text:
    George Agalias and Avangelas Apanavas, complainants, v. Harry Hirschfield and Joseph Greebel, defendants.
    [Decided May 19th, 1926.]
    A doorway in certain premises leading to an alleyway, presupposes the right of using the alleyway to get in and out of the door, and, therefore, the door and the right to use it is an “appurtenance” to the property, and an owner of the premises who purchased subject to a lease which included appurtenances cannot block the alleyway or build upon it during the existence of the lease.
    On bill, &c.

      Mr. David Boslcein and Mr. Jerome Alper, for the complainants.

      Mr. William Greenfield, for the defendants.
   Church, V. C.

This is a bill to enjoin the erection of a building on property owned by the defendants, which will deprive complainants of their present means of ingress and egress over premises leased by them.

On December 24th, 1921, Peter Hauck, Jr., owned land on the southwest corner of New and Washington streets, in the city of Newark. A building covers the entire Washington street frontage. In the rear of the building, projecting from the second story, is an open piazza extending to the extreme portion of the lot, and open on New street. Below the piazza is an alleyway used by the occupants of the building in common, to which stairs descend from the piazza. The building is divided in half. The half not contiguous to New street was leased by Hauck to complainant in December, 1921, in the following terms:

“All of the store and part of the cellar of premises known and designated as 119 Washington street, in the city of Newark, county of Tiissex and State of Neiw Jersey, and' also the apartments contained on the two floors above said store, one apartment on each floor, with the appurtenances and sole and uninterrupted use and occupation thereof * *

Complainants entered into possession on January 1st, 1922, and have ever since used the alleyway on which the defendants now seek to erect their new building. After this entry defendants purchased the premises from Peter Hauck.

I have personally inspected the premises and find that the result of the erection of this building would be: The cutting off of the steps leading from the piazza to the alleyway, compelling the tenants of the apartments to seek means of ingress and egress, not through the alleyway to New street, but through a hallway in the house to Washington street, thus limiting them to one exit instead of to two as now. The first floor is operated by complainants as a restaurant, the dining-room being at the Washington street front with kitchen in the rear. The erection of this building would prevent the complainants from receiving their supplies, and removing their ashes and garbage through this alleyway. The defendants suggest that they are willing to allow complainants to carry the ashes and garbage down into complainants’ cellar, across said cellar, through a wall between the two cellars, which must be opened for that purpose, across defendants’ cellar up another flight of steps and through a trap door and thus out into New street. To do this complainants must take the garbage and ashes through the kitchen. It is quite obvious that this is a much more inconvenient method than that of receiving and discharging through the back door of the kitchen into the alleyway. Should the garbage and ashes be taken through the dining-room to Washington street, it may very well be that the restaurant customers would object, and thus the complainants’ business would suffer. The erection of the proposed building would block up two windows and a door leading into the alleyway on complainants’ premises.

The learned counsel for the defendants says that the sole questions before the court are the construction to he put upon the term “appurtenances” mentioned in the lease, and whether the alleyway is necessary to the complainants for the sole and uninterrupted use and occupation of the premises.

It seems to me that a doorway in the demised premises leading into an alleyway presupposes the right of using the alleyway to get in and out of the door. Otherwise, the door is useless. In other words, the door, and the right to use it, is “an appurtenance” of the lease, the sole and uninterrupted use and occupancy of which is granted by the lease.

The question as to whether or not the use of the alleyway is necessary to complainants, I think, is answered in the affirmative by the defendants themselves. They offer to alter the present condition of their cellar wall and allow complainants to cross their cellar in order to reach New street. This is an admission that, as matters now stand, the only way to get the ashes and garbage out of the place without going directly through the dining-room — which . they have not had the temerity to suggest — is through the alleyway. The substitute they offer is a variation of the terms of a lease already made before they obtained the property, and I am of the opinion that they cannot compel complainants to accept it.

Defendants also intend to completely block up two of complainants’ windows. Surety, an appurtenant of a window is the opportunity to look through it and obtain light and air from it. The reduction of the exits from the apartments from two to one is an interference with the sole and uninterrupted use of the demised premises.

Eor these reasons I will advise a decree enjoining the defendants from the erection of the building, and directing that the alleyway be restored to the condition in which it was before the building was commenced, so to remain until the expiration of the complainants’ lease.


source: Caselaw Access Project

author: Church, V. C.

license: Public Domain

text:
    Johanna Goetter, complainant, v. Philip Berth et al., defendants.
    [Decided July 1st, 1926.]
    Where a will provided that the testator’s wife should “after my decease have and hold all that I may be rightfully possessed of at the time of my decease” * * * “and, in short, she shall have all the rights that I have as well in law as in equity,” the will is sufficient to pass title to real estate although the words “give and' bequeath” are used in the earlier part of the will as disposing of bis estate.
    On bill, &e.

      Mr. Meyer Semel, for the complainant.

      Messrs. Steiuart cG Hartshorns, for the defendants.
   Church, V. C.

This is a bill for the construction of the will of one Gottfried J. Goetter. The 17111 is as follows:

“I give and bequeath all my personal property to my beloved wife, Johanna Goetter, so that she shall after my decease have and hold all that I may be rightfully possessed of at the time of m,y decease, and she may hold it or dispose of the whole or any part of it as she thinks best, without let or hinderanee from any so person whosoever. And she may draw money from banks or any other securities on my name, also collect or. sue for any money due me at the time of my decease. In short, she shall have all the right that I have as well in law as in equity.”

' The testator died in 1913, and thirteen years elapsed be-> fore any attack was made on the validity of the will. Testator’s children, apparently, acquiesced in the theory that the property was that of their mother. Two grandchildren now dispute this and insist that their grandfather died intestate as to his real estate, owing to the fact that the will “gives and bequeaths all my personal property,” and says nothing about real estate. At the time of the making of the will testator owned no real estate. At his death he owned the real estate in dispute, and, practically, no personal property.

Testimony was admitted over objection tending to show that testator had said, on or about the time the will was made, that he desired his wife to have his entire estate. Also, that the will was prepared by one Seidel, a layman, a justice of the peace. I do not think it is necessary to consider the extraneous testimony. My conclusion is based upon a careful consideration of the wording of the will itself.

In the first place, “a will ordinarily speaks from the time of the death of the testator.” 40 Cyc. 1424; Voorhis v. Otterson, 66 N. J. Eq. 172. Therefore, the fact that testator owned no real estate in 1891 is of no moment, especially when the fact is considered that he did not die until 1913. He allowed his will to remain unaltered all those years, and had he desired to make other disposition of his real estate than to his wife he had ample opportunity to do so. Second. “The presumption is that the testator intended to dispose of his entire estate and not to die intestate as to the whole or any part thereof.” 40 Cyc. 1409, and cases cited. To hold that this will does not pass the real estate is practically to declare that testator died intestate as to the personal property amounts to almost nothing. The will was drawn by an unskilled scrivener, as is apparent from its wording, and while it-starts off with the words “all my personal property,” it goes on- to say “so that she shall after by decease have and to hold all that I may be rightfully possessed of at the time of my decease. * * * In short, she shall have all the rights I have as well in law as in equity.” It should be noted that it refers to “property I may be rightfully possessed of at the time of my decease.” This, I believe, includes the real estate, and clearly makes the will speak from testator’s death. Carter v. Gray, 58 N. J. Eq. 411.

I will adyise a decree in accordance with these conclusions.


text:
    Felix Capone et al., complainants, v. Adam Ranzulli, defendant.
    [Decided September 22d, 1926.]
    1. The erection of structures on the land of another is such an interest in lands as the statute of frauds requires to be in writing.
    2. Where a defendant alleges a parol agreement to .encroach on lands of another, corroborated only by his own agent, but emphatically denied by the owner of the land, such agreement has not been proved to the point of demonstration.
    3. Equity will enjoin continuous trespass where the injury is irreparable.
    On bill, &C.

      Mr. William A. Lord, for the complainants.

      Messrs. Iíampson & Kent, for the defendant.
   Church, V. C.

This is a bill for a mandatory injunction, restraining defendant from continuing certain encroachments upon the lands of the respective complainants. It is admitted that the defendant has erected buildings which encroach upon complainants’ property.

Defendant alleges that when the cellar was excayated for one building it was found that the proposed building would encroach on land of complainant Petrucellis, and that thereupon Petrucellis gaye oral permission to defendant to proceed. This Petrucellis denies. Defendant also alleges that when the other building was about five feet above the ground it was found that it encroached upon land of complainant Capone, whereupon Capone gave oral permission to proceed. This Capone denies, and both complainants insist that their first knowledge of the encroachments was when a building and loan association refused defendant a loan on account of the encroachments, and he came to- them to endeavor to acquire their land upon which he had built.

It is well settled in this state‘that the erection of structures on the land of another is such an interest in lands as the statute of frauds requires to be in writing. Hartman v. Powell, 68 N. J. Eq. 293. In the case of Hetfield v. Central Railroad Co., 29 N. J. Law 571, the court of errors and appeals held: “A license to enter upon land not coupled with an interest in the premises may be revoked at the will of the party granting it. A right to come upon land of another and remain for an indefinite time can be granted only by deed, and where the license is by parol it may be revoked at any time even if money be paid for it, and expense incurred in erecting buildings or other permanent improvements upon it.” See, also, Johanson v. Atlantic City Railroad Co., 73 N. J. Law 767.

There are some eases in which our courts have validated parol contracts regarding interests in land, but as Vice-Chancellor Grey said in Hartman v. Powell, supra: “In this state the court or errors and appeals has, with regard to this section of the statute of frauds, declared that in all eases in which any court has validated parol contracts passing an interest in land the contract itself has been required to be proved to the point of demonstration.” Lawrence v. Springer, 49 N. J. Eq. 297. Barbour v. Barbour, 51 N. J. Eq. 267.

That is far from being the situation in the cases now before me. Defendant alleges a parol agreement, corroborated only by his own agent, the architect, which the complainants emphatically denjc Erom the attitude of the witnesses on the stand I am inclined to believe the complainants’ story, but, at all events, the parol agreement has not been proved “to the point of demonstration.”

Equity will enjoin continuous trespass where the injury is irreparable. Hirschberg v. Flusser, 87 N. J. Eq. 588.

I have no doubt that these encroachments constitute an irreparable injury. I discussed this matter in the case of Krich v. Zemel, 96 N. J. Eq. 208. The fact that there are admittedly encroachments on complainants’ land detracts from the marketability of the property, and until removed are a cloud upon the title. Defendant himself failed to obtain a loan on his bouses because they were partly on complainants’ land. Doubtless, complainants would find the Same difficuRy, should they wish to sell or mortgage.

I will advise a decree allowing the injunction prayed for.


text:
    Blanchard Securities, Incorporated, complainant, v. The Alliance Building and Loan Association of Newark, defendant.
    [Decided September 10th, 1926.]
    1. A contract under seal embracing the whole subject-matter of a former contract not under seal, supersedes the former.
    2. Where an application for a loan on mortgage and the mortgage itself differ, the mortgage will not be reformed, as there was no -mutual mistake.
    On bill, &e.

      Messrs. Osborne, Cornish & 8check, for the complainant.

      Messrs. Wolber & Gilhooly, for the defendant.
   Church, V. C.

The facts in this case are, briefly, these: Complainant applied to the defendant for a loan, which was granted. The application was a printed form signed December 24th, 1923. In it the applicant authorized the defendant to place the insurace. It was not under seal. The mortgage, which was executed January 3d, 1924 — of course, under seal — was prepared by defendant’s attorney. It provides that complainant shall keep the property insured and assign the policy to defendant, and in default of complainant’s doing this, defendant shall have the right so to do. Defendant accepted insurance under the terms of the mortgage from its execution until the time this controversy arose.

The first point is, Do the terms of the application govern or those of the mortgage ? “A contract under seal, embracing the whole subject-matter of a former contract not under seal, supersedes the former.” Hargrave v. Conroy, 19 N. J. Eq. 281. I think, therefore, the terms of the mortgage in this case govern.

The second point is, Shall defendant be allowed to have the mortgage reformed so that it will conform to the application ? I think not. There was no mutual mistake. Complainant testified that the mortgage represented his understanding of the final contract. Defendant drew the mortgage, accepted it, and accepted insurance procured according to its terms. If defendant had so chosen, when the mortgage was returned to it executed, it could have declined to accept it, even though drawn by its own attorney, and insisted on strict adhesion to the terms of the application before making the loan. It did accept the mortgage, loan the money and accept insurance under the mortgage. In other words, it acquiesced in the terms of the mortgage, and is now estopped from asking for its reformation.

I will advise a decree according to the terms of complainant’s bill.


text:
    Hannah Lubell, complainant, v. Eva Barend, Ovidio C. Bianchi et al., defendants.
    [Decided September 13th, 1926.]
    Wlhere the beneficiary under a will offered it for probate, which probate was refused, and then attempted to get possession of the whole estate, to the exclusion of the heir, who could have been easily found, on application of the heir, an injunction will .issue against such person, and the money will be ordered paid to the heir.
    On bill, &c.

      Messrs. Lazarus, Brenner & Vickers, for the complainant.

      Mr. Robert M. Boyd, Jr., for the Bank of Montclair.

      Mr. Ovidio Bianchi, pro se.

   Church, V. C.

Augusta Phillips,^who had been living with' a relative, Eva Barend, and her husband, died on March 13th, 1923, in a 'hospital in Orange, New Jersey. She left a will in and by which the defendant Eva Barend was made chief beneficiary, and a half sister, Hannah Lubell, was left a legacy of one dollar. She was mentioned in this will by her maiden name, and by her two married names. She has resided in New York City for many years and is listed in the telephone book. This will was offered for probate by Eva Barend, but was rejected because of faulty execution. Thereafter, one Louis Weinthal was appointed administrator of the estate at the instance of Ovidio Bianchi, Esq., who had theretofore acted for defendant Barend. The application for the bond was witnessed and acknowledged by Bianchi. In the item setting forth the names of the creditors only those of the undertaker and doctor appear. There is no mention of any claim of Eva Barend, although more than a year had elapsed since Mrs. Phillip’s death. I do not believe there was any real effort to locate Hannah Lubell, the sister, specifically mentioned in the will, and who might easily have been found and who was entitled to administration. After this, Bianchi agreed to collect for Barend a claim for services rendered amounting to $3,360, practically all that was left of the estate, he to receive twenty-five per cent, of the claim for his services. Bianchi then went to the administrator whose attorney he was and persuaded him to allow and pay the claim. I am satisfied that the administrator acted honestly throughout the entire matter, and did not know that Bianchi was acting for Barend as well as for him. These facts were proved at the hearing, and are not contradicted. Before the money was actually paid, Hannah Lubell applied to this court for relief, and an injunction was issued preventing the payment of this money until final hearing, and it is now on deposit in the Montclair bank subject to the order of this court.

The evidence in this case convinces me that Eva Barend, in conjunction with Bianchi, when she found the Phillips’ will was void, deliberately attempted to secure the assets by fraud. She had the will in her possession, specifically naming Hannah Lubell, and could easily have communicated with her had she so desired. The bank account of Mrs. Phillips shows payments of $65 per month to Mrs. Barend or her husband throughout practically the entire time Mrs. Phillips resided with them. Their statement that they gave cash for these cheeks is unbelievable. There are, with one exception, no deposits of $65 in the account. When Mrs. Phillips went to the hospital, payments of $22.50 per week appear in the account, until four days before her death. The bank balance constantly decreased from the time Mrs. Phillips went to live with the Barends until her death, and was active throughout that time. All Mrs. Phillips’ personal effects, except some valuables in a safe deposit box, were in the home and under the control of the Barends. The Barends, however, declare that there are no return vouchers and no check books in their possession, and they never had any. The record of the Bank of Montclair shows that the first withdrawal of Mrs. Phillips’ return vouchers, February 17th, 1922, was signed for by Eva Barend, and that the last withdrawal of vouchers from the bank made February 17th, 1923, only a few days before the death of Mrs. Phillips, was signed for by Mrs. Barend’s son, Louis. The testimonjr, in my opinion, clearly shows that Eva Barend set out to get the entire estate of an old and ill relative. When the will Mrs. Phillips made leaving everything to her was found to be void, in spite of the fact that she had been paid to take care of Mrs. Phillips, she determined by means of a false claim and the destruction of vouchers to get the bulk of the small estate in any event. In my opinion, she is not entitled to anything. She was paid for what she did, and, moreover, the testimony shows that she comes into the court with hands far from clean.

How far Mr. Bianchi was cognizant of the facts last above mentioned I do not know. I do believe, however, that it was highly unethical for him to act as counsel for an administrator, and then, acting for a claimant against the administrator, persuade him to pay a claim of very doubtful validity, of which he himself expected to receive twenty-five per cent. Moreover, I believe he could easily have located Mrs. Lubell had he so desired, as the will was specific in the mention of her.

I will advise a decree disallowing in toto the claims of Barend and Bianchi, directing the money be paid to the administrator, declaring Mrs. Lubell to be the heir-at-law and next of kin of Augusta Phillips, and that the physician’s bill be paid.

The case of Weinthal v. Barend involved the same issues, was consolidated with this case, and my conclusions in this case apply to both.


text:
    John D. Goldberg, complainant, v. Mary Levy and Harry Berger, defendants.
    [Decided September 10th, 1926.]
    To be a bona fide purchaser without notice, the defendant must not only have agreed to purchase without notice of complainant’s previous agreement, but he must also have actually paid the purchase-money and taken his deed without such notice, and notice to his attorney is sufficient to charge the defendant.
    On bill, &c.

      Mr. William Greenfield, for the complainant.

      Mr. Joseph Susslcind, for the defendant Mary Levy.
   Church, V. C.

This bill is filed to compel the defendant Mary Levy to specifically perform a contract, dated June 2, 1925, wherein she agreed to sell property on Jones street, Newark, to the Constrncto Realty Company, which contract was assigned to the complainant on June 11th, 1925.

Defendants, in the first place, insist that complainants were never ready to take the title, and, in fact, abandoned the contract. The testimony shows that an application was made by complainant to a building and loan association for a loan on the property, but that Joseph Susskind, counsel for the association, and in this case counsel for defendant Mary Levy, informed complainant that there were liens against the property, to wit, six bail bonds totaling $6,000. The purchase price was $5,800. Defendants had received a deposit of $300. Some of these bail bonds were not canceled until September 22d, 1925, and one for $1,000 not until May 22d, 1926, two days before the trial of the cause and long after the filing of the bill. There is evidence that Goldberg made efforts to have the title cleared so that he could accept it, and I think the reason for the delay was the failure of the defendant to cancel the liens. In the course of the negotiations counsel for defendant wrote a letter to complainant demanding that he take title by a certain date, October 1st, 1925, and seeking to make that date of the essence of the contract. I do not see how this can be effective as a defense, inasmuch as there were still liens against the property which the defendant had not canceled.

It also appears that Mary Levy entered into a contract of sale for the same property with one Harry Berger, on November 21st, 1925, recorded on November 21st, 1925, at one-twelve p. m., two hours before the contract with complainant was recorded. Therefore, it is contended that Berger was a bona fide purchaser for value without notice, and is entitled to a deed under his contract. No deed was ever delivered to him and he paid no purchase-money.

“To be a bona fide purchaser without notice, the defendant must, not only have agreed to purchase without notice of the complainant’s previous agreement, but he must also have actually paid the purchase-money and taken his deed without such notice.” Cramwell v. Clinton Realty Co., 67 N. J. Eq. 540.

“Payment or its equivalent of the whole purchase-money is essential to the defense of a bona fide purchaser. The execution of a bond and mortgage in payment is not Sufficient.” Bridgewater v. Ocean City Asso., 85 N. J. Eq. 879.

Moreover, it is apparent that Berger must have had notice of the prior agreement between complainant and defendant. Joseph Susskind was the attorney who prepared the contract between Levy and Berger, and Susskind was the attorney for the building and loan, who informed complainant of the liens against the property when complainant went to him with his contract with Levy to perfect a loan. Susskind was Berger’s attorney and Levy’s, and had notice of the prior contract, which, I think, was notice to Berger.

It also appears that Joseph Susskind, attorney for Mary Levy, himself took title to this property, taking a bargain and sale deed therefor on May 21st, 1926, three days before the trial of this cause, and long after the lis pendens was filed and the case at issue. This fact was not disclosed at the trial and was brought to my attention after the cause was heard. I consider this a distinctly improper act on the part of counsel. He has assured me it was done merely to enable him to cancel the remaining bail bond. He assures me he will reconvey in accordance with my direction. I will not comment further on this transaction, but will advise a decree directing Mary Levy to convey the property to Goldberg and directing Susskind to make a similar conveyance.


text:
    Emma C. Matthews, complainant, v. Adaline B. Captain, defendant.
    [Decided September 10th, 1926.]
    A structure on the ground floor of Which was a garage and on the second floor bedrooms and a bathroom is a dwelling-house within the meaning of a building restriction which provides that no building other than a single-family dwelling-house with necessary out-building shall be built on each fifty-foot lot.
    On bill, &c.

      Mr. Walter G. Brandley, for the complainant.

      Mr. Philip D. Blliot, for the defendant.
   Church, V. C.

This is a bill to enjoin the alleged violation of restrictions in a deed for property in West Caldwell, Hew Jersey. The restriction is as follows: “No building other than a single family dwelling-house, to cost not less than $3,500, with necessary outbuildings, shall be built on each fifty-foot lot.”

In May, 1933, defendant erected on the lot a building containing a garage and five living rooms, which was occupied by her and her children. In August, 1933, defendant demanded that complainant, who then maintained a water line in the vicinity, should furnish her water at her then residence. On complainant’s refusal defendant appealed to the board of public utilities commissioners of the state, stating that the building was used as a residence. By direction of this board the water was installed.

In May, 1934, defendant erected on the front of said lot a dwelling-house, which she now occupies. The upper floor of the older building, together with one room on the lower floor, are occupied by tenants, who pay rent to the defendant.

It therefore appears that defendant, herself, before the utilities commission, has defined the building she now calls a garage as a residence, i. e., “dwelling-house.” This case is very similar to that of Goater v. Ely, 80 N. J. Eq. 40, in which Vice-Chancellor Garrison held that a structure on the ground floor of which was a boiler room and garage, and on the second floor bedrooms and a bathroom, was a dwelling-house, and allowed an injunction against its use as such.

The point is raised that there have been other violations of this restriction, and, therefore, the complainant cannot now object. In the first place, the instances mentioned in the agreed state of facts were only temporary occupancies by two distinct families — if they were such, for all used the same kitchen. Moreover, there is no evidence that complainant acquiesced in these alleged violations. In Bridgewater v. Ocean City Railroad Co., 62 N. J. Eq. 276, the court said: “That the complainant has lost all right to enforce the covenant, because the association has within the past three .years wrongfully permitted several buildings to be put on the camp ground, is no excuse for the defendant. No such acquiescence of the complainant is proven as charges him with any liability for the association’s breach of the covenant, nor can the defendants, donees of the association, set up the wrongdoing of their donor to protect them against the enforcement of the donor’s implied covenant.”

I will advise a decree accordingly, restraining the use of the older building as a residence or dwelling.


author: Ingersoll, V. C.

text:
    Mary Rhodes, complainant, v. John F. X. Ries et al., defendants.
    [Decided June 10th, 1926.]
    1. In all transactions between parties occupying relations whether legal, natural or conventional in their origin, in which confidence is naturally inspired, or, in fact, reasonably exists, the burden of proof is thrown upon the person in wbom the confidence is reposed, and who has acquired an advantage, to show affirmatively not only that no deception was practiced therein, no undue influence used, and that all was fair, open and voluntary, but that it was Well understood.
    2. The confidence which the relation of an attorney and client begets between the parties, and the influence which the attorney thereby acquires, has led to a very close scrutiny of all transactions between them, and the law often interposes to set aside contracts which, between other persons, would be subject to no exception. In such cases, the burden of establishing the perfect fairness, adequacy and equity of the negotiation is thrown upon the attorney, and in the absence of such proof, courts of equity treat the case as one of constructive fraud. In such transactions, the court leans most strongly against the attorney, who, while acting as such, has business relations with his client ■■on his own account.
    3. Evidence examined, and held, that the two assignments and the conveyance from a client to her attorney of the real estate must be set aside, and that a reference be had to a master to ascertain what amount the defendant should receive as compensation for his services, and to state an account, and that the conveyances will be allowed to stand as security until the amount is ascertained.
    On bill for injunction. On final hearing.

      Messrs. Cole & Cole (Mr. Clarence L. Cole, Sr.), for the complainant.

      Mr. Ulysses G. Styron, for the defendants.
   Ingersoll, V. C.

The defendant John E. X. Eies is a member of the bar of this state, and has been practicing his profession in Atlantic City since his admission in 1906. He has lived since childhood in that city. The defendant Amos Babcock has been for many years a resident of the same city. He has for a long time been a contracting paperhanger. Eor the past few years he has, in a small way, engaged in dealing in real estate. He was made a defendant because title to a certain property in Philadelphia, Pennsylvania, was placed in him to facilitate its conveyance. Prior to the filing of the bill, and it should be said — promptly after the closing of the transaction — he fully accounted for the proceeds of the sale so far as any accounting is concerned.

The complainant is a widow of seventy or seventy-five years of age. She is illiterate and unable to write her name. During the lifetime of her husband they accumulated considerable property in Atlantic City (and some in Pennsylvania, all of which has been disposed of), of which, at the death of her husband, she became seized. This property, since its acquisition by them, has increased very greatly in value. At the time of the execution of the several writings complained of, her estate amounted in real estate .and mortgages to, approximately, $110,000.

Since the death of her husband she lived for a considerable period with her only daughter. In 1923, as a result of quarrels between them, she left her daughter’s home and has since lived with others. Some of the trouble between them was caused or actuated by the daughter suggesting her mother to be mentally incompetent.

In November, 1923, complainant asked Babcock, with whom she was well acquainted and who had worked for her at various times as a paperhanger, to recommend a lawyer to represent her. .He introduced Ries to her. This was, apparently, their first business meeting, although there was testimony indicating that each had known the other by sight for some period, both haying lived in the same neighborhood.

Ries, ascertaining that the daughter had claimed or suggested the mental incapacity of her mother, and before he agreed to represent Mrs. Rhodes, asked her if she was willing to undergo an examination both as to her physical and mental condition. To this she consented. An examination was made by three reputable physicians of Atlantic City, who, in writing, certified that “we find her in good physical condition except for partial deafness and the arterio schlerosis usual in old age. Mentally she is clear and alert, except for uncertainty as to dates.” This examinataion was made in the month of December, and the certificate bears date, “December 11th, 1923.”

Ries then agreed to represent her as her attorney. On December 15th, 1923, she made a general power of attorney to Ries and Babcock as follows:

“Know all men by these presents, That I, Mary Rhodes, widow, of the city of Atlantic City, in the county of Atlantic' and State of New Jersey, have made, constituted and appointed, and by these presents do make, constitute and appoint Attorney John F. X. Ries and Amos Babcock, and any attorney my said Attorney John F. X. Ries and Amos Babcock wish to have to assist them, my true and lawful attorney and attorneys, for me and in my name, place and stead, and to my use, to demand, sue for and receive of any person or persons, firm or firms, corporation or corporations, company or companies, concern or concerns, of every kind and nature whatsoever and wheresoever, and to give acquittances for all sums of money, debts, dues and demands whatsoever, which are due and owing, or of right belonging unto me at this time, and to use all lawful means for the recovery thereof, and to compound and agree for the same; to ask, demand, distrain for, collect and receive all such rents and arrears of rent as now are or may hereafter be due or owing to me from the tenants occupying any and all property that I own or in which I have any kind of an interest whatsoever and wheresoever, or any of them, as tenants or occupants of any lands, tenements or hereditaments belonging to or claimed by me, or which may be due from or payable by any other person or persons whomsoever, as tenants, occupiers, lessees or assignees of any term or terms, of such land's, tenements or hereditaments, or any part of such lands, tenements or hereditaments, and, upon receipt thereof, to give proper acquittances and discharges thereof; to grant, bargain and sell any and all of my lands, tenements and hereditaments .or any part thereof for snch price or prices and on such terms as to my said Attorney John F. X. Ries and Amos Babcock and the attorney assisting my said attorney, John P. X. Ries and Amos Babcock, if they so desire, shall seem meet, and without the purchaser or purchasers being responsible for or concerned in any respect whatsoever in regards to, or as to the use or disposition of the purchase-money, and for me and in my name, to make, execute, acknowledge and deliver good and sufficient deeds- and conveyances for the same, either with or without covenants and - warranty; to exercise the general control and supervision over all my lands, tenements and hereditaments, to prevent, by all lawful means, the commission of any trespass or waste, or other injury thereupon; and, at my expense, and under the advice of such other counsel as my said attorney, John P. X. Ries and Amos Babcock, may employ, to sue for protection against any such injury, and to collect, recover and receive and compound for, any damages which may accrue by means of the commission of any trespass or waste upon my lands, tenements and hereditaments, or any part thereof, by any person whomsoever, and to cause insurance to be had and made thereon; to draw and accept bills of exchange and orders, and to make, endorse and transfer promissory notes and other instruments, signing my name thereto; to sign, seal and deliver bonds and obligations; to give receipts, acquittances and discharges; to prosecute any action or actions in my name; to buy, sell, exchange, barter and rent land and real estate, and for that purpose to receive, sign, seal, deliver and execute deeds, leases, contracts and other instruments, and generally to do and perform all matters and things which may (be requisite or proper to carry on my business; and for me and in my name, to receive and take all or any rents, issues and profits of all or any such lands, tenements, hereditaments, or any of them, and to let the same in such manner as my said attorney, John P. X. Ries and Amos Babcock so desire, shall think proper, and from time to time renew leases, and also all deeds, leases, agreements and writings in that behalf requisite and necessary for me and -in my name, to make, seal and deliver as my acts and deeds, and for me, and in my name, to settle and adjust with each and every person or persons, all accounts, dues and demands, subsisting or to subsist between them, any or either of them, and me, and to compound, arbitrate and agree to the same, in such -manner as my said attorney, John P. X. Ries and Amos Babcock so desire, shall think proper, and also to pay the taxes, insurance, water rents, sewerage and all other expenses for repairs of every kind and nature whatsoever and all other expenses of every kind and nature whatsoever that may arise for the protection and care of said lands, tenements and hereditaments; to borrow upori the security of my lands, tenements and hereditaments any sum or sums of money as my said attorney, John P. X. Ries, and Amos Babcock so desire, shall think proper, and to sign, seal and deliver a bond or bonds for the payment of such sums, and to sign, seal and deliver, as collateral thereto, a mortgage or mortgages upon said estate, lands, tenements and hereditaments, with the usual power of sale, and interest and insurance clauses, and other usual provisions and covenants; and also to place out on mortgage or any other kind of security any and all money that I have or may have with full power to draw and take out any and all money that I have in any ■bank or trust company, and all banks and trust companies, and with full power to take charge of, to draw and take out of and from any person or persons, firm or firms, company or companies, corporations or corporation, or any and all concerns of every kind and nature whatsoever and wheresoever all money and any and all business in his, her, their or its control. In consideration of my said attorney, John F. X. Ries, and Amos Babcock, or any attorney, my attorney, John F. X. Ries, shall select, acting as my attorney and using whatever money in the judgment of my said attorney, John F. X. Ries, and Amos Babcock, is necessary for my keep, and my said attorney, John F. X. Ries, and Amos Babcock, or any attorney my said attorney, John F. R. Ries and Amos Babcock shall select, also receiving five per cent, commission on all money handled and also receiving all such compensation that is proper for them and then-attorney or attorneys’ services in the performance of the duties required in this power of attorney. In consideration of any of the duties required and performed under this power of attorney by my said attorney, John F. X. Ries, and Amos Babcock, or any attorney my said attorney, John F. X. Ries, and Amos Babcodk shall select, this power of attorney shall continue in existence from the date of this instrument for the period of fifty years without any power of revocation of this power of attorney on my part; giving and granting unto my said attorney, John F. X. Ries, and Amos Babcock or any attorney my said attorney, John F. X. Ries, and Amos Babcock shall select to assist them without bond or other security, full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully to all intents and purposes as I might or could do if personally present, hereby ratifying and confirming all that my said attorney, John F. X. Ries, and Amos Babcock, or any attorney my said attorney, John F. X. Ries, and Amos Babcock wish and select to assist them shall lawfully do or cause to be done by virtue hereof.
“It is expressly understood and agreed upon by all the parties to this power of attorney that all papers, books and legal documents of every kind and nature whatsoever, shall remain in the control and custody of my said attorney, John F. X. Ries.
“I also give- my said attorney, John F. X. Ries, and Amos Babcock full power to collect all money due me from Frederick W. Wyld and also get all personal property of mine of every kind and nature whatsoever from said Frederick W. Wyld; and also to get all my clothes and personal property of mine of every kind and nature -whatsoever from my daughter, Mary Woods, also known as Mamie Wbods, particularly to get from the property 261S Monterey avenue, Atlantic City, New Jersey, all personal property of mine of every kind and nature whatsoever.”.

It is to be noted that this power was to continue for the term of fifty years, and was irrevocable. Eies and Babcock were to receive five per cent, of all moneys handled by them, and were to receive “proper compensation for their services.” All documents and papers of Mrs. Ehodes were to be placed in Eies’ hands and to be retained by him.

On March 12th, 1924, the daughter instituted proceedings in lunacy against the mother, and a commission was appoined by this court. This commission began the taking of testimony on April 7th, 1924, and the hearings continued until the 16th day of April, 1924.

Prior to the first hearing by the commission, on March 22d, 1924, an order was entered permitting her to withdraw from her money in bank such amount, not exceeding $1,500, as should be found necessary for her to properly defend herself in the proceedings.

The day before the first hearing held by the commissioners, i. e., on April 6th, 1924, she executed a paper in which, after reciting the fact that she had engaged Eies as “agent, attorney-at-law and eouuselor-at-law;” that he had faithfully acted as agent, attorney-at-law and counselor-at-law in every respect; that she had been unable to pay him any sufficient fee, or to reimburse him for any costs or charges, and that Eies had agreed to represent her in any litigation concerning her mental condition; agreed with him (Eies)

“that for the services rendered and expenses incurred heretofore, and the services hereafter to be rendered and expenses to be incurred, and in his office as aforesaid, meaning my agent, attorney and eounselor-at-laiv, John F. X. Ries, and also for the expenses above described, and I assign as explained above and below, and also that I shall and will pay him, John IF. X. Reis, a sum of money equal to one-half of my property, real and personal, in every respect whatsoever, at any time as said John F. X Ries wishes, desires or requests. The said portion, one-half, to be paid out of the total balance of my property, real and personal, in every respect whatsoever I have or may have and it is
“Further covenanted and agreed by me that X hereby expressly waive and quit-claim by virtue of the foregoing, all and every right I have or may have to adjust, compromise, settle or enter into any agreement whatsover respecting my said property, real and personal, affecting and altering my rights except by and only by him and with the advice and consent of the said John F. X. Ries, my agent, attorney and: counselor-at-law; and it is
“Further covenanted and agreed by me that in the event- that this agreement is in any way or at any time hereafter violated by me, or changed by me under any circumstance or circumstances, the said John F. X. Ries, my agent, attorney and counselor-at-law, may forthwith have his proper remedy and enforce the full and entire terms and conditions of this agreement, without further effort on his part to carry out the office of agent, attorney and counselor-at-law herein imposed upon him, and I make this agreement irrevocable, and desire the same may be recorded as such.”

On April 16tli, 1924, the jury in the lunacy proceedings returned a verdict declaring her to be of sound mind and memory and the commission so reported, and proper orders were filed.

The day after the return of the jury, on April 17th, 1924, she executed a power of attorney wherein she authorized Eies to sell certain of her real estate and one or more mortgages for the purpose of paying bills, &c. There was included in this instrument the following:

“I hereby request, direct, authorize and empower my said attorney, John F. X. Ries, to -bank all of the above said money of every kind and nature whatsover in his own name, with the further object that I shall not be troubled or bothered about depositing money in my own name in bank, and also that I shall not be troubled or bothered about -signing, making finger-prints or making my mark on checks against any account I have or may have in any one or more banks.
“And in consideration of all of the above, I hereby request and direct that my said attorney, John F. X. Ries, shall not be required at any time whatsoever to give any account or accounting of any money he has or may receive by reason of the above, or of any money he has or may spend or disperse by reason of the above. In consideration and by reason of the above, and in every respect whatsoever, I also remise, relieve, release and discharge by said attorney, John F. X. Ries, his heirs, executors and administrators, from any and all mistakes of every kind and nature whatsoever, and for all and any -shortages of money -by reason of the above. I also, in consideration and by reason of the above, in every respect whatsoever, bind myself, my heirs, executors and administrators.”

This was duty acknowledged, and on April 26th, 1924, she made and executed a will, in which, after giving her daughter and grandchildren each a small amount, a Mrs. McGilly, with whom she was living, the sum of $5,000, the Babcock the sum of $10,000, she devised and bequeathed all the residue of her estate to Ries.

On August 19th, 1924, she, by deed of assignment bearing that date, assigned for the consideration of one dollar and other good and valuable consideration to Ries absolutely, five several bonds and mortgages aggregating $62,500. This instrument was duly acknowledged and recorded.

On the same day she conveyed to Ries all the real estate of which she was seized, and assigned to him the same five bonds and mortgages.

In this latter conveyance it was stated:

“Whereas, The grantor is seized and possessed of the real estate and personal property hereinafter described and mentioned, situate in the city of Atlantic City, in the county of Atlantic and State of New Jersey, and in the city and county of Philadelphia and State of Pennsylvania; and
“Whereas, The said grantor, by reason of the ownership and possession of said property, has been heretofore vexed, harassed and annoyed, and is threatened to be hereafter further vexed, harassed and annoyed, by her children and grandchildren seeking to obtain and deprive her of the control thereof and of her person; and
“Whereas, It is the intention of the said grantor by this present , indenture to give, grant, sell, convey and assign, transfer, set over and confirm unto the said grantee, his heirs, executors, administra11 tors and assigns, all the estate, right, title and interest, property, claim and demand of every kind and nature whatsoever, either at law or in equity, whether vested or expectant, and all and every part thereof, in and to any and all real estate and personal property of which the said grantor is now, or may hereafter be, seized, possessed or entitled.
“To have, hold, receive and take all the real estate and personal property aforesaid, the hereditaments and premises hereby granted, assigned, conveyed and transferred, or mentioned and intended so to be, with the appurtenances, unto the said grantee, his heirs, executors, administrators and assigns forever, reserving and excepting, nevertheless, thereout and therefrom, and from the operation of this indenture, unto the said grantor the use'and enjoyment of the whole net income arising or accruing from the real and personal property hereby granted, conveyed and assigned, for and during the term of the natural life of her, the said grantor, and this indenture is delivered and accepted upon the express stipulation and undertaking that the said grantee shall and will [1] sell and convey, in fee-simple, the real estate above described and hereby conveyed, at such times, foi ‘ such price and upon such terms or conditions as to payment as he-’ may aee fit, and that until the same be sold he will rent the same and collect and receive the rents, issues and profits thereof; [2] that he will, from the proceeds of said personal property and real estate when sold, or from the rents, issues, profits and income thereof until sold, first fully pay and discharge the just debts now due from, •and hereafter to be incurred by, the said grantor, and will invest and keep invested the balance thereof, then remaining either in mortgages on real estate or such other good securities as he may-select and approve, and collect and receive the income therefrom; [3] that he will apply the said rents, issues and profits, and the said income arising from such investments, or so much thereof as may be necessary and proper for the purpose, from time to time, and as often and in such manner as he, in his discretion, may think right and best, or the said grantor may reasonably require, to the comfortable support of her, ' the said grantor, during the whole period of the natural life of her, the said grantor, so that neither the said rents, issues and profits, interest or income, or any part thereof, shall or may, at any time hereafter, be liable or subject in any manner whatever to the control, engagements, debts or liabilities of her, the said grantor; and [4] that he will, as soon as conveniently may be after the death of the said grantor, from any unexpended interest or income then remaining in his hands, or from the principal of said investments, or any of them, or from the proceeds of such sales, or any of them, pay the expenses of the decent and proper interment of her, the said grantor; and that [5] thereafter and thenceforth forever, as well the said principal of said investments, and the interest and income thereof, as the said rents, issues and profits of the real estate then remaining and being unsold, and all unexpended income, interest, renta, issues and profits in his hands then remaining shall become and be discharged and released, and the said grantee shall thereafter have, and hold the same for his own use and benefit, free and discharged of the charge thereon hereby imposed or intended to be imposed.”

Prior to the execution of this latter paper, Ries sent Mrs. Rhodes to the office of Charles C. Babcock, a eounselor-at-law, with offices in the same building as Ries, and who is not to be confused in any way with the defendant Babcock. Babcock was requested to explain the effect of these papers to her. This he did. Mr. Ries had his stenographer present to take stenographically the interview. Mr. Babcock declined to have the papers executed before him and to take her acknowledgment thereto. Mrs. Rhodes then returned to Ries’ office and there met Elwood C. Weeks, also a counselor--at-law. Weeks and Ries occupy adjoining offices, each using the library and entrance rooms in common. Weeks also explained to her the effect of the papers (this interview also being taken stenographically by the same stenographer). Weeks then being satisfied, caused or permitted Mrs. Rhodes to execute the papers, took her acknowledgment and affixed his certificate therof thereto.

This remained the situation until,the month of December,-1924, or January, 1925, at which time Mrs. Rhodes called upon Judge Clarence L. Cole, of the firm of Cole- & Cole, members of the bar, and - interviewed him concerning the legal status of her property.

Judge Cole wrote Mr. Ries a letter, asking him for a statement of his relations with Mrs. Rhodes, and whether he was willing to re-transfer to' her any property and securities which he might be holding.

To this letter and demand Ries made no reply. He, however, immediately called upon Mrs. Rhodes, who shortly thereafter, in company with Babcock, came to Ries’ office. She there signed a letter discharging Cole, and then called at Cole’s office, delivered the letter (in Judge Cole’s absence), and left there a sum of money as a fee for services rendered. This money was furnished and advanced by Babcock.

She evidently thereafter again called upon Judge Cole, as the bill was filed on April 28th, 1925.

The complainant was incoherent upon the witness-stand, and clearly evidenced that she was at that time very weak mentally.

She was, withoxit doubt, highly incensed at her daughter because she had instituted the proceedings in lunacy, and at her grandchildren because she believed their conduct toward her was improper. She had no one else whom she felt had any claims upon her. She felt most kindly toward Ries, whom she believed had saved her from incarceration in an insane asylum, and had saved to her the custody and control of her property.

All of the papers, executed by her had either been prepared by Ries or by his suggestion.

These papers evidence the steps by which Ries gained the control of the property—

(1) The power of attorney to Eies and Babcock dated December 15th, 1923. This was made irrevocable, to last for fifty years, a period greatly longer than her expectancy of life. A, commission of five per cent, on all moneys handled, and still such further “proper consideration” should be paid to them, and Eies was to have custody of all papers of title, &c.

(2) The order permitting her to withdraw money to finance her defense in the lunacy proceedings.

(3) The compensation agreement, dated April 17th, 1924, whereby she agreed to pay to Eies, approximately, $55,000 for his services in her behalf.

(4) The execution of the will on April 26th, 1924.

(5) The absolute assignment to Eies of the five mortgages, dated August 19th, 1924.

(6) The conveyance to Eies of all her real estate and the said five mortgages, subject to the reservation of such part of the net income “which she may reasonably require for her comfortable support during her life, and upon her death the principal and income remaining unexpended to become Eies’ absolutely.”

The defendants rely to a great extent upon Sherman v. Gleason, 3 N. J. Mis. R. 708, decided by Vice-Chancellor Buchanan on July 7th, 1925, shortly before the hearing in this case.

As in the case at bar, “the bill was filed by the complainant, a widow aged seventy-six or seventj^-seven years, for decree of reconveyance to her of premises conveyed by her to defendant, on the ground that the conveyance was without consideration, was improvident and stripped her of most of her property, was,made by her without fully understanding the nature and effect of the transaction and without her having independent advice, and was the result of undue influence. The deed reserved a life estate to complainant.” In the case at bar the conveyance was made, “excepting, nevertheless, thereout and therefrom, and from the operation of this indenture, unto the said grantor the use and enjoyment of the whole net income arising or accruing from the real and personal property thereby granted and conveyed, for and during the term of the natural life of her, the said grantor,” and the indenture was delivered and accepted upon the express stiuplation and undertaking “that the said grantee shall and will [inter alia] collect the rents, issues, pay the debts, and [3] he will apply the said rents, issues and profits, and the said income arising from such investments or so much thereof as may be necessary and proper for the purpose from time to time, and as, after and in such manner as he, in his direction, may think right and best, or the said grantor may reasonably require, to the comfortable support of her the said grantor, so that neither the said rents, issues and profits, interest or income, or any part thereof, shall or may, at any time hereafter, be liable or subject in any manner whatever to the control, engagements, debts or liabilities of her the said grantor.” Then follows a covenant for her proper interment — then the principal and unexpended income shall become discharged and released and become his absolutely.

The rule is: “In all transactions between parties.occupying relation, whether legal, natural or conventional in their origin, in which confidence is naturally inspired, or, in fact, reasonably exists, the burden of proof is thrown upon the person in whom the confidence is reposed, and who has acquired an advantage, to show affirmatively not only that no deception was practiced therein, no undue influence used, and that all was fair, open and voluntary, but that it was well understood.” Hall v. Otterson, 52 N. J. Eq. 522 (at p. 528); S. C. on appeal, 53 N. J. Eq. 695. “Where parties hold positions in which one is more or less dependent upon the other, courts of equity hold that the weaker party must be protected, and they set aside his gifts if he had not proper advice, independently of the other.” Haydock v. Haydock, 34. N. J. Eq. 570. “The rule to¡ be gathered from the English and American cases is that the burden of proof is cast upon the donee to establish that the donor fully appreciated what he was doing, or, at all events, in the doing had the benefit of disinterested and competent advice.” Coffey v. Sullivan, 63 N. J. Eq. 302; Slack v. Rees, 66 N. J. Eq. 447.

This case at bar clearly comes within this rule, and is not within the findings of Vice-Chancellor Buchanan in Sherman v. Gleason, supra, who said: “Complainant was not dependent on defendant; they did not live together; he did not occupy a dominant position toward her; her mental capacity and her powers of volition and determination were strong and unimpaired, and, moreover, she did not strip herself of her means of support.”

Mr. Charles C. Babcock, to whom complainant was sent for “independent advice,” declined to have the instrument executed before him, and the great care in having a complete record made of the interview between the complainant and Mr. Babcock, and between the complainant and Mr. Weeks, indicates very plainly that the defendant understood this rule, its application to the intended conveyance — hence, the attempt to secure the evidence necessary to prove such independent advice.

It is impossible to find proof in the evidence produced that this inerview with Mr. Weeks was “well understood” by the complainant, even if it rose to the dignity of disinterested and competent advice, a fact which I am unable to find.

In the case of Condit v. Blackwell, 22 N. J. Eq. 481 (at p. 485), Mr. Justice Yan Syckel, speaking for the court of errors and appeals, said: “The confidence which the relation of attorney and client begets between the parties, and the influence which the attorney thereby acquires, has led to a very close scrutiny of all transactions between them, and the •law often interposes to set aside contracts which, between other persons, would be subject to no exception. In such cases, the burden of establishing the perfect fairness, adequacy and equity of the negotiation is thrown upon the attorney, and, in the absence of such proof, courts ef equity treat the case as one of constructive fraud.”

“In such transactions the court leans most strongly against the attorney, who, while acting as such, has business relations with his client on his own account.” Perkins v. Deal Beach Realty Co., 92 N. J. Eq. 526 (at p. 533).

These two assignments and the conveyance of the real estate must be set aside.

It is, of course, unnecessary to now consider the validity of the will.

Each successive step in the transfer to Ries was divesting Mrs. Rhodes of her control to and title of her property to a greater extent than the preceding one, and in each case Ries was obtaining a greater control and title to more property, until the final culmination, when he received all her property subject only to such payments as she should reasonably require.

The oral argument of the solicitor of the complainant at the time of the hearing was leveled almost entirely at the compensation agreement. There can be no doubt but that this document executed by the complainant was to be in payment and as compensation to her attorney, who it must be said had rendered very valuable services, which had resulted favorably to her, and had permitted her to retain the control of her liberty and of her property.

The case in this respect, therefore, involves the additional question as to how far the validity of this agreement of April 17th, 1924, is affected by the fact that it was providing payment by the client of compensation to her attorney.

Einding that the absolute assignment of the mortgages, bearing date August 19th, 1924, and the conveyance of the same date, as well as the power of attorney of December 15th, 1923, must be set aside, what effect should be placed upon the compensation agreement?

The rule is'that the burden of establishing the fairness, adequacy and equity of the negotiations rests upon the attorney, and the security or conveyance taken will only be allowed to stand as security for the amount shown to be fully due. 1 Story Eq. § 311; Brown v. Bulkey, 14 N. J. Eq. 451; Condit v. Blackwell, 22 N. J. Eq. 481; Porter v. Bergen, 54 N. J. Eq. 405; Wagner v. Phillips, 78 N. J. Eq. 33.

A reference will be made to a master to ascertain the amount the defendant should receive as compensation, and to state an account of the moneys received and disbursed by Ries, and the conveyances will be allowed to stand as security until the amount is ascertained.

Upon the payment'of the amount, if any, due Ries, the conveyances will be set aside.


text:
    Hiem Jacob, complainant, v. Alice V. McDuell, defendant.
    [Determined July 16th, 1926.]
    1. Except where an agent’s authority is coupled with an interest, or where the authority is given as part of a security or is necessary to effectuate a security, the principal has absolute power to revoke an agency at any time at his mere option either with or without reason, and thereby terminate the agent’s power and authority to bind the principal by any further acts. This power is not at all effected by the fact- that there is an express or implied contract between the agent and principal that such contract is irrevocable.
    2. An auctioneer whose authority is revoked before sale, may recover what he has properly expended, and, therefore, has no interest coupled with his authority.
    On bill for specific performance. On final hearing.

      Mr. Joseph B. Pershie, for the complainant.

      Messrs. Babcoch & Champion, for the defendant.
   Ingersoll, V. C.

The defendant is the owner of certain premises known as No. 2627 Pacific avenue, in Atlantic City.

On the 21st day of September, 1925, she executed a paper-writing in the following words:

“I Hereby Authorize The Brand-Pittinos Syndicate Auctioneers Real Estate Department
To sell for twenty-five thousand...........................dollars Premises 2627 Pacific Ave....................................... Subject to 1st of $20,000.00/ — five years.......................... and in consideration of your efforts to effect a sale for ’the herein-described property, the undersigned grants you the sole, exclusive and irrevocable right until the 29th day of October, 1925, to offer said property for sale at auction according to the terms and conditions as set out on other side and -made part thereof, and agree to execute all necessary papers, deeds, mortgages, etc., to effect a conveyance.
Brand-Pittinos Syndicate, Real Estate Department, reserves the right to refuse this listing if, in the opinion of its Appraisal Committee, the price is excessive.
Sept. 21 — 1925.
Owner Alice V. McDuell •
Owner
Address 2627 Pacific Ave.”

On the reverse of said 'writing there was á “Notice to Sellers,” the only portion of which necessary to recite is: “Property listed for sale at auction cannot be withdrawn for any reason or be sold at private sale during the life of this agreement.” "

Prior to the expiration of the time fixed in said agreement, and prior to the sale of said premises, the defendant called on the Brand-Pittinos Syndicate and revoked all authority given by said agreement, and thereafter also caused notice to be given said syndicate of its revocation, and caused a written notice of revocation to be served on October 37th, 1935.

Notwithstanding the notices, the syndicate proceeded on the 39th day of October, 1935, to expose said premises at public sale, and the same was struck off to the highest bidder, Hiem Jacob, one of the complainants in this cause, who bid $35,000 therefor.

The said Hiem Jacob caused to be signed a page of the catalogue of the sale of that day, which reads as follows:

“No. 150
Catalogue Page 11
Two-Story Brick Apartment House 2627 Pacific Avenue Cor. Spray Ave., 20 x 75
All that certain lot, tract or parcel of land and premises situate, lying and being in tbe city of Atlantic City, county of Atlantic and State of New Jersey.
Beginning at the intersection of the northerly line of Pacific avenue and the westerly line of Spray avenue and extending thence (1) northwardly, parallel with Spray avenue, seventy-five feet; thence
(2) westwardly, parallel with Pacific avenue, twenty feet; thence
(3) southwardly, parallel with Spray avenue, in part through a partition or party wall dividing the premises 2627 and 2629 Pacific avenue, seventy-five feet; thence (4) eastwardly, in and along the said northerly line of Pacific avenue, twenty feet to the place of beginning.
The improvements consist of a magnificent two-story brick apartment-house located within a half block of the Ritz-Carlton Hotel. An ideal location, unobstructed ocean view. There are two apartments of six rooms and bath each, with individual hot water heat, gas and electricity.
Subject to a first mortgage of 20,000 for five years.
Possession of the first floor apartment at time of settlement, now being occupied by the owner. Possession of the second floor apartment subject to a lease expiring April 7, 192.6.
$1,000 to be paid at time of sale.
Sold subject to the terms of sale as printed on first page of catalogue for twenty-five thousand dollars.
Marcus Bacharach, Agt. for Hiem Jacob.”

At the same time the syndicate gave to Jacob a receipt for the deposit made by him, as follows:

“This Receipt Must be Returned in Settlement The Brand-Pittinos Syndicate 1527-29-31 Boardwalk Real Estate Department
No. 250 Atlantic City, N. J., Oct. 29th, 1925.
Received of Marcus Bacharach, Agent for Hiem Jacob et al. one' thousand...............................................dollars being the deposit paid at the Sale of Property No. 2627 Pacific Ave.
Bids and deposits are accepted only subject to the terms 'of sale.
Brand-Pittinos Syndicate, Auctioneers
Real Estate Department
Agents for Seller
Per H. C. Krauskopf.
This receipt must be returned in settlement,”

endorsed as follows:

“This receipt must be retained and surrendered at tbe settlement to the seller on account of the purchase money.
Tt is not transferrable without the written consent of the seller and after notice has been given to the auctioneers and the bid transferred on the sales book.
The purchase has been made in conformity with terms of sale, as printed in the catalogue and noted in the sales book, previous to signing.
Bkand-Pittinos Syndicate Real Estate Department 1527-29-31 Boardwalk Marine 2100.”

The terms of sale on the first page of said catalogue referred to, inter alia, reads:

“Purchasers agree that they will comply with the terms of sale and make settlement within 30 days from date of sale, or within the time specified by the auctioneer, and purchaser will at once give notice in writing to the auctioneer of the delay and the cause thereof, and if any harm comes to the auctioneer because of any failure to give such notice it is agreed that the auctioneer may reimburse himself for any loss out of the deposit money, returning the balance, if any, to the purchaser.
In case of failure of title or area in any particular, in consequence of which the sale is not consummated, or in case the seller shall reserve the sale on account of the discovery of liens, assessments, restriction Or claims, subject to which the buyer is unwilling to take title, the deposit money shall be returned and there shall be no further liability on the part of either the auctioneers or their principal.”

Also a “Notice to Sellers” in substantially the form on the reverse of the original authorization or agreement.

At the expiration of the thirty days the complainant with others went to the title company, prepared to make settlement, and upon ascertaining that the defendant had made no arrangements to make settlement, called upon her at her home and rendered themselves as prepared to make settlement. Mrs. McDuell refused to deliver a deed, and the bill was filed praying specific performance.

The answer set forth three defenses—

1. The statute of frauds.

2. That the agreement had been revoked prior to 'the alleged sale.

3. That the syndicate at the time of the alleged sale had no legal authority to make anj'- sale of defendant’s property, or to make any agreements with any purchaser or purchasers thereof, or to bind the defendant in any way.

The second and third defenses may be considered as one in so far as the claim of revocation is to be considered.

The complainant claims that the contract was irrevocable, and, therefore, the attempted revocations were entirely ineffectual.

The law as to principals and agents is:

“Subject only to the exception that where the agent’s, authority is coupled with an interest, or where the authority is given as part of a security or is necessary to effectuate a security * * * the principal has absolute power to revoke an agency at any time at his mere option, either with or without reason, and thereby terminate the agent’s power and authority to bind the principal by any further acts. This power is not at all affected by the fact that there is an express or implied contract between the agent and the principal, that such agency is irrevocable.” 2 C. J. 527, citing Walker v. John Hancock Insurance Co., 80 N. J. Law 342, 344; 31 Cyc. 1294; Elwell v. Coon, 46 Atl. Rep. 580.

Under the heading of “Auctioneers” corpus juris also states: “An authority given to an auctioneer to sell may be revoked by the vendor at any time before the sale, unless it is coupled with an interest in the subject-matter.” 6 C. J. 827.

The complainants insist that the auctioneers had an interest in the contract, because they had expended money in advertising, &c.

There appears in this case no interest that would prevent revocation, as “an auctioneer whose authority is revoked before sale may recover what he has properly expended.” 6 C. J. 840.

Einding that the contract was revoked prior to the sale, the receipt signed by the representative of the syndicate, after such revocation, is not binding upon the defendant.

The defendant having pleaded the statute of frauds, and I having found that the memorandum was not “signed by the party to be .charged therewith or some other person by * * * her lawfully authorized,” the bill must be dismissed.


text:
    Elizabeth Howells, complainant, v. Ghertine Ripperger Martin and Madaline Ripperger Fraser, defendants.
    [Determined July 22d, 1926.]
    1. A compact between husband and wife to dispose of their combined estates, the terms of which find expression in their mutual wills, will be enforced in equity.
    2. The testimony in this ease shows that the making of the mutual wills was the result of a contract between the husband and wife, and though the wills have not been found, the contract will be enforced in equity.
    On bill, &c. On final hearing.

      Mr, John G. Reed and Mr. Emerson_ L. Richards, for the complainant.

      Mr. William Charlton and Mr. Clarence L. Cole, Sr., for the defendants.
   Ingersoll, V. C.

The bill alleges that Robert Daley and Ellen Montgomery Daley were husband and wife; that prior to the 38th day of December, 1933, they agreed to make mutual wills, each devising to the other all his or her property; that on December 28th, 1922, each made a will devising and bequeathing all property, real and personal, to the other; that the wills were handed to the said Ellen Montgomery Daley for safekeeping; that on the 4th day of September, 1924, the said Ellen Montgomery Daley died, and that diligent search has been made for said wills and that neither has been found; that no new will or revocation of the will executed by said Ellen Montgomery Daley has been discovered.

The defendants, Ghertine Ripperger Martin and Madaline Ripperger Fraser, are daughters of said Ellen Montgomery Daley, and that they claim to be entitled to the real and personal property of which the said Ellen Montgomery Daley died seized, there having been no children born of the marriage of Robert Daley and the said Ellen Montgomery Daley.

Upon petition alleging the said Ghertine.Ripperger Martin to have been appointed administratrix of the estate of Ellen Montgomery Daley, she as administratrix of said estate was admitted as a party defendant, and has answered.

The prayer of the bill is:

“2. That a writ of injunction issue against the said defendant Ghertine Ripperger Martin, her servants and agents, commanding them to refrain and desist from selling or exposing to sale any of the goods and chattels herein mentioned and referred to.

“3. That complainant have such other and further relief as shall be equitable and just.”

That after the death of Mrs. Daley, Daley, for the expressed consideration of one dollar in each, made two assignments to the complainant, one of the real estate and the other of the personal property of which the said Ellen Montgomery died seized.

The wills were drawn by William T. Leek, a scrivener, and executed by Mr. and Mrs. Daley in the presence of Leek and one Andrew P. Johnson.

■ Mr. Johnson testified that he was present at the execution of the wills; that Mr. Leek read the papers over, and that “the substance of it was that in the event of Mr. Daley’s death the property should go to Mrs. Daley — in the event of Mrs. Daley’s death the property should go to Mr. Daley.”

Mr. Leek testified that upon the instruction of Mr. and Mrs. Daley he drafted the wills in question, and that they were in due form, executed with himself as witness. That each will directed the payment of funeral expenses and just debts, and that Mrs. Daley was named as executor of Daley’s will and he of hers.

Mrs. Howell’s testimony as to the will was only that Mrs. Daley had told her she had made a will and everything was t'o be Bob’s, &c.

Vice-Chancellor Backes, in Tooker v. Vreeland, 92 N. J. Eq. 340 (on p. 342), said:

“The law is well settled, and the proposition is not questioned, that if Mr. and Mrs. Tooker made a compact to dispose of their combined estates, the terms of which find expression in the mutual wills, the contract will be enforced in equity according to its established practice. Equity will not interfere with the probate of the later will, made in violation of the contract, but will enforce the contract against the estate of the survivor by impressing a trust upon the assets. There is a wealth of authority for the relief and the remedy. Many of the cases are gathered by Vice-Chancellor Garrison in Deseumeur v. Rondel, 76 N. J. Eq. 394. The early English cases are Dufour v. Pereira, 1 Dick. 419; 2 Harg. Jr. Arg. 304; Lord Walpole v. Lord Orford, 3 Ves. Jr. 402. See, also, for collection of cases Stevens v. Myers, 91 Org. 114; 177 Pac. Rep. 37. An interesting discussion of the subject is to be found in Edson v. Parsons, 155 N. Y. 555; see, also, Rastetter v. Hoenninger, 136 N. Y. Supp. 961; Herman v. Ludwig, 174 N. Y. Supp. 469. An early case in this state on the subject of enforcing contracts to bequeath is Johnson v. Hubbell, 10 N. J. Eq. 332, and the leading ease is Duvale v. Duvale, 54 N. J. Eq. 581; 56 N. J. Eq. 375; see, also, Lawrence v. Prosser, 88 N. J. Eq. 43.

“That such a contract be enforceable it must be, like all other contracts specifically enforceable in equity, founded upon a valid consideration, certain and defined, equal and fair and sufficiently proven-equalities to which Lord Lough-borough said in Lord Walpole v. Lord Orford, supra, he knew no limitations.

“The mutual wills do not on their face purport to be contractual. Their reciprocal provisions indicate that they were the result of an understanding between Mr. and Mrs. Tooker, but an understanding does not necessarily spell contract. The vital question is, Was it agreed by them that the wills should remain irrevocable after the death of either ? Eor the solution of this we must look to the extraneous testimony, keeping in mind that, to establish an agreement, the proofs must be clear and convincing. The contract may be found in an express promise, or inferred, as' a conclusion of fact, from the circumstances surrounding the parties.”

An examination of the testimony is convincing that the making of the mutual wills Avas the result of a contract between them.

James Daley, Jr., testifies that Mrs. Daley told him about the middle of January, 1923, “that her and Uncle Bob had made an agreement that upon the death of either one of them that if she died she was to will Uncle Bob her property and possessions, and if he died he was to leave her his property and possessions, and that is all I know of the ease. At the time it didn’t appear to me as anything important.”

The testimony of Henry H. McAlees is that in the early spring of 1923 “Mrs. Daley, in the presence of Mr. Daley and myself, said that they, Mr. Daley and Mrs. Daley, had mutually made an agreement whereby at the time of death anything ever happened to them, automatically the wills would he transferred to one another, otherwise a mutual agreement between Mrs. and Mr. Daley.”

Ella Adams, an ignorant colored maid, gave similar testimony that, in May, 1923, Mrs. Daley said: “The agreement was all fixed and, she had made all her will to Mr. Daley what was left, what she had was made to Mr. Daley, anything would happen- to her, and if Mr. Daley would die, then she would get what was, you know, what was left for her.”

This woman became very much confused upon cross-examination as to the date this statement was made to her, stating that it was in May, 1922. She at all times insisted, however, that the conversation was after the marriage of Mr. and Mrs. Daley (which took place June 8th, 1922).

John Gaither states that in January, 1923, Mrs. Daley said: “I told them that they would freeze to death down there, was cold in this house you know, only had a gas stove, and Mrs. Daley said: ‘Well, if we do, we have made our wills and made an agreement and made our wills, and we have agreed to give each other at the time of death all that we own.’ ” She said: “If I die first Mr. Daley gets all of mine, and if he dies first I get all that he owns.”

Mr. Howells testified that Mrs. Daley told him that “we make [made] our wills out for each other and you ought to do the same.” ,

Mrs. Baines .testified that in September, 1923, “Mrs. Daley told me that she had no will, and that she hoped whatever she had Mr. Daley wouldn’t ever have anything, that she hoped that her children would get what she had.”

This was after the wills were executed, and can bear one of three interpretations:

1. That Mrs. Daley had destroyed previous thereto her will.

2. That Mrs. Daley was misleading Mrs. Baines; or

3. That Mrs. Baines is mistaken.

Neither interpretation materially assist in the determination of the question being considered.

Mrs. Wray’s testimony is that, in 1924, Mrs. Daley said: “He is all the time nagging at me to make a will, and if it wasn’t for some of the neighbors he would have killed me in the month of April. He had a lawyer, Reed, and some other witness” — I forget their names — “and because I wouldn’t sign papers for him' he beat me black and blue, but I screamed so loud some of the neighbors heard me and came to my rescue.”

Her story cannot be accepted as true. The wills were made in 1922, and, manifestly, he could not be “nagging her about making a well.”

This woman’s testimony was not given in a convincing manner, and did not impress me as being a truthful state-, ment.

Nellie Lockman testified that in 1922, directly after they were married, Mrs. Daley said: “Bob, don’t bother me about making a will. I will never make no will way you mistreat me; how you figure I make a will to you.”

If this testimony is true, Mrs. Daley evidently changed her mind,.as the wills were made in December, 1922.

It is-very evident that both Mr. and Mrs. Daley were accustomed to drinking to excess, that she was often under the influence of liquor, and that he was intoxicated, perhaps, to as great an extent.

It is also evident that the daughters, the present defendants, had little, if any, affection for their mother, and the present excuse that they were prevented by Dalfey from seeing their mother has little weight, as for several years prior to the mother’s marriage to Daley they had made no attempt to see her, one living within a short distance from Atlantic City (in Philadelphia).

I am convinced that Mr. and Mrs. Daley made a contract to dispose of their combined estates, the terms of which were expressed in the mutual wills, and that the contract can and should be enforced.

Having so found, it is unnecessary to determine whether Mrs. Daley destroyed her will, or whether it was stolen from the place in which it was kept.

At the hearing I permitted the complainant as well as Daley to testify,, but, quoting 'Vice-Chancellor Emery, in Clawson v. Brewer, 67 N. J. Eq. 201 (at p. 208) : “In reaching the conclusion that the contract to devise the property was made by the testatrix, I have not relied on the evidence of the complainant as to his transactions with her. Her executors are parties to the suit, and they are necessary parties.' Kempton v. Bartine (Court of Errors and Appeals, 1899), 60 N. J. Eq. 411. Complainant’s evidence as to transactions with Mrs. Clawson is therefore inadmissible under the statute relating to evidence.” P. L. 1900 p. 363 § 4.

Without deciding whether Daley’s testimony is or is not admissible, I excluded its consideration, as the assignment to the complainant was made without consideration, and it is quite probable his testimony should also be found inadmissible.

A decree will be advised in accordance with these conclusions.


text:
    The Township Committee of the Township of Lower Penns Neck, in the County of Salem, complainant, v. Samuel Ecret, defendant.
    [Decided September 16th, 1926.]
    1. Where a farm was leased to a tenant who agreed to keep the premises “in good farm-like manner,” and that the farm “shall be in as good condition” at the end of the lease as at the beginning, the building of a bank without sluices on the farm along the edge of tidal waters is not a violation of this condition.

      2. Nor is a road laid out across the farm a violation of the condition, as it is not irreparable damage, or waste, even if such road leads to a real estate development.
    3. It is not necessary to determine if such road may be a deception and fraud upon the public, as there is no proof before the court that anyone has been deceived, or that an attempt has been made to deceive anyone.
    On bill for injunction. On final hearing.

      Mr. F. Newlin Acton, for the complainant.

      Mr. Thomas G. Hilliard and Mr. Henry B. Ware, for the defendant.
   Ingersoll, V. C.

By a will which was probated May 21st, 1768, Francis Miles gave and' devised the land and premises described in the bill to the township* of Lower Penns Feck, in the county of Salem, the income thereof to be appropriated toward the education and schooling of the poor children of said township. Since said time the premises have been leased by the township to various tenants.

.On March 25th, 1924, the township committee entered into* an agreement with the defendant, Samuel Ecret, wherein they leased said premises to Ecret for the years 1925, 1926, 1927 and 1928, at a rental therein named.

In said agreement was the following clause:

“The party of the second part agrees to keep the premises in good farm-like manner, and upon the expiration of this agreement the farm shall be iiLas good condition as at the beginning.”

This farm is practically a parallelogram extending from the main road leading from Salem to* Pennsville, westwardly to the Delaware river.

At one time there existed along the river edge a bank with sluices so built and arranged to exclude the tidal waters from flowing over and upon the meadows along that portion of the farm. At the time of the lease o*r agreement, this bank did not exist, it having previously been permitted to* be washed away.

Since the occupancy of said Ecret, he has caused or permitted to be erected a hank without sluices, along the river’s edge, approximately, but not exactly, in the location of the old bank, in some place, at least, twenty or thirty feet from the old location. This bank was evidently built not for the sole purpose of excluding the tidal waters, but for use as a roadway, it having been built much wider than the usual bank, and of sufficient width to permit the passing of automobiles.

After consideration, I find no reason to change my views as expressed at the hearing, i. e., that there was no proof of damage in the building of this bank. I so find.

In addition to the building of the bank, Ecret caused or permitted a road to be laid out across the farm, along the meadow edge of the upland, in some places along and across the tillable land, at others along the meadow.

This roadway was a passageway over the farm, no gravel or other surface materials (other than the soil over which it passed) was used, and it can be plowed over and replaced with no substantial difficulty.

It is evident that no irreparable damage has been done to the farm, and that the use of that portion of the farm as a roadway is not a waste.

There is, however, one further question to be considered.

Upon each side of the farm there are real estate developments, and no highway exists leading from one to the other. The main highway above referred to being the only available passage from one to the other.

The contention of the complainant is, that these roads, one upon the river bank and the other along the meadow edge, connects with the streets of the real estate developments, the latter by way of a bridge erected across a creek along the side of the farm in question, that persons who buy lots on either side of this farm may, and probably will do so, in the belief that they have the right to use these roads for the purpose of access to their prospective homes, and that by reason thereof the defendant is fraudulently deceiving the public.

It is unnecessary to determine whether such a use of the land would constitute a deception and fraud upon the public sufficient to justify this court in granting relief, as there is no proof that anyone has been deceived or that any attempt has been made to so deceive. Eor is there any proof that said roads are being generally used by the public, although there is no doubt that they could be so used.

The bill must be dismissed.


author: Engersoll, V. C.

text:
    Harry Greenberg, complainant, v. Abraham Dessen et al., defendants.
    [Determined July 23d, 1926.]
    Where a notary neglected to fill in the venue in an acknowledgment which he had taken to a deed, he cannot supply the deficiency after the deed has passed from his control, but where the grantors 'have received full consideration for the property, but refuse to execute another deed because of a dispute between themselves as to the division of the consideration, the prayer of the bill that the defendants be decreed to have no interest in the described premises, and that the estate of the complainant therein be confirmed and established as a good and valuable estate in fee-simple, will be granted.
    On bill, &c. On final hearing.

      Messrs. Blumberg & Blumberg, for the complainant.

      Mr. Paul M. Salsburg, for the defendants.
   Engersoll, V. C.

.On December 33d, 1933, a deed was executed by Abraham D.essen, Benny Cohen and Morris Rutberg, trading as Penn Coal Company, and Ida Dessen, wife of Abraham Dessen; Lena Cohen, wife of Benny Cohen, and Minnie Rutberg,. wife of Morris Rutberg, to one Harry Greenberg, conveying for a valuable consideration an undivided one-fourth interest in certain lands and premises in Atlantic City. . .

This deed was signed by all the grantors, and a certificate of acknowledgment attached thereto by Maurice M. Dessen, a notary public of the commonwealth of Pennsylvania,-certifying—

“that on this 23rd day of December in the year of o-ur Lord one thousand nine hundred and twenty-two, before me, a notary public for the commonwealth of Pennsylvania, residing in tibe city of Philadelphia, personally appeared Abraham Dessen and Ida, his wife; Benny Cohen and Lena, his wife; Morris Rutberg and Minnie, his wife, who, I am satisfied are the grantors mentioned in the above deed or conveyance, and I having first made known to them the contents thereof they acknowledged that they signed, sealed and delivered the same as their voluntary act and deed. All of which is hereby certified.”

Attached thereto was the certificate of the prothonotary of the courts of common pleas of the county of Philadelphia and State of Pennsylvania in due form in conformity with the provisions of section 23 of an act respecting conveyances (Revision of 1898). 2 Comp. Stat. p. 1543; as amended, 1 Cum. Supp. Stab. p. 629.

The notary failed to make statement of the venue — city of Philadelphia and State of Pennsylvania.

The deed was presented and duly recorded in the clerk’s office of Atlantic county on the 12th day of January, 1923, in book No. 696 of deeds, pages 455, &e.

The original bill alleges that the deed was lost, and prays that the defendants be required to re-execute, and that the alleged mistake be corrected.

At the hearing of the cause the defendants produced said recorded deed, it with a blank deed in like form having been previously mailed to them. An amended bill was.then filed praying “that defendants be decreed to have no right, title, interest or estate in above premises, and the estate of complainant therein be confirmed and established as a good and valuable estate in fee-simple.”

Abraham Dessen and his wife have executed the new deed. Benny Cohen and Lena, his wife; Morris Rutberg and Minnie, his wife, refuse to do so.

The complainant has paid the full consideration, and the refusal of the four grantors to execute the new deed arises because of a dispute between them and Dessen as to the distribution of the consideration.

The defendants Cohens and Rutbergs insist that Minnie Rutberg and Lena Cohen never acknowledged said deed, and that the certificate of the notary in this respect is false.

If this he true, the deed is, so far as they are concerned, invalid. Section 39, “Act respecting conveyances.” Supi-a.

It was suggested that the notary could correct the omission in his certificate by filling in the venue. Not so.

The notary has certified the acknowledgment to the deed, and it has passed from his custody, his powers'are exhausted, and, in the absence of statutory authority, he cannot thereafter correct the certificate, or make a new one without a re-acknowledgment by the grantor. Potter v. Steer, 95 N. J. Eq. 102.

' The notary, now a member of the bar of Pennsylvania, asserts that the acknowledgment was taken in due form, and details his calls upon the two women. In this he is corroborated, to some extent, at least, by his father, one of the grantors.

I am convinced? that some one or more witnesses are deliberately misstating the facts. This appeared to be so clear to me that I continued the case in order that all proof possible should be presented. This continued hearing did not clarify the situation.

The acknowledgment of these wromen, if taken at all, was taken in Philadelphia, where the notary public was authorized to take such acknowledgment.

A certificate of acknowledgment attached to a deed is only prima facie evidence of its contents, but to establish its untruth and overcome the strong presumption of its integrity the proof must be clear, satisfying and convincing. Potter v. Steer, supra.

Applying this rule, I' am satisfied the complainant is entitled to the relief prayed for.