicality of the worst kind which courts of equity usually endeavor to avoid if they can.

4. It has often been pointed out that the statute of limitations is not addressed to courts of equity but to courts of law only. Courts of equity, however, are said to enforce the statute by analogy. Several reasons have been assigned for the rule that the defence of the statute of limitations will not be recognized by courts of equity in litigations between husband and wife. Sometimes it has been said that a married couple cannot sue each other in courts of law, and that, therefore, the legal defence of the statute of limitations should not be sustained when they sue each other in a court of equity.

I do not think there is much force in this reasoning, and undoubtedly the main reason for the well-settled rule is founded upon a consideration by courts of equity of the relations of love and confidence which presumably exist between man and wife— the fiduciary relation which must powerfully influence the conduct of persons who are bound by it with respect to each other’s property as well as person. Courts of equity will not foster a litigation between a man and wife which naturally would tend to break up the peace of the home. The plainest reasons pertaining to public policy and the good order of society underlie this rule.

I have very hastily gathered some recent authorities on this subject, which are as follows: Yeomans v. Petty, 40 N. J. Eq. (13 Stew.) 495; Gray v. Gray, 39 N. J. Eq. (12 Stew.) 512; Bennett v. Finnegan, 72 N. J. Eq. (2 Buch.) 155; Ten Broeck v. Jackson, 71 N. J. Eq. (1 Buch.) 582.

These authorities fully recognize the reasons which I have stated, why courts of equity ordinarily exclude the defence of the statute of limitations from litigations between husband and wife. They also recognize the fact that in ordinary cases the defence of laches in like manner must be excluded. But the authorities hold that the delay of one spouse in bringing his or her action against the other while the status of marriage exists may be fatal under the equitable doctrine of laches. The correct view is that a court of equity must look at all the circumstances of the case without being bound by the hard and fast rule of the statute of limitations imposed upon courts of law, and that the defence based, upon undue delay will be sustained or rej'ected according to purely equitable considerations in view of the equitable doctrine of laches. This is plainly what Chief-Justice Beasley says in his opinion for the court of errors and appeals in the case of Gray v. Gray, which I have cited.

In the case of Ten Broeck v. Jackson, which I cited a moment ago, Vice-Chancellor Stevens held that under the circumstances of that case the complainant, who was a widow, was chargeable with laches during the time when she was living with her husband prior to his decease, and such laches barred her of recovery of an alleged debt from her husband’s executor. The court of errors and appeals affirmed the decree of this court upon one of the grounds upon which the same was based, without finding it necessary to consider the question of laches. 73 N. J. Eq. (3 Buch.) 734.

It must be borne in mind, in dealing with all the authorities which recognize the rule to which I have referred, excluding this defence of laches or the defence of the statute of limitations in equitable suits between man and wife, that the reason for the rule, apart from a bare and as it seems to me inapplicable technicality, consists in the assumption that a relation of love and confidence, the finest and most potent fiduciary relation perhaps known to the law, exists between a man and his wife.

When the couple have separated — when, for instance,, the wife has secured a divorce from bed and board in a suit in which she has charged her husband with extreme cruelty under our law or gross violations of his marriage vow, as was done in Mrs. G-ivernaud’s case, in Erance, in 1866, is it not absurd to apply Lo the case this rule excluding the statute of limitations from consideration and also excluding the defence of laches? It seems to me there is a very strong reason for sustaining a general rule that where the married couple have been separated for years by a decree of limited divorce under our statute and have never become reconciled, but, on the contrary, have persistently maintained sentiments of bitter animosity so that every particle of love or confidence which may formerly have existed between them has been wholly destroyed, courts of equity will enforce the statute of limitations in all litigations between the so-aalled married couple.

It is somewhat difficult for me to perceive any sound reason why a woman who has thrown off her husband by a decree of limited divorce and absolutely separated herself from him should be allowed to hold open indefinitely a claim, for instance, for money lent to her husband in former days of confidence, and then obtain a decree in equity for the amount of the loan forty years afterwards, against her husband or her husband’s executors.

But I do not have to lay down any such rule in this case, because -it is conceded that however courts of equity may regard or disregard the statute of limitations in suits between man and wife, the great equitable doctrine of laches stands on an inde'pendent basis and may or may not afford a defence according to equitable considerations.

Now, then, let us see what sort of a case this is for the application of the doctrine of laches. This woman, as I said, recovered a judgment in 1866. The judgment debtor, her husband, died forty-two years later, here in America, where he occupied a position of prominence in the trade of the country. He had relations with France. This woman had no difficulty in finding out about him, and she does not pretend that she did not know that he was abundantly able to respond if she brought her suit over here in New Jersey — sent her judgment over here. But she waited, and she waited forty-two years, and just see what happened during that interval: Her husband died. Ordinarily, there is a presumption of. the payment of a judgment, after twenty years. Ho defence of payment has been set up in this case, and, therefore, I do not deem it necessary to consider how far such a defence, if it'had been set up, would have been sustained. The husband undoubtedly knew a great deal about this matter. For all that appears in this case, there might have been payment or a release. At any rate, the husband certainly might, if he had been sued some time during these forty-two years, have thrown some light upon this affair which would have been exceedingly beneficial to him and exceedingly harmful to his wife. We can speculate about the various defences that he might have raised. He might have disclosed facts founding defences which his executors know nothing about. If he were alive he might establish the defence that the judgment had been paid in accordance with the ordinary presumption.

But let us go further and see how the laches of Mrs. Givernaud has injuriously affected the defence, actually set up in this case. The bill admits that the complainant cannot recover a dollar of this money and interest, and I suppose with interest it amounts to something like $25,000, does it not?

Judge Smith — Yes.

The Court — Ho, no, you stated, although there was no proof on the subject, that twenty-seven and one-half per cent, was paid in the bankruptcy proceedings — ten or fifteen thousand dollars. At any rate, it is a large sum of money, and she admits, and her bill admits, and her counsel admits, that she cannot make any recovery unless the bar of this divorce is removed. She has got to have that bar swept aside in order to recover any portion of this debt, and for forty-two years she has held her claim in abeyance, and for thirty-six years during the lifetime of her former husband she has held it while this decree of divorce was standing against her on the records of this court.

But she says, “I didn’t know of any divorce,” and I suppose I am safe in saying that this bill never would have been filed unless Mrs. Givernaud was prepared to swear point-blank that until recently she had no notice that the divorce had been obtained against her. I doubt if any lawyer would have filed a bill if he could not be assured that she would testify to that, that she never heard of this divorce. That lies at the foundation of all her rights which she seeks to assert in this case, and when we take her bill in order to ascertain the grounds on which she seeks to set this decree of divorce aside at this' late date we find, I think, two grounds, and one consists in the charge that her husband fraudulently procured a misdirection of the letter which was sent to notify her of the commencement of the divorce suit.

Well, we have to find that she did not know of this suit if she says she did not know of it, and we must consider this charge that in respect to the mailing the notice there was fraud. And she says another ground is:

“My husband fraudulently concealed from the court the fact that I was living under a decree of separation which I recovered or obtained in France in August, 1866. It is true I began my suit after Mr. Givernaud had come to this country and he was not served with any process, nor was any notice of my suit published in a newspaper or sent to him by mail, but he knew about my suit; he got actual notice of it.”

Now, it will be observed that the complainant wishes to maintain that she did not know about the institution of the New Jersey divorce suit, or that a divorce had been obtained after-wards at any time, and also that her husband did know or get notice of the Trench divorce which she had obtained.

Well, is this court to-day in the situation that it would have been in if this snit had been brought earlier, with reference to the ascertainment of the facts of the case and the hearing of both sides? Lutjen v. Lutjen, 64 N. J. Eq. (19 Dick.) 773; Ten Broeck v. Jackson, supra.

Not only Mr. Givernaud has died, but about fifteen years1 ago Mr. John C. Besson, the lawyer who recovered this decree of divorce in New Jersey in 1873 and who, according to the theory of the bill, was the unconscious instrument by which this man perpetrated a gross fraud, also died. It appears from, the papers in evidence that Mr. Besson, a practitioner of ability and integrity, attended personally to the business of mailing the notice.

See what a disadvantage these executors are under when they are resisting this old, stale claim which this woman makes and which she has kept unenforced, unrecognized, unasserted for forty-two years, up to the time of Mr. Givernaud’s-death, and for forty-four years prior to the institution of this present suit. It seems to me that if'ever there was an ideal case for the application of the great equitable doctrine of laches this is such a case.

5. Let ns suppose, now, that T am in error in the view that I have expressed or indicated, in regard to the power of the court of chancery, on the ground of fraud, to vacaté a decree of divorce after the death of the spouse-who obtained it, where the bill is filed simply as a bill of review, or an application is made in the cause to open the decree. Let us suppose that the view which has been taken in some courts is correct, that after the death of the spouse who has obtained a fraudulent decree of divorce the injured spouse may, by some form of proceeding, either by a bill of review or by a petition in the cause, upon notice, of course, to the executors and heirs of the deceased spouse and all parties interested, get an order or decree opening the decree of divorce aud thus establishing, in case such injured spouse is a woman, not her matrimonial status which has been' destroyed by death but all her rights as widow in respect of her deceased husband’s estate without, however, including as part of her relief the enforcement of any one of those rights. If that is the correct view of the power of this court in this case, the result which I have stated would not bo changed. We still have in this case a bill of review, in order to secure the vacation of the fraudulent decree of divorce for the sole purpose of permitting the wife to collect her judgment without being thwarted by the statute of limitations.

This is the sole reason for bringing the suit which is set forth in the bill. Evidently, it was the theory of the framer of the bill, indicated also by the declaration of complainant’s counsel, that the court would not open this decree of divorce, with all the baleful effects of such action, upon the rights and feelings of the second wife of Mr. Givernaud and his son, if no possible benefit could thereby accrue to the complainant — benefit, I mean, in respect of a property right.

But if this, statement requires qualification, it must be borne in mind that the complainant in this case does not make the absurd claim that she desires vindication from the charge that she deserted this husband whom she had cast off over forty years before she brought this suit. The bill of complaint does not set forth that the complainant has any other right in respect of property apart from her judgment, the enforcement of which is in any way affected by the decree of divorce. The sole effect of vacating the divorce would be to enable the complainant to maintain an action in some court for the recovery of this ancient judgment without meeting the bar of the statute of limitations.

But I have already found that the defence of laches would be fatal to the complainant’s claim, even if the restoration of the technical status of marriage from the year 1872 until the death of Mr. Givernaud, in 1908, had the effect to relieve the complainant’s case from the bar of the statute of limitations.

If the complainant set forth that Mr. Givernaud died seized of real estate and that she desired to commence actions at law or in equity, or had commenced such actions for the recovery of her dower, we should have an entirely different case, because the vacation of the decree of divorce plainly would not be futile. No defence of the statute of limitations or of laches would bar such suits for dower, and this distinction brings us to the last point which I intend to discuss.

6'. I shall now assume that I am in error in supposing that a court of equity will not open this decree of divorce on behalf of Mrs. Givernaud when the sole purpose which Mrs. Givernaud discloses for procuring such judicial action is to enable her to prosecute a suit free from the bar of the statute of limitations which, on the face of her bill, is subject to a fatal defence of another kind which makes her whole claim absolutely of no value.

We come back to the proposition, which possibly the frame of the bill of complaint in this case accepted as sound, upon the strength of some authorities in other states, that where a divorce has been obtained ex pwrle by fraud the defendant, the injured spouse, may take proceedings in some appropriate manner after the death of the fraud-doer, for the sole object of having the fraudulent decree of divorce vacated so that, for all purposes as against all parties and in all courts, the marriage relation must be held to have continued unbroken by the fraudulent divorce during the joint lives of the two spouses.

I have pointed out that the pleader in this case took pains to assign a very practical reason for seeking to have the decree of divorce in this case opened, but that feature of the case I now disregard.

Adopting the widest proposition in favor of the complainant which I have heretofore rejected as unsound, it seems to me that her laches, proved beyond all doubt in this case, prevents her from obtaining any relief against this decree of divorce, although the evidence now procurable and before this court may indicate that that decree was obtained by fraud of such a character that it would have been opened during the lifetime of Mr. Besson and Mr. Givernaud if Mrs. Givernaud’s application for such relief had been made earlier.

(1) Counsel for the complainant admits that the whole claim of the complainant for relief, on the theory which we are now provisionally accepting, turns on the question of notice to Mrs. Givernaud of the commencement of the divorce suit or subsequent notice of the fact that a divorce had been obtained. If Mrs. Givernaud had notice of either of these two things, it seems quite clear that she would have no standing whatever in this court at this late date to claim a vacation of the decree of divorce which she submitted to for so many years when her object now is merely to recover property.

(3) The record of the divorce suit, with the facts proved in regard to the mailing of notice to Mrs. Givernaud and the postal regulations and practices which prevailed in the city of Lyons, in 1866, when the notice was mailed, and the circumstances of Mrs. Givernaud’s residence at that time in Lyons with her father, an old citizen of the place, in my judgment, establishes a presumption that the notice of the suit was received by Mrs. Givernaud, and this presumption weighs heavily against her uncorroborated testimony after this long period of years to the effect that she did not, in fact, receive the notice which was mailed to her.

(3) If we may accept Mrs. Givernaud’s uncorroborated testimony that, in fact, she did not receive the notice of the divorce suit which was mailed to her, it is still necessary that she should establish the almost incredible proposition that she did not at some time during the thirty-six years which extended from the date of the divorce until Mr. Givernaud’s death — let us say prior to Mr. Besson’s death — learn of facts which amounted to notice that a divorce had been obtained. I shall not undertake to set forth the testimony bearing upon this subject. Apart from Mrs. Givernaud’s denial there are strong indications that she learned of facts in regard to Mr. Givernaud’s second marriage which plainly indicated that he had obtained a divorce, so that if she had undertaken to malee what would seem to be merely a few casual inquiries in Lyons she would have found out all about the New Jersey divorce which her husband had obtained.

(4) The evidence also strongly indicates that if Mrs. Givernaud in fact did not get notice of the divorce suit by mail or otherwise, and did not get notice of the fact that a decree of divorce had been obtained by her husband, it was due to her resolution to ignore her husband and to disregard any possible legal existence of the marriage bond which she had sundered as far as the law of her country would permit. Mrs. Givernaud’s 'own testimony shows what her. state of mind was, and the proofs disclose the natural reasons for that state of mind. It is difficult to believe that if Mrs. Givernaud received notice of the institution of the suit for divorce, she would have taken the trouble to send her decree for the separation of her person to America in order to defeat Mr. Givernaud’s suit, although she alleges in her bill and testifies that she would have taken this course.

However this may be, the evidence shows that if Mrs. Givernaud did not get actual notice of the divorce suit or the divorce decree, it was because she did not care to learn anything about these things or about any other things pertaining to the life in America of her husband whom she despised and had cast off as far as was possible under the law of her country. I know of no principle of equity or of ethics which aids'this lady who, for thirty-six years, repudiated her husband and renounced the marriage relation, in now promptly after his death obtaining a vacation of the decree of divorce for the sole purpose of getting some of the pecuniary benefits of the marriage which she had repudiated as long as the maintenance of any marriage with her husband was possible.

(5) There is another very strong reason for the exercise of the greatest possible caution on the part of this court before opening this ancient decree of divorce arising from the fact that such, action would bastardize Mr. Givernaud’s adult son by his second marriage, now a married man of thirty-seven years of age, one of the defendants in this suit, and as such bound by any decree to be made herein, and also stigmatize the relations of Mr. Givernaud with his second wife, who presumably relied innocently upon this divorce which was absolutely valid on its face during the long years that the couple lived together, as not marital but meretricious.

To allow the complainant on the strength of her uncorroborated oath to an improbable story after thirty-eight years to open a decree of divorce, regularly obtained, after these witnesses to the transaction which she impeaches are dead, and thereby bastardize the issue of the marriage which followed the divorce and presumably was entered into in good faith by the second wife, all for the sake of enabling the complainant to obtain money or other property as the widow of a man to whom during his long life she refused to be a wife, would, in my judgment, be a travesty of justice.


source: Caselaw Access Project

license: Public Domain

text:
    Michael Brady v. Carteret Realty Company.
    [Submitted December 23d, 1912.
    Decided January 14th, 1913.]
    1. Under the “Act to compel the determination of claims to real estate, and to quiet title to the same” U Oomp. Stat. 1910 p. S\399), a court of equity, if title is shown to be in a defendant, has jurisdiction to issue a writ of assistance to put him in possession; but he must plead, and the decree must show, his right to “immediate possession” as well as title.
    2. In a statutory suit to quiet title, decree was rendered that defendant had title absolute, and that complainant had no interest; hut the right to possession was not determined. Subsequently the defendant brought ejectment against its adversary, to which the statutory plea of not guilty was filed; whereupon there was a motion for judgment, on the ground that the plea was sham. This motion was denied, after which defendant moved for a writ of assistance in chancery.' — Ilelcl, that, considering the scope of the decree in chancery and the ruling on the motion- for judgment at law, the question of defendant’s right to possession was not so clear as to warrant disposing of it on motion.
    On petition for order for possession and writ of assistance.

      Mr. Gilbert Collins, for the petitioner.
    . Mr. Ephraim Cutter and Mr. Linton Batterthivait, for the respondents, Michael Brady and Thomas J. Brady.
   Stevenson, Y. C.

This is an application for an order for possession, and if necessary a writ of assistance, to put the defendant, the Carteret Realty Company, in possession of certain lands under a decree heretofore rendered in this cause, establishing an absolute title in fee-simple to the same in the defendant, the petitioner in this present proceeding.

The bill was filed under the statute which is commonly cited as the act to quiet titles. The true title of the statute, more adequately 'disclosing its object, is “An act to compel the determination of claims to real estate in certain cases, and to quiet the title to the same.” It is singular how often the important function of the statute disclosed in the first part of its title has been overlooked.

The case undoubtedly is novel. So far as our reports indicate, this is the first application by a defendant in this statutory suit, whose absolute title to the premises concerning which the bill of complaint was filed, has been established by the final decree entered in the cause, to oust the unsuccessful complainant and obtain possession for himself by a writ of assistance.

1. The first question to be determined is whether the court of chancery of Eew Jersey has jurisdiction to enforce a decree establishing the defendant’s title and right of possession in the action provided by the statute above cited. The argument is made on behalf of the respondents with ingenuity and considerable force, that it is not the intention of the statute to afford any remedy in respect of possession on behalf of any defendant, that the utmost that the final decree in this statutory action can do for a defendant is to “determine” his claim — establish his title.

Eo doubt one great object of the statute is to enable the complainant in peaceable possession to have all “claims” of the defendants to the “real estate,” of which the complainant has such peaceable possession, settled and defined and “determined” so that he may know what titles and interests, if any, are outstanding in tire defendants with which he has to reckon. Eo doubt this suit may be applied to having a claim to a mortgage determined and, if the alleged mortgage is established by the decree of the court, the amount thereof ascertained finally so that the complainant may pay the same.

I am unable, however, to adopt the view that has been presented on behalf of the defendant, that under no form of decree which can be made in this statutory suit can a defendant be put in possession by a writ of assistance. The‘crucial question is whether the attainment of the object of the statutory action and the enforcement of the statutory decree in an appropriate case, upon appropriate proceedings, may not sometimes necessarily involve the use of the writ of assistance. I think the question may be stated in different terms, .but substantially to the same effect, as follows: Is it competent for the court of chancery in a proper case to make a decree not only establishing the title of a defendant, but also establishing his right of immediate possession and directing the complainant to yield possession to him ?

I shall not discuss at length the various provisions of the statute which have been examined minutely by counsel, and which must be considered, in deciding the questions raised in this cause. In addition to the significance of the title of the act, which I have already pointed out, the most important provision of the statute relating to this ease is found in section 6, which directs “that the final determination and decree” * ' * * “shall fix and settle the rights of the parties in said lands, and the same shall be binding and conclusive on all parties to the suit.”

It may be noted also that section 4 provides that defendants may in their answer set forth any “interest” which they claim in the land in question.

It seems to me quite plain that where the complainant, in peaceable possession of land, challenges a defendant to assert any interest which he claims in such land, and asks the court to make a decree binding upon himself and the defendant which shall “fix and settle the rights” of both parties in the land, it is competent for such defendant to come forward with an answer setting up that his “claim” and his “interest” consist of a right of immediate possession of the land in derogation of the peaceable possession of the complainant and destructive thereof. In such case the complainant seems to invoke the jurisdiction of the court of chancery under this statute to “determine” whether he is to remain in peaceable possession or possession is to be awarded to the defendant. In short, the decree, if the defendant is successful, establishes his right of immediate possession, and there can be no enforcement of such a decree without putting the defendant in possession.

It will be observed that I have not referred to any question of title, although naturally in the case supposed a determination of title will go with the determination of the right of possession.

Suppose, in the case above referred to, the defendant claimed that he held a mortgage and an accompanying right to have the land sold in satisfaction thereof. It may he that he must file a cross-bill in order to secure a sale and later a writ of assistance. But we are not considering any question of pleading, but a question of the jurisdiction of the court to make a certain decree in a case properly presented to it.

Upon the first question raised on this application I should as. at present advised- reach a conclusion, if any conclusion were necessary, in favor of the petitioner.

The second question is whether in the absence of anything in the defendant’s answer making the claim, or in the final decree establishing the claim on the part of the defendant to possession, his right of possession can be established and then enforced upon a petition for an order for possession and writ of assistance. This question, if necessarily requiring an answer for the determination of this present controversy, I think I should feel constrained to decide in favor of the respondents.

The decree in this case merely adjudged that the Carteret Eealty Company, one of the defendants in the cause, and the petitioner in this proceeding, “has an estate in fee-simple absolute in said lands of which the said complainant is in possession,” and further adjudges “that the complainant [Michael Brady] has no estate or interest in the said lands.”

An examination of the pleadings and of the decree shows that' the sole question litigated was as to the respective titles of Michael Brady and the Carteret Eealty Company. The complainant in the cause, Michael Brady, was necessarily adjudged to be in peaceable. possession. The defendant, the Carteret Eealty Company, was asserting title without making any effort by an action of ejectment or otherwise to obtain possession. As a matter of fact the Carteret Eealty Company may not have had a right to possession as against Michael Brady, who was in peaceable possession because of some outstanding lease made by the Carteret Eealty Company, or because of some other relation to a third party. Precisely as the Carteret Eealty Company stpod with reference to the peaceable possession of Michael Brady, when this bill was filed, so they seem to me to have elected, by their answer and by the decree in their favor in respect of their title, to stand at the conclusion of the suit. In brief, the sole question in this statutory action was in regard to the respective legal titles of the parties, and this question of legal title was the question which was fixed and settled and determined by the decree.

We are dealing with a case where the statutory suit is employed to compel the defendant to put a legal title claimed by it to a test. But suppose the defendant had been compelled to submit an alleged mortgage to “determination,” and it had merely set up its mortgage, and the decree in its favor drawn by its solicitors had merely “fixed” and “settled” and “determined” the exact extent of its mortgage claim. Would the court then enforce such a decree by issuing process for the sale of the land in question, and subsequently issue a writ of assistance to put the purchaser in possession ? It is easier, I think, to answer this question in’ favor of the mortgagee whose rights as such have been established by the decree, than to answer the corresponding question raised in this case in favor of a defendant whose legal title alone, without any claim of a right to immediate possession, has been so established.

It may certainly be argued with plausibility that where the defendant seeks not only the establishment but the enforcement of his “claim,” he may as a general rule secure that result if his claim is equitable only by a cross-bill, and that when his claim is strictly legal the decree in his favor cannot do more than “settle” and “determine” it, leaving its enforcement to the courts of law. However this may be, it would seem that if an answering defendant claims a right of immediate possession based opon a strictly legal title, he must set up such “claim” in his answer, or cross-bill, and have it established in his decree if he wishes to have it enforced by a writ of assistance.

Assuming that the question requires a determination in this case, I reach the conclusion that where the decree recognizing the peaceable possession of the complainant adjudges that a defendant has a legal estate in fee-simple absolute in the lands of which the complainant is so possessed, and farther adjudges that the complainant has no estate or interest in the said lands, an order for possession will not be made and a writ of assistance will not go in favor of such defendant unless the decree expressly adjudges that he has a right to immediate possession. This statutory suit in a case like this may compel a defendant practically to bring an action of ejectment in the suit in equity, in which either party may have a trial by jury, upon the idea that it is inequitable for such defendant to assert title to the injury of the complainant in peaceable possession but take no legal step to put his title to a test. But where the defendant confines himself to a bare assertion of title and enters a decree sustaining that bare assertion, I do not think that he can subsequently try his action of ejectment upon a petition for a writ of assistance. Notwithstanding the wide terms describing the function of a writ of assistance employed by Mr. Justice Dixon in delivering •the opinion of the court of errors and appeals in the case of Strong v. Smith, 68 N. J. Eq. (2 Robb.) 686, 705, I feel constrained to hold in the class of cases to which this belongs, that orders for possession and writ of assistance are used for the enforcement of the decree against the parties to the suit, and all others bound by the decree, and not for the enforcement of rights which may have been established by evidence in the cause or made the basis of the decree.

3. Pending this suit Michael Brady made a conveyance of all his estate or alleged estate in the land in question to Thomas J. Brady, whose appearance has been entered in this proceeding and who has filed an answer to the petition for the order for possession. The Carteret Eealty Company, whose absolute title in fee-simple had been established against Michael Brady, instead of applying to this court for a writ of assistance and thus raising the questions which so far have been discussed, brought an action of ejectment in the supreme court in which Michael Brady and Thomas J. Brady and the New York and New Jersey Telephone Company were made defendants. To the plaintiff’s declaration in this ejectment suit the defendant Thomas J. Brady appeared and filed the statutory plea of not guilty. Thereupon application was made to the supreme court for judgment over this plea as a sham plea, upon which application the Carteret Eealty Company relied upon the decree of this court as establishing their absolute title in fee-simple, and also establishing that Michael Brady had no estate or interest in the lands in question — -the defendant Thomas J. Brady, being regarded as a party entering pending a suit under a defendant and hence bound by tire final decree.

The motion for judgment over the plea as a sham plea was heard before two justices of the supreme court who united in a decision expressed in words to the effect that the motion was denied.

Apart from the views hereinbefore somewhat tentatively expressed, I feel constrained to hold that this court must regard it as res adjudicaba between these parties that in this case there is a question relating to the legal right of possession, which is not so “clear,” but that the respondent Thomas J. Brady is entitled to have it tried at law by a court and jury. This conclusion is fatal to an application for a writ of assistance. Schenck v. Conover, 13 N. J. Eq. (2 Beas.) 220, 227. The speculations which were indulged in'by counsel for the petitioner in regard to the grounds of the decision, of the supreme court, it seems to me, cannot be allowed much weight. It would seem to be improper for this court to undertake first to conclude that the supreme court ought to have granted the petitioner’s motion so far as the merits are concerned, and that, therefore, the supreme court must have rendered its decision because of some technical defect in the procedure on the part of the petitioner, the plaintiff in the action of ejectment, which, however, the court does not see fit to disclose.

A transcript of the proceedings in the supreme court on the motion for judgment for the plaintiff in ejectment on the ground that the defendant’s plea was a sham plea, was put in evidence, and while, as stated above, the grounds for the denial of the application are not set forth in the announcement of the decision, the affidavits of the respective parties exhibit the matters which were submitted to the court for its judgment. On behalf of the plaintiff the only evidence submitted to the court was a brief affidavit of,one of his solicitors setting forth the instijnition of this present suit, and that the “Carteret Eealty Company filed its answer setting up a claim to own the said lands- in fee-simple,” and further alleging that an issue at law was tried before a jury resulting in a verdict in favor of the Carteret Realty Company, and that “a decree establishing its title was made and filed on May 16th, 1905.” Thus it appears that the solicitor and counsel, who personally conducted this whole litigation on behalf of the Carteret Eealty Company, exhibited to the supreme court the bare fact that this court had established the title of the Carteret Eealty Company to the land in question. ISTo pretence was made before the supreme court that the decree of this court dealt with the question of immediate possession. The decree of this court seems to have been presented as a decree denying the right of the complainant in peaceable possession to have his title and possession quieted as to the alleged title of the Carteret Eealty Company, because it was found that the Carteret Eealty Company had an absolute title in fee while the complainant had no title.

On behalf of the defendant voluminous affidavits were presented, which among other things undertook to attack the title of the Carteret Eealty Company by showing that their title was bad against, some older outstanding titles.

The Carteret Eealty Com'pan3r, the applicant for the order for possession in this case, having obtained the decree of this court establishing its title, elected to bring an action of ejectment in the supreme court of this state to enforce the right of possession which it claimed to hold under such established title. The supreme court had before it the exact form of the decree of this court, and also had the matters above referred to presented by the affidavits of the parties. ' •

I do not feel called upon to decide upon what ground the motion of the petitioner in its action of ejectment against the respondent Brady’to have his plea adjudged a sham plea, was denied by the law court in which such action was pending. ISTor do I have to decide that the action of the supreme court in denying such motion makes it res adjudicaba upon this application to this court for a writ of assistance that there is such doubt as under the authorities precludes the proper use of a writ of assistance. All that I have to conclude in order to dispose of this application is that, giving due consideration to the action of the supreme court as a most important factor in this case, the right of the petitioner under the decree entered by it in its own favor in this canse upon the answer which it saw fit to file, is far too doubtful a “determination” of its immediate right of possession as against the respondent Brady who is in peaceable possession, to make it proper that a writ of assistance should he issued for the enforcement of such doubtful right. I may add that in my judgment it would be unwise to encourage the practice followed in this case by the successful defendant, the Carteret Realty Company, of first bringing an action of ejectment in a court of law and then, after failing to get a summary judgment over a plea, discontinuing the action at law and invoking the summary jurisdiction of this court to award a writ of assistance. An order denying the application of the Carteret Realty Company and dismissing its petition will he advised.


author: Steveksoiv, V. C.

text:
    Benjamin Thomas, Jr., et al., v. The Board of Education of the City of Paterson et al.
    [Decided April 8th, 1911.]
    In a suit under the Municipal Improvements Lien act (8 Oomp. 8tat. p. 8815) complainant claimed a lien under his stop notice, and defendant claimed a prior lien under an equitable assignment from the contractor of moneys to be earned by the contractor under a contract which obligated him in consideration of $33,886 to do all the mason work upon a school building, according to certain “plans, specifications and proposals,” and further provided that the other party, the board of education, might make “any alterations, deviations, additions or omissions”- and that in such a case, the contract should remain in force, a reasonable addition or deduction from the contract price being made. Payments were to be made monthly to the extent of eighty-five per cent, of the value of the work actually done without regard to whether such work was mentioned in the specifications or covered by the provisions in the contract for additions, omissions, &c., the remaining- fifteen per cent, being retained until completion of the whole work. The assignment recited the more important terms of the contract, including the provision that fifteen percent. of the “contract price” was to be -retained, and describing such fifteen per cent, as the sum of $5,082.90. The instrument then assigned “the said payment of the said sum of $5,082.90 according to the conditions of the specifications and the said contract” and constituted the assignee the attorney of the assignor “to enforce the payment of the said $5,082.90 according to * “ * the conditions of the said specifications and the said contract.” The assignment, as it recites, was merely a collateral security to a promissory note for $2,200 and the interest thereon. The contractor after partly performing his contract and receiving partial payments, abandoned his contract, and the board of education after completing, the unfinished work had $589, which the contending parties agreed was to be treated as money due the contractor under the contract. — Held (1), that the “contract price” was not neces-» sarily the sum ($33.SS6) named as the agreed payment for the work described in the specifications, but the sum which should be earned under the contract as the figure named might be increased or diminished by additions to or omissions from the work specified; that the intent was to assign as a security not a portion of the retained fifteen per cent, but the retained sum in its entirety, the reference to the fifteen per cent, as a definite sum, $5,082.90, being merely by way of description; (2) that the assignment covered the entire residue ($589), which was the balance due to the contractor under his contract, although it appeared that the contractor had done excavation work under the contract but not described in the specifications, and that the reasonable 'value of such work had been found to be $400.
    On final'bearing on bill, answer and proofs taken in open court.

      Mr. Albert Comstock, for the complainants.

      Mr. Edward F. Merrey, for the board of education.

      Mr. Jacob Van Der Clock, for Thomas Brogan.

      Mr. Michael Dunn, for Matthew Nealon and Thomas Ear-non, Jr.
   Steveksoiv, V. C.

The bill is filed to enforce a lien alleged to have been acquired by the complainants under the statute commonly called the Municipal Improvements Lien act, approved March 30th, 1892. 2 Gen. Stat. p. 2078. The defendant the board of education, the stakeholder, files an answer admitting that it holds the sum of $3,936.84 to which the defendants or some of them are entitled, and prays that the court may direct it in regard to the payment of said sum. This answer to a large extent makes the suit in effect an interpleader suit. All the parties agree that the amount of the stake which the defendant the board of education holds is correctly stated in the answer of that defendant. The wfhole contest lies between the following-named parties, to wit:

1. The' complainants who claim a lien as aforesaid under the above-mentioned statute.

2. The defendants, the bondsmen of the defaulting and-absconding original contractor, Maloney, who finished the building after Maloney had abandoned his contract under a contract made between themselves and the board of education, and

3. The defendant Thomas Brogan, who claims that before the lien of the complainants was created by notice duly served under the statute, the entire fund had passed by an assignment to a party to whose rights he succeeded under a subsequent assignment.

I see no reason to alter the decision which I announced at the conclusion of the argument in regard to the rights of the bondsmen. Holding always in view the claims and admissions of these bondsmen contained in their answer, and in the argument of their counsel, I reached the conclusion announced at the end of the oral argument, that the bondsmen were entitled to receive from the fund $3,347.25, leaving a balance of $589.59 to be disposed'of between the complainants and the defendant Thomas Brogan, the former claiming under their statutory lien, and the latter claiming under'his assignment. Whether under the evidence which was produced in this cause or under evidence which might have been produced with a somewhat different view of the nature of the case from that which was accepted by counsel, the amount to be adjudged due to the bondsmen might have been altered, I shall not undertake to inquire. This is a case where in my judgment it is particularly the duty of the court .to decide the case which has been argued and not construct some other ease out of the testimony which was not introduced by any party for that purpose.

In dealing with the contentions between the complainants as lien claimants -and. the defendant Brogan as assignee, I shall also take the case as it stands with the admissions which counsel for these parties respectively have made. It certainly might be argued that there never was any money which was due or became due to the contractor, Maloney, after he broke his’contract and abandoned the same, and that therefore no lien could be created tinder the statute by notice, and no instrument could operate as an equitable assignment, there being nothing now in existence which potentially was the subject-matter of the assignment when the same was made. If Maloney never earned anything, except what he received in cash — if Maloney, neither at the time he absconded and. abandoned his contract, or at any future time after the board of education had succeeded in procuring the completion of-the building which he had wrongfully neglected and refused to complete in violation of his contract, could have maintained any action at law or in equity for the recovery of this $589.59 in question, it certainly is difficult to see how the complainants’ statutory notice or the defendant Brogan’s equitable assignment could in any way attach to this fund.

These two contestants, however, through -their counsel insist that this $589.59 is tó be treated as money due to Maloney under his contract, and, in view of the attitude of the board of education about which their answer filed in this cause leaves no question, and the attitude of the bondsmen which is equally clear, it cannot be said that the viewr of these rival defendants is without equitable support. The board of education, this public body, in effect, lays down the fund in court, making no claim to it, and I consider it the duty of this court to regard the fund as the property of Maloney subject to the claims of these contesting parties under their respective assignments, the one a voluntary assignment and the other an involuntary assignment under the provisions of the statute. It cannot be doubted that if this money belonged to Maloney it was earned by him under the contract, and hence wras assignable and lienable. If the money never belonged to Maloney it remains the money of the board of education and constituted a convenient fund out of which the board could pay what was due to the bondsmen under their contract with the board for the completion of the building. The board of education, however, makes no claim to any part of the fund, but in effect pays it into court. The court therefore lias proceeded first to satisfy all claims of the bondsmen set up in their answer and urged in the argument of their counsel, which it finds dire to them under their contract for the completion of the building, and may then very properly •treat any residue as the property of Maloney and subject therefore to assignment and lien under the statute.

Counsel for the complainants limits his claim to the sum of $400, an item allowed finally upon settlement of all accounts on account of certain extra work in the way of excavation done by Maloney before he abandoned his contract. As to the remainder of the fund now under examination ($189.59) counsel admits that the assignment of the defendant Brogan has priority.

Treating the entire fund ($589.59) as lienable under the statute and as subject to transfer under an equitable assignment, the whole controversy turns upon the question whether the assignment proved in this ease operated to effect a transfer of the whole fund or only part of it, viz., $189.49.

My conclusion from the premises assumed by both these contending parties is that the equitable assignment carried the whole fund, and the same must be awarded in its entirety to the defendant Brogan, and I shall here endeavor briefly to set forth the reason for this view. We have in hand what is essentially the construction of the assignment under which the defendant Brogan claims, and the assignment cannot be construed without also construing a part of the contract to which the assignment relates.

' The fallacy which I think underlies the argument of counsel for the complainants grows out of the distinction madg between what is called the contract price and any amounts earned and paid for extra work. I think it is quite clear that all moneys which Maloney earned or possibly could earn in the erection of this building for the board of education were, and necessarily would be, earned under the contract so as to become lienable under the statute and the same of course would also be assignable.

According to the original contract between Maloney and the board of education, the former agreed in consideration of $33,-886 to do all the mason work upon a certain school building according to certain “plans, specifications and proposals” and furnish sufficient materials therefor. Certain specified work and material were to be done and furnished for a certain specified sum. But the contract provided that the board of education might at any time make “any alteration, deviations, additions or omissions,” and that in such case the contract should remain in force with a reasonable addition or deduction from the contract price, as the case might be. Thus the contract price was not a sum specified, but a sum specified subject to being increased ot diminished by tbe action of the board of education in making alterations which at any time they had the right to make.

Payments according to the contract were made “upon the installment plan, to wit, monthly,” as the work proceeded to the extent of eighty-five per cent, of the value of the work done, fifteen per cent, being retained “until the final completion of the said building and as a guaranty for the protection of the said board until the final acceptance of the said building by the said board,” at which time the retained fund was payable to Maloney, “but only upon the presentation to the said board” of the architect’s final certificate. It may be remarked in passing that these provisions bear with great force upon the question whether in fact any money ever was earned by Maloney or became payable to him under the contract so as to1 be li.enable or assignable, but we have got beyond this point. The point to hold distinctly in view is that the fifteen per cent, was to be retained upon everything that was due upon the contract, including work not mentioned in the specifications but called for by the board of education under the provision of the contract above set forth. One week after this building had been commenced by Maloney the board of education had the right to demand its extension so as to make it larger and the extra work so called, for might amount to say thirty per cent, of the contract price, or .in round numbers, $10,000. Tile work oil the whole building thus enlarged would proceed from month to month, and the contractor, Maloney, would become entitled to eighty-five per cent, upon the work which the architect certified liad been done without regard to whether such work was mentioned in the specifications or provided for in the contract in the provision for alterations above set forth.

The assignment under which the defendant Brogan claims was made by Maloney to Thomas Earnon, Jr., and bears date June 22d, 1904, twenty days after the contract between Maloney and the board of education was made. It is evident that there was little if any money then in existence upon which the assignment could operate. The great force of the instrument consists in its operation as an equitable assignment upon money which the assignor, Maloney, contemplated he would earn by the performance of the contract. The assignment recites the more important provisions of the contract — that Maloney had agreed to “complete a certain school house; that fifteen per cent, of the contract price should be retained until after the completion” of the said school house, and then be paid upon the certificate of the architect, and that fifteen per cent, of the contract price of the building of said school house was $5,082.90.

The instrument then proceeds to assign to the said Thomas Earnon, Jr., as collateral to- a certain note for $2,200 which after-wards became the property of the defendant Brogan, “the said payment of the said sum of $5,082.90 according to * * * the conditions of the specifications and the said contract,” and all the “right, title and interest” of the assignor therein and constituted the assignee, Thomas Earnon, Jr., the assignor’s attorney, “to enforce the payment of the said $5,082.90 according to the terms and specifications of the said specifications and the said contract

In my opinion this instrument assigned the reserved fifteen per cent, subject to increase or decrease as changes and alterations might be made by the board of education in the progress of the work according to the terms of the contract. It is true that the parties to this assignment described the subject-matter of the assignment with the contract price in' view, but the important matter which they had in their minds was the reserved fifteen per cent, which, as the assignment recited, when calculated upon Avhat is called the contract price, viz., the specified sum for the specified work, would amount to $5,082.90. The general intent is not affected in my opinion by a meagre or narrow, or even erroneous, description which evidently arose from the failure of the parties to the assignment to think out all the possible situations which might arise under the contract. They did not stop to consider- that the fund reserved might be less or might be more than the amount AAdiich they calculated by taking fifteen per cent, of the so-called contract price. Notwithstanding the recitation in the assignment, the fact remains that fifteen per cent, of the contract price of the building would be $5,082.90 only in case the somewhat extraordinary result should ensue that no alteration of any kind whatever was made by the board of education during the progress of the work which increased or diminished its cost. Reading this assignment “from the four corners” I think it must be deemed as an equitable assignment from Maloney to Earnon of the entire fifteen per cent, which, under the terms of the contract, was to be reserved by the board of education, and was to become payable upon a certain condition thirty days after the completion of the work. If the building had been enlarged so as to add $10,000 worth of so-called extra Avork, the retained fifteen per cent, would be $1,500 greater than the sum stated in this assignment and contemplated by the parties to the assignment as the exact amount of the retained fund which they meant to subject to their assignment. If, on the other hand, the board of education had reduced the cost of the building by $10,000, the retained fifteen per cent, would have been $1,500 less. We must read the contract and the assignment together and consider the obvious intention of the parties to the assignment, bearing in mind also that mere misdescriptions have very little effect in the way of defeating the general intent of an instrument. If these parties had had a particular sum part and parcel of the retained fifteen per cent, in view to secure $2,200, it was very easy and would have been very natural for them to ■ employ unmistakable language to effect that result. They not only did not use such language, but they assigned an entire fund, as they viewed it at the time, amounting to $5,082.90, down to the odd cents to secure less than half this amount. It was not a portion of a fund which these parties had in view but the retained sum in its entirety. What they had in mind, very clearly defined, was the extent of the debt due on Maloney’s note which was to be secured by the assignment and eventually might be payable out of the retained fund. When one sells a tract of. land which has a definite value per acre, he may be expected to have a very definite idea of the number of acres which he is conveying and to make that number appear clearly in his deed. If, however, one is mortgaging a tract of land to secure a debt, there is no necessity for considering carefully the area of the land to be mortgaged or describing that area with accuracy in the instrument. A mistake and a misdescription in regard to the extent of the subject-matter of an absolute conveyance may involve the maker of such conveyance in very substantial loss, while the same mistake and misdescription in a mortgage of the same property would be a matter of no consequence whatever. In this instance, the parties to this assignment' were intent upon securing a note for $2,200, and it was not necessary for them to read the contract with the city carefully, and consider all its provisions when they were merely describing the fund which Maloney expected to earn and which he was merely using as security for the money which he was borrowing. If Earnon had been acquiring absolutely Maloney’s potential interest in a fund which would be retained from mone3r which Maloney expects to earn, it is safe to say that he would have read his assignment, and also the contract to which it referred, with very great care, in order to discover just what the extent of the payment might be under every supposable set of circumstances; but he had no motive to make such a careful inquiry when he was merely acquiring a mortgage interest in this fund which would remain constant whatever the extent of the fund might be. In brief, the parties to this assignment would probably not be liable to make a mistake in regard to the extent of the mortgage interest which the assignee was acquiring, while they might be very liable to be careless and make a mistake of description which merely affected the extent of the thing that was mortgaged.

Accepting the premise that the fund in dispute at some time became due to Maloney under the terms of this contract, so as to be assignable and lienable under the statute, I see no escape from the conclusion that the assignment has priority, and that therefore the entire residue ($589.59) must be awarded to the defendant Brogan.

Some questions probably will arise as to the form of the decree, and therefore the decree may be settled on notice.


author: Garrison, V. C.

text:
    Carrie J. Komp v. George Thomas, administrator, &c.
    [Decided December 14th, 1912.]
    1. A devise of an estate, generally, with a power of disposition absolutely and without limitation, imports such dominion over the property that an estate in fee is created, and any devise over is void
    2. Under a will giving one-half of the residue of testatrix’s estate to a daughter for life, with the right to use and dispose of so much thereof,, in addition to the income, as she might deem necessary for her comfortable support, and upon her death such share or so much as then remained to another daughter, the first taker had a life estate with the right to use what might be deemed necessary for her comfortable support; such construction applying as well to personalty as to realty.

      Messrs. Collins & Corbin, for the complainant.

      Mr. Frank A. Boeitner, for the defendant.
   Garrison, V. C.

This is a suit by Carrie J. Komp, who is the daughter of Caro-' line M. ’Wood, and is against George Thomas, who is administrator of his wife, Agnes E. Thomas, deceased, said Agnes being a sister of Carrie J. Komp, the "complainant.

The purpose of the suit is to obtain an accounting from the defendant with respect to certain property which was in the possession of his decedent, his wife, at the time of her death. The proper disposition of the case depends upon the construction to be placed upon the will of Caroline M. "Wood. The clause of the will in question reads as follows:

“Fifth. One half of all the rest and residue of my estate, real, personal or mixed, I give, devise and bequeath to my daughter, Agnes E. Thomas, wife of George Thomas, for and during the term of her natural life with the right to use and dispose of so much of said Estate in addition to the income, rents, issues and profits thereof, as she may deem necessary for her comfortable support and -maintenance, and upon the death of my said daughter, Agnes E. such share of my said residuary estate, or so much thereof as then remains, I give to my daughter, Carrie J., wife of Frederick Komp, if then living for the term of her natural life, and with the right to use and dispose of so much of the same in addition to the income, rents, issues and profits thereof, as she may deem necessary, and upon the death of both of my said daughter, Carrie J. and my said daughter Agnes E., then forever to such of the children of my said daughter Carrie as shall then be living and to the issue of any such of my said daughter Carrie’s children as may, prior to that time have died, leaving issue, such issue to take per stirpes the share that such deceased child of my said daughter Carrie should have taken under this will, if then living.”

The one-half of the remainder above provided for passed into the possession of Agnes E. Thomas, and remained in her possession during her lifetime, she expending the income and portions of the principal. The contention of the complainant is that the proper construction of the clause in question gave to the said Agnes E. Thomas a life estate in the property thus devised to her, and then a life estate in the same property (or what remained thereof) to complainant, and then a remainder over, with which latter we are not concerned.

The insistence of the defendant is that a proper construction of the will in question results in vesting the entire interest devised to Agnes E. Thomas in her absolutely without remainder over; his argument being that the power to dispose of the property being without qualification or limitation, indicates an intention to give a fee, and will be so construed.

The case has been so entirely and satisfactorily disposed of by the principle established and enforced in the court of errors and appeals in this state that it is only necessary to cite one such authority — Wooster v. Cooper (Court of Errors and Appeals, 1895), 53 N. J. Eq. (8 Dick.) 682. In that ease (at p. 684) the court said:

“It” [the will] “gives to his wife, by express words, a life estate in his property, and then annexes to it a power to dispose of the same without qualification or limitation. The rule that a devise of an estate, generally, with a power to dispose of the same absolutely and without limitation, imports such dominion over the property that an estate in fee is created, and that a devise over is consequently void, has one exception, which is this: That where the testator gives an estate for life only, by certain and express words, and annexes to it such a power of disposal, the devise for life will not become an estate in fee.”

This case also is authority that the same principle applies to bequests of personal estate as well as devises of realty.

It is unnecessary to burden this opinion with the numerous cases subsequently decided in this state which recognize and enforce the principle as above expressed.

By reference to the main case and the notes next to be cited, it will be found that a similar principle is almost universally recognized and applied. Steiff v. Seibert, 6 L. R. A. (N. S.) 1186.

The result is that Agnes E. Thomas will be held to have had a life' estate with the right to use what may be deemed necessary for her comfortable support and maintenance; and'that an account must be rendered by the defendant of the property, less such sums as may be found to have been necessary for the comfortable support and maintenance of the said Agnes E. Thomas.

This is in accordance with the finding in Cox v. Wills, 49 N. J. Eq. (4 Dick.) 130 (reversed in the court of errors and appeals, Idem. 573, upon other grounds, the court of errors expressly sustaining the vice-chancellor upon the point just adverted to). .

I will advise a decree in accordance with the conclusions above expressed.


text:
      William Gulden v. August W. Lucas et al.
    [Decided January 24th, 1913.]
    1. The Chattel Mortgage act (P. L. 1902 pp. 481, 488 §§ 4, S), requiring immediate possession by the mortgagee, or an immediate recording of the mortgage, means, by “immediate recording,” as soon as may be by reasonable dispatch, under the circumstances.
    2. A chattel mortgage was ready for record and in mortgagee’s possession between twelve and one o’clock on Saturday, the 27th. The mortgagee’s place of business was only an hour’s ride by trolley from the office of the county register, which could be reached by mail in the afternoon, if the document was mailed in the morning, or, if mailed in the afternoon, it would be delivered the next morning on a business day. If the mortgage had been mailed on Saturday, the 27th, it would have been delivered on Monday, the 29th, and, if mailed on the morning of the 29th, would have been delivered to. the register during office hours; but it did not in fact reach his office until the afternoon of the 30th. — Held, that the recording of the mortgage was not an “immediate recording” within the Chattel Mortgage act (P, L. 1902 pp. 481, 488 §§ 4t ®), which means as soon as may be by reasonable dispatch, under the particular circumstances.
    Heard on pleadings and proofs.

      Mr. Charles W. Kappes and Mr. Emil Walscheid, for the complainant.

      Messrs. Hudspeth, Rysdyh ■& Garrison, for the defendants.
   Garrison, V. C.

The only point to be decided in this suit at this time is whether or not a chattel mortgage given by the defendant Lucas to the complainant, Gulden, is valid as against the defendant the Berghoif Brewing Company. The Berghoff Brewing Company was a creditor of Lucas, has obtained a levy and is legally in a position to attack the validity of the chattel mortgage in question. Prior to November 26th, 1909, Lucas was indebted to the Berghoff Brewing Company in, a sum exceeding all the money involved in this suit. On the 26th of November, 1909, in the afternoon of that day, Mr. Nappes (who was the lawyer for Mr. Gulden) and Mr. Gulden and Mr. Lucas met for the purpose of having Lucas make a chattel mortgage to Gulden for money due from Lucas to Gulden.

Mr. Kappes testifies, and he is not contradicted, either by other oral testimony or by written evidence, that Mr. Gulden left before the chattel mortgage was executed; that at the time that Gulden left everything had been agreed upon excepting the manner of repayment. After Gulden left, Kappes and Lucas agreed tentatively upon the matter just mentioned and the chattel mortgage was fully executed, acknowledged and in shape for record. Mr. Kappes, however, says that he had no right at that time to. accept, this mortgage on behalf of his principal, Mr. Gulden, and would not have such right until Mr. Gulden had been informed of the tentative agreement as to the terms of repayment (or payment, whichever phrase is the correct one). On Saturday, the 27th of November, 1909, Mr. Kappes, about the middle of the day (some time, he says, between twelve and one), saw Mr. Gulden, and Gulden approved of the mortgage as drawn, and Kappes left it with Gulden. On Tuesday, the 30th of November, 1909, at twenty-nine minutes after twelve o’clock noon, the mortgage was recorded.

The sole question is whether or not, under the statute and the decisions construing the same, this mortgage was recorded in time to save it from attack as against the existing creditor.

I had occasion, in the case of Brockhurst v. Cox, 71 N. J. Eq. (1 Buch.) 703; affirmed, 72 N. J. Eq. (2 Buch.) 950, to con-side]- the existing law in this respect; and since the court of errors and appeals adopted the .opinion filed in that suit, the rule is as stated therein. It was there held that the provisions of the Chattel Mortgage act require an immediate possession by the mortgagee, or an immediate recording of the mortgage, and that “immediate recording” means as soon as may be by reasonable dispatch under the circumstances of .the case.

The circumstances of the case to be here considered, are that this mortgage, at the very latest, was complete and ready for record and in the possession of the mortgagee at some time between twelve and one o’clock on Saturday, the 27th day of November, 1909, conceding, in his behalf, that it was not to be considered to be operative and ready for record from five o’clock in the afternoon of Eriday, the 26th, when his attorney received it in its completed, executed condition.' The mortgagee’s place of business, where the mortgage was delivered to him, was not more than one hour by trolley from the office of the register, of Hudson county, where the mortgage should properly be recorded. By messenger, it could reach said office in one hour; by mail, it could reach the office in the afternoon of any business day on which it was mailed in the morning; or, if mailed in the afternoon, would be delivered the next morning on any business day. If it had been immediately sent by a messenger, it would have reached the office on the afternoon of the 27th. If it had been mailed on Saturday, the 27th, it would have'been delivered in the morning of Monday, the 29th; and if mailed on the morning of the 29th, would have reached the office some time during business hours of that day. As above stated, it did not reach the office until afternoon of the 30th..

. I feel constrained to hold that, in no proper use of language, can this be said to be an.“immediate recording” under the circumstances of the case. If “immediate recording” is extended so as to include more time than is reasonably adequate under the circumstances, the rule laid down is practically abrogated. I cannot find that the time consumed between the receipt of this mortgage by the mortgagee and its recording could reasonably have been utilized in getting the paper to the place of record. The result is that this mortgage must be held to be invalid as against the existing creditor.