text:
    Gustav Falk v. The Whitman Cigar Company.
    Under the Corporation act of 1896 (P. L. of 1896 p. 299 ji 68), providing that all the property, rights and privileges of an insolvent corporation shall forthwith vest in the receiver upon his appointment, assessment calls on stockholders are properly made by the receiver under an order from the court.
    On petition of receiver.

      Mr. Edward Q. Keasbey, for the receiver.

      Messrs. Guild & Lum, for the stockholders.
   Stevens, V. C.

The question here raised is one of practice merely. It relates to the manner in which calls should be made upon the stockholders of insolvent corporations which are being wound up under the provisions of the Corporation act of 1896. In looking at the cases it appears that, in some instances, the court itself has made the call (Hood v. McNaughton, 25 426; Sanger v. Upton, 91 U. S. 58; Hawkins v. Glen, 131 U. S. 328, 334), on the ground that the court will do what it is the duty of the company to do, and in others the court has directed the receiver to make it. Scoville v. Thayer, 105 U. S. 146; Barkalow v. Totten, 8 Dick. Ch. Rep. 573. While I think the stockholders would be bound whether it was made in the one way or the other, the latter method of assessment would seem to be the better under the act of 1896. It was long a question of doubt whether, under the former Corporation act, a receiver of an. insolvent corporation was vested with the legal title to the assets of the corporation, or was merely their custodian, with the powers mentioned in the statute. In Willink v. Morris Canal Co., 3 Gr. Ch. 400, in Receiver of State Bank v. First National Bank, 7 Stew. Eq. 456, and in Kirkpatrick v. Corning, 10 Stew. Eq. 59, it was held that the title to the property was not changed, while in Corrigan v. Trenton Delaware Falls Co., 3 Halst. Ch. 489, in Minchin v. Second National Bank, 9 Stew. Eq. 439, 440, and in, Wilkinson v. Rutherford, 20 Vr. 242, the opposite view seems to have been taken.

To settle this question, the act of 1896 (P. L. of 1896 p. 299 § 68), provided as follows:

“All the real and personal property of an insolvent corporation, wheresoever situate, and all its franchises, rights, privileges and effects, shall, upon the appointment of a receiver, forthwith vest in him, and the corporation shall be divested of the title thereto.”

This property and these rights, privileges and franchises are vested in him as receiver, and, in the language of the opinion of the court of errors, in Vanderbilt v. Central Railroad Co., 16 Stew. Eq. 682, are to be held and exercised by him, under the control of the court. One of the rights that might have been exercised by the corporation was the right to make an assessment, and this right, with the others, passed to the receiver as such. The situation, at least under the present statute, seems in all respects to be similar to that which existed under the late Bankrupt act, where, by operation of law, the assignment of the register vested the legal title of the bankrupt in the assignee. Scoville v. Thayer, 105 U. S. 146, a case which arose under that act is, therefore a direct authority for the practice of directing the receiver to make the assessment, and this practice appears to me to harmonize best with the provisions of section 22 of the Corporation act, which provides that the directors shall give thirty days’ notice of the assessment and of the time and place of payment. This notice in the case of insolvent corporations will be given by the receiver’. It is, indeed, a necessary part of the “ call.” Thornp. Corp. §§ 2003, 2004.

In the case in hand the receiver has followed the practice pursued in Scoville v. Thayer. He presented a petition to this court, setting forth the. facts showing the necessity for an assessment. On this petition the court ordered the stockholders to show cause why it should not be made. The order was duly served, and on the day fixed for the hearing, many of the stockholders appeared by counsel. As no good cause was shown against the order, the prayer of the petition will be granted.


source: Caselaw Access Project

author: Grey, V. C.

license: Public Domain

text:
    Edward R. Johnes v. Richard Outwater et al.
    1. The general rule is that on the foreclosure of a trust mortgage, the ■trustee and all the cestas que trust are necessary parties to the bill.
    ■ 2. There are exceptions arising in particular cases in which the court will ■excuse the complainant from the observance of this rule.
    3. Where the bill on its face shows that a trustee and cestuis que trust are necessary parties, but omits to make them parties, the bill is demurrable, unless it shows some sufficient reason in that particular case for not making them parties, or the nature of the case is such that it is apparent that compliance with the rule will result in great expense or hardship to the complainant.
    4. A trust mortgage secured the payment of fifty bonds, of §500 each, and provided that no bondholder should foreclose until the trustee should, on request, have refused or for sixty days neglected to act, and contained a clause that in case the trustee became incapable to act, the holder of §10,000 or more of the bonds might, by a mode pointed out in the mortgage, procure the appointment of a new trustee. The trustee did become incapable. The holder of §12,000 of the bonds filed his bill as sole complainant to foreclose the mortgage, without taking the provided steps to procure a new trustee and without making parties any of the other bondholders, some of whom were known to him. A demurrer to the bill for want of a trustee and the other bondholders as parties sustained.
    On demurrer to bill.
    The bill in this cause shows that it is filed for the foreclosure and sale of certain premises (situated in Morris county) under the provisions of a trust deed or mortgage dated the 1st day of March, 1886, made by the Bloomingdale Graphite Company to the American Loan and Trust Company, a corporation of the State of New York, to secure the payment of fifty bonds, each conditioned for the payment to the bearer of $500 on the 1st day of April, 1906, and for payment of interest in semi-annual payments, on April 1st and October 1st in each year, with further condition that if default should be made in the payment of any half-yearly installments of interest on any of said bonds, the principal might be made due and payable as provided in the mortgage.
    The American Loan and Trust Company accepted the trust and certified the bonds as issued under the mortgage.
    The mortgage provided that if default should be made in the payment of interest according to the tenor thereof, and remain in default for twelve months, then the American Loan and Trust Company, or its successors, could enter on and sequestrate the mortgaged premises to pay the mortgage debt, or could enter and sell them at public auction for that purpose, or the trustee might foreclose.

      The mortgage expressly provided that no bondholder should have any right to take any action or proceeding at law or in equity to foreclose or enforce the mortgage or any provision thereof until the trustee, after formal request and tender of indemnity, should have refused, or for sixty days neglected, to take such action. If interest came due and coupons were presented arid payment of interest demanded, and default in payment should continue for twelve months thereafter, then the principal of all the bonds should, at the election of the trustee, become due, and on requisition signed by the holders of a majority of the bonds, and indemnity to the trustee, it should be the duty of the trustee to proceed to enforce the - rights of the bondholders. If the trustee should resign, be removed as provided by the mortgage, or by any competent court, or become incapable or unfit to act, a successor might be appointed by the mortgagor, with the consent of the holders of a majority of the bonds; and if it became impracticable, after rehsonable exertion, so to appoint a successor in the trust, then the holders of $10,000 of bonds might apply, on thirty days’ notice to the mortgagor, to the supreme court of the State of New York for the appointment of a new trustee. The mortgage was recorded on the 10th day of April, 1886. The American Loan and Trust Company, the trustee-mortgagee, became insolvent, and by a decree made on the 1st of May, 1891, in the supreme court of the State of New York, in proceedings there had, that company • was dissolved and its charter forfeited. The complainant and other bondholders (not alleged to be a majority in interest) applied to the Bloomingdale Graphite Company, requesting it to appoint a new trustee; this the latter company neglected to do.
    On October 14th, 1893, the defendant Richard Outwater recovered a judgment in the New Jersey supreme court against the Bloomingdale Graphite Company, and on the judgment, caused the mortgaged premises to be sold, and on January 4th, 1894, received, by the deed of the sheriff of Morris county, of that date, a, conveyance of the equity of redemption in those premises.

      Of the $25,000, the whole number of bonds issued, the complainant alleges that he is the holder of $12,000, and states that ‘ the remainder of said bonds are owned by a number of persons, many of whom are unknown to your orator.”
    On October 1st,- 1892, and ever since, the Bloomingdale Graphite Company has made default in the payment of the semi-annual installments of interest. It has no other property than the mortgaged premises, and since it has been deprived of these premises by the sheriff’s sale, has not carried on any business.
    The complainant alleges that, without taking any steps to appoint a new trustee-mortgagee, he has the right to elect that the principal sum of the mortgage has come to be due, and to enforce the provisions of the mortgage, for the reason that the appointment of a new trustee under the terms prescribed in the mortgage, would be inconvenient, dilatory and expensive, and claims that he alone may, and he does for himself and other bondholders elect, that the whole $25,000 of bonds secured by the mortgage shall become due and payable, and that the mortgage shall be foreclosed.
    The complainant is the sole complainant in the bill, and he makes defendants in the foreclosure only Richard Outwater, the purchaser of the equity of redemption in the mortgaged premises, and his wife, by reason of her inchoate right of dower therein.
    To this bill the defendant Outwater demurs for want of parties, specifying as his grounds — -first, that the complainant should not be a party; second, that the mortgagee, the American Loan and Trust Company, or its successors or assigns, should be complainant; third, that the mortgagor, the Bloomingdale Graphite Company, should be a party defendant; fourth, that the officers of the graphite company should be made defendants,, and fifth, that there is no equity shown in the bill.

      Mr. Edward A. S. Man, for the complainant.

      Mr. Abraham S. Jackson, for the demurrant.
   Grey, V. C.

The third and fourth grounds of demurrer can be disposed of without extended comment. The bill shows that the title to the equity of redemption sought to be foreclosed, was, when the mortgage was made, held by the mortgagor, the Bloomiugdale Graphite Company, and that by the sheriff’s sale and deed this equity of redemption has been conveyed to the defendant Out-water. The bill also shows that the mortgagor is insolvent, and that being a corporation it has, because of its insolvency, suspended its business, and that it has no property or assets whatsoever.

A mortgagor may be a proper party to a foreclosure bill, even after he has conveyed the equity of redemption to another. Chester v. King, 1 Gr. Ch. 406. But if he has disposed of the equity of redemption, and has no interest in the mortgaged premises, he is not a necessary party to a bill to foreclose. Story Eq. Pl. §§ 197, 198; Harrison v. Johnson, 3 C. E. Gr. 425. And a demurrer filed because such a mortgagor is not made a party, will be overruled. Vreeland v. Loubat, 1 Gr. Ch. 104; Bruen v. Crane, 1 Gr. Ch. 348.

. On the face of this bill it is shown that the mortgagor is a corporation, which, by the operation of the shériff’s deed, has conveyed the equity of redemption to the defendant Ontwater, so that it has ceased to have any interest in the mortgaged property. It has also become insolvent and without assets, so that even a statement of the account ascertaining the amount due on the bond, would be useless. I do not think the omission to make the mortgagor a defendant can be successfully criticised upon demurrer.

As’to the fourth ground of demurrer, that the president, vice-president &c. of the mortgagor company should be made parties defendant, no argument to sustain this claim has been made, nor have any authorities been cited to support it. I know of no principle of good pleading which makes these persons either necessary or proper parties in a bill to foreclose.

The further objection made at the hearing, that the name of the mortgagor company has been changed since the making of the mortgage, and that it should be made a party defendant under both its names, cannot be considered, as the facts referred to do not appear on the face of the bill.

I will consider together the first and second grounds of demurrer to the making of the complainant, who is only a bondholder, a party, and the omission to make the trustee-mortgagee or its successor a party.

The well-settled rule is that in a foreclosure of a mortgage held by a trustee, not only the trustee, but also the cestuis que trust should be-parties to the bill. The holders of both the legal and the equitable interests in the mortgage are necessary parties. Story Eq. Pl. §§ 201, 207; Allen’s Executor v. Roll, 10 C. E. Gr. 165; Large v. Van Doren, 1 McCart. 208.

The same rule was enforced where the equity of redemption was held upon a trust to sell, pay off encumbrances and apportion the net proceeds among certain specified persons, and the trustee alone was held not to be enabled to defend a bill to foreclose, and that the cestuis que trust were necessary parties (Calverley v. Phelp, 6 Madd. 144, *229); and this notwithstanding that, in the trust deed, the author of the trust had in it declared that the receipts of the trustees should be a discharge to the purchaser. Calverley v. Phelp, 6 Madd. 145, *230.

The trustee-mortgagee is the holder of the legal estate which is to be protected by the decree of foreclosure from the exercise of the right to redeem, when sale shall have been made by virtue of the decree. If the holder of the equity of redemption should wish to redeem at any time before the sale, the trustee-mortgagee is the person who should reconvey. Wood v. Williams, 4 Madd, *186. Or if payment and satisfaction of the mortgage is desired to be made, the trustee-mortgagee is the person to whom payment or tender must be made, and who, having the custody of the mortgage, may surrender it for cancellation of record.

The demurrant Outwater is the holder of the equity of redemption. He is entitled to redeem the mortgage if he so elects; but though a decree is asked in this suit which will debar him from the exercise of this right, there is no party to the suit to whom he can make a tender of the mortgage debt, or who can' reconvey the legal estate or surrender the mortgage for cancellation.

These appear to be weighty reasons why there should be before the court, as parties in this suit, either a trustee to represent the bondholders, or the bondholders themselves as complainants or defendants.

The rule is elementary that the court must have before it all the parties whose rights will be in any way affected by its action, in order that all questions touching the subject-matter of the suit and pertinent to the relief sought may be considered and finally determined. Story Eq. Pl. §§ 201, 207 and notes ; Jones Mort. § 1384; Stillwell v. McNeely, 1 Gr. Ch. 305 ; Brokaw v. Brokaw, 14 Stew. Eq. 223.

This rule has its exceptions, arising out of the circumstances of particular cases, which may excuse the complainant from its observance. One is the inconvenience and expense of bringing before the court all of a large number of the cestuis que trust whose interests are substantially the same and who may be represented •by a trustee whose duty it is to care for their interests. The trustee-mortgagee might in such' case file his bill in his own name for the benefit of the cestuis que trust, and without making them parties. Hackensack Water Co. v. De Kay, 9 Stew. Eq. 552.

The court may permit a limited number of the cestuis que ■trust to be made parties if their interests are the same, but in such case the trustee is always made a party if it be possible. ■If the court is to dispense with the presence of any of the cestuis que trust, to avoid the inconvenience of bringing so.large a number before the court, it follows of necessity that the trustees of the property upon which the court is to act should be parties to the record, that they may inform the court whether the record is sufficiently framed in the interests of all the cestuis que trust by the selection of those who are made parties to represent the interests of all. Holland v. Baker, 3 Hare 68.

Ordinarily, in a foreclosure bill, the trustee-mortgagee should be complainant; but if the trustee refuses to act, any bondholder may file a bill, but he will not be permitted to proceed without bringing in the other bondholders iu some manner. Hackensack Water Co. v. De Kay, ubi supra.

In the case last cited, the trustee refused to file a bill, and some of the bondholders filed one, making the trustee a defendant as the representative of the other bondholders. .The court. permitted the cause to proceed, because the trustee as a defendant still represented all the other bondholders, and their several, rights as between themselves, could be ascertained by bringing them before the master.

When, on the face of the bill, it is shown that the cestuis que trust who should be parties, are not brought in, the bill is demurrable (Tyson v. Applegate, 13 Stew. Eq. 311), or else the bill should state a sufficient reason why they are not made parties to the record. Holland v. Baker, ubi supra. But if in the nature of the case it is apparent that the number of the cestuis que trust is so great and their location so world wide that the complainant cannot bring them all in, the court will permit the trustee to. represent them. Willink v. Morris Canal Co., 3 Gr. Ch. 398.

In the case under consideration the complainant filed his bill, in his own name, against the demurrant as purchaser and holder of the equity of redemption and the demurrant’s wife, as being entitled to an inchoate right of dower. Neither the trustee-mortgagee nor any other bondholder is made a party complainant or defendant. In justification of the omission to make the trustee-mortgagee a party, the complainant alleges that the trustee is a corporation, and that it has been dissolved and its charter forfeited, and that it is, therefore, no longer capable of acting as trustee. This may be some reason for not making the defunct corporation a party, but an examination of the mortgage as set out in the bill shows, and the complainant in his bill admits, that this incident was by the express terms of the mortgage contemplated and provided for, so that if the trustee-mortgagee should become incapable of acting in the trust, a new trustee might be appointed by the mortgagor, with the consent of a majority in interest of holders of the bonds, and if, after reasonable exertion, this proved impracticable, then the holder of $10,000 of the bonds might, on thirty days’ notice, apply for the appointment of a new trustee. The complainant states that he and others did request the mortgagor to appoint, but he does not show that a majority of the bondholders requested or consented, or that he had sought to obtain a majority to consent, and that they refused. The complainant holds $12,000 of the bonds — more than enough (if he had exhausted all other modes of securing a new trustee) to enable him to have a new trustee appointed on his own application, and he admits that he has made no effort thus to have a new trustee appointed.

His excuse for this omission is that it would result in delay, inconvenience aud expense. As to the delay, the decree of forfeiture against the trustee-mortgagee was made May 10th, 1891. The complainant became the holder of his bonds prior to October, 1892. On October 1st, 1892, the mortgagor defaulted in the payment of interest upon the demand of the complainant. He was, therefore, notified on that date to look to his remedies. The only step shown to have been taken by him to cany into effect the provisions of the mortgage between October 1st, 1892, and May 16th, 1896, when he filed this bill, was the request which he alleges he and others made that the mortgagor should appoint a new trustee. He waited over three years and seven months without taking the remedy which, by the express terms of the mortgage, it was in his own power, as the holder of $10,000 of the bonds, to invoke. The delay seems to have been largely his own choice. As to future delay, the proceeding to appoint a new trustee may be initiated by the complainant himself, and is summary in its nature. There need be no delay; it is in his own power to expedite the appointment.

As to the allegation of inconvenience and expense: The court will not relieve the complainant from his duty to bring all parties in interest before it, simply because it may be difficult or annoying. The inconvenience must be such that if the rule were enforced the complainant would be subjected to very great expense, or to such additional inquiry and procedure that to burden him with it would amount to a denial of the aid of the court in the recovery of his money, as in the case of Van Vechten v. Terry, 2 Johns. Ch. 197, where there were two hundred and fifty owners, aud a nominal trustee for them all was held to be a sufficient defendant; Willink v. Morris Canal Co., supra, where the great sum loaned, $750,000, was likely to embrace a large number of persons, so scattered over the face of the world that it would be impossible for the complainant to find them, and the complainant, who was trustee, was allowed to proceed without these cestuis que trust; and Hackensack Water Co. v. De Kay, 9 Stew. Eq. 37, 550, where one hundred and thirty-two bonds were secured by the mortgage and the complainants held only twenty-four, and they applied to the trustee to foreclose, and when he refused, made him a defendant. Cases of this character are exceptional; the trustee stands as the representative of the interests of all the cestuis que trustent, and when he is made a party, the court does not require the cestuis que trustent, if they can only be brought in under great expense and hardship to the complainant, to be made parties.

In Tyson v. Applegate, ubi supra, the general rule and the exceptions are discusssd by the court of errors, and a demurrer for want of parties was sustained where a trustee and three cestuis que trust under a trust mortgage were not made parties.

In the case under consideration the complainant may, on his own application, have a trustee appointed who will represent all the bondholders. By accepting his bonds, with these provisions in the mortgage, he agreed that he would adopt this mode of procedure, and nothing is alleged in the bill to show that it is either unduly expensive or seriously inconvenient, nor are these results reasonably inferable from the character of the case. The conjecture set out in the bill that the new trustee to be appointed on the application of the complainant himself would be hostile to his interests and those of the other bondholders, and would require burdensome indemnity and fees for services &c., is not a statement of existing facts, but is a mere suggestion of the apprehensions of the complainant, and is not in accord with the usual experience in such cases.

If the agreed mode of securing a new trustee should fail when the complainant tries to enforce it, this court, on proper proceedings, can relieve the situation by an appointment, and if the trustee should make unreasonable demands of the cestuis. que trust, this court will compel him fairly to discharge his duty. McFadden v. Mays Landing and Egg Harbor Railroad Co., 4 Dick. Ch. Rep. 189.

I think the complainant, having the power to provide' a trustee, who might execute the trusts and conduct the foreclosure in the interests of all the cestuis que trust, was bound to have secured such a trustee and to have made him a complainant, or if he refused to act, then a defendant, and that the bill is, for the omission to do this, demurrable.

In addition to the specified grounds of demurrer, the defendant on the hearing further demurred, ore tenus, that even if the complainant might, as a bondholder, bring the suit in his own name, yet if there was no trustee before the court, as • a party either complainant or defendant, to represent and protect the interests of all the bondholders, the complainant bondholder who filed the bill was bound to bring the other bondholders in as defendants.

■ The complainant replied to this criticism, that no specification has been made of this ground of demurrer under rule 209.

Under a general demurrer for want of equity, a demurrer ore tenus may be made for want of parties. Stillwell v. McNeely, 1 Gr. Ch. 306.

The rule (209, formerly 225) which prescribed that a demurrer shall distinctly specify the grounds upon which it is based, is held to be obligatory only when the defect in the bill is obscure to such an extent that the court, on inspecting the bill, cannot readily discern it, or when the defect is collateral to the main case made by the bill. Essex Paper Co. v. Greacen, 18 Stew. Eq. 504; Van Houten v. Van Winkle, 1 Dick. Ch. Rep. 380.

In the case under consideration there are several clauses in the mortgage and other facts set out on the face of the bill which manifestly show that other bondholders than the complainant have equitable rights which will be vitally affected by the decree which he seeks to obtain in this case, and that the failure to bring them before the court may prevent a proper decree.

The omission to make these’fellow-bondholders (some at least’ of whom were known to the complainant) defendants in this suit, when no trustee who could represent them is made a party, is a defect so plainly apparent upon the face of the bill that, under the construction given to rule 209, this particular defect need not be specified.

The reference on the face of the bonds to the provisions of the mortgage gave notice to the complainant- of the clauses which provide for the appointment of a new trustee, and that proceedings in foreclosure could be taken only by a trustee, and not by a bondholder. All the other bondholders took their bonds with like notice. They have a right to rely upon the security of these provisions, and to expect notice either to them or to a trustee duly appointed to care for their interests, of any suit upon the mortgage.

The reasons which, in particular cases, might excuse the omission to make the eestuis que trust parties in a suit have been heretofore discussed, and in my judgment do not relieve the complainant of the duty to bring his fellow-bondholders into court in this case. There are but twenty-six bonds secured by the mortgage which are not held by the complainant himself. If each of these is held by a separate person, which is quite unlikely, there would be a necessity to make parties of but twenty-six additional persons. Neither in the bill nor in the nature of the case does any fact appear which goes to show that the bringing these persons into court would either require an extravagant outlay or be an intolerable hardship.

In the bill the complainant states that many of the other bondholders are unknown to him. He thus shows that he must know some of them, and he does not disclose how many are unknown.

To hold that a single bondholder, under a trust mortgage, may solely foreclose without making any trustee a party, though the mortgage gives him the power to secure a trustee to be made, and without making his fellow-bondholders parties, though there is no showing that their number is great or their identity or location unknown, would in my view be a dangerous exercise of the power of the court to relax when absolutely necessary, the application of well-known rules of procedure, of which all men have knowledge, and upon the observance of which they have a right to rely.

I will advise a decree sustaining the demurrer, with costs, upon the grounds above indicated, with leave to the complainant to amend his bill within sixty days (to give him time to secure a trustee), or that, in default thereof, his bill be dismissed, and with further leave to apply to have his time to amend extended.


text:
    Martha Torrey, executrix &c., v. James Cornegys Torrey et al.
    1. A court of equity will not assume jurisdiction to construe a will alleged to pass real estate at the instance of an executor who is not, hy the terms of the will, given an estate in the property disposed of, nor charged with the performance of any trust or other duty in relation thereto.
    2. Equity will construe a devise when such construction is incidental to its general jurisdiction over trusts.
    3. The claimant of a purely legal title to lands under a devise, seeking only to establish his title as against that of the heir-at-law by the construction of the will, must assert his right at law and not in equity.
    Bill for construction of will Ac.
    The bill in this case is filed by the complainant, as executrix of the last will of her deceased husband, James W. Torrey, against their three children, one only of whom is above the age of fourteen years. For these children the clerk of this court has been appointed guardian in this suit, and formal answer has been filed by him, praying that their interests may be protected Ac. .
    The bill sets forth the testator’s will, which states him to be a bank officer, and directs the payment of debts and expenses of his funeral, regarding which he desires that all unnecessary expense may be avoided and that it may be conducted privately. The will contains these clauses:
    “ I give and bequeath to my dear wife, Martha Torrey, all of this world’s goods of which I may be possessed at the time of my death, confident that she will care for our dear children with the same love and devotion which she has ever shown them.
    “It is my desire that no inventory of my household effects be made or required at the hands of my executrix.”
    The complainant is appointed sole executrix of the will. No further disposition is made of any estate by the will than is above indicated. The executrix proved the will before the surrogate of Camden county on the 24th day of March, 1893. The children are made defendants, as next of kin and heirs-at-law of the testator, the complainant alleging that they claim that the testator died intestate of his lands, which thereupon descended to them as heirs-at-law, subject only to the complainant’s dower right, while she asserts that the effect of the will is to make her sole devisee and absolute owner of all the lands of the testator and the profits thereof.
    The complainant further states in her bill that she is desirous of selling the real estate whereof the testator died seized, and of conveying the same, but is unable to do so by reason of the claims of the children and the uncertainty as to the meaning of the will; that she, as executrix of the will, is unable to determine which of the said claims is correct, and therefore her duty as executrix is involved in doubt and uncertainty. She prays a construction of the will as it may affect the rights of the children and of herself in the testator’s land and the profits, and a decree determining the rights of the children and of herself in the real estate.

      Mr. George J. Bergen, Mr. Martin V. Bergen and Mr. F. F. Eastlack, Jr. (of Philadelphia), for the complainant.
   Grey, V. C.

The complainant files her bill as executrix, setting forth the will. She claims that under the words of the will, I give and bequeath to my dear wife, Martha Torrey, all of this world’s goods of which I may be possessed at the time of my death ” &o., she became, upon the testator’s death, sole devisee of the testator’s real estate. It is obvious that whatever was included as the subject-matter of the gift in question, the capacity in which the complainant claims to have received it was in her personal and individual right, and not as executrix of the will. No estate is alleged to have vested in her as executrix, no power touching the real estate, to be exercised by her as executrix, is set forth, nor is any duty in that capacity alleged to have been cast upon her by the terms of the devise. The face of the bill shows that she claims that by the words used the real estate of the testator passed by devise in fee to her in her own right, and that the heirs-at-law deny this claim and assert that the testator died intestate of his real estate, which descended to them in fee-simple.

The position assumed by the complainant as absolute owner denies any trust, either as executor or because of the added words of confidence &c. in the above-quoted clause of the will. The argument of complainant’s counsel is on the same line, claiming for Mrs. Torrey an absolute estate in fee-simple in the testator’s lands.

Here is a statement of a dispute confined wholly to conflicting claims between different parties, each asserting a purely legal estate in lands, one as devisee in fee, the other as heir-at-law.

The power of courts of equity to construe devises of real estate is limited to such dispositions as create or involve the creation of trusts. So far as a will of real property devises purely legal estates, and the devisees therein obtain purely legal titles to land, their enforcement belongs to the courts of law. Pom. Eq. Jur. § 1155.

The jurisdiction exercised by courts of equity in construing devises of lands is incidental to its general jurisdiction over trusts and the performance or enforcement of trusts, either express or implied; and a suit in equity of this character can only be maintained by some party directly interested in the trust under the will, and not by a devisee of a mere legal title. Pom. Eq. Jur. § 1156.

The case of Benham v. Hendrickson, 5 Stew. Eq. 444, contains a declaration to the effect that the uncertainty of devises of itself furnishes sufficient reason for recourse to equity for construction; but an examination of the facts exhibited in that case shows that the bill was filed by the holders of a title under a will against an executor of that will, who had mistakenly exercised a power of sale by selling their lands and was about to pay over the proceeds, and was proceeding to sell other of their lands not authorized to be sold by the power, and thus to create a cloud upon their title. The court held that there was no adequate remedy at law, and granted an injunction restraining the further unauthorized exercise of the power. It will be seen that the facts in the case fully warranted a restraint upon the executor in the exercise of the power entrusted to him for the settlement of the estate, and did not call for the declaration of unlimited equitable jurisdiction over the construction of wills of real estate, upon the mere ground of the uncertainty of a devise. This declaration must be read in the light of the facts then before the court in the case then under consideration.

In Youmans v. Youmans, 11 C. E. Gr. 149, a bill was filed by executors for construction and directions in the exercise of a power of sale of so much land as might be necessary to settle the estate, and was entertained.

In these cases, so far as the question of title to lands was brought before the court, it came as necessarily attendant upon the determination of a dispute involving some branch of undoubted equitable jurisdiction for direction or restraint in' the exercise of a trust or trust power.

In the lata case of Dunn v. Casperson, 15 Stew. Eq. 91, a construction of a devise was refused to an administrator cum testamento, upon the declared ground that, as administrator with the will annexed, he had nothing to do with the construction of the devises in the will.

In New York the doctrine was explicitly declared by Chancellor Walworth, in the leading case of Bowers v. Smith, 10 Paige 199, that neither the heirs-at-law nor the devisees who claim mere legal estates in the testator’s real property, can file a bill for the sole purpose of obtaining a judicial construction of his will.

In Onderdonk v. Mott, 34, Barb. 112, the supreme court of New York, sitting in equity, determined that the difficulty of want of jurisdiction in equity to construe a will at the instance of a devisee claiming a mere legal estate in real property, was insuperable, if it existed, even if not raised by the opposing party.

The court of appeals of New York, in Bailey v. Briggs, 56 N. Y. 413, approved of lhe doctrine as stated in .Bowers v. Smith, ubi supra, holding the jurisdiction to be incidental to that over trusts. This view has been consistently supported by the court of last resort in New York, in Chipman v. Montgomery, 63 N. Y. 230, and Post v. Hover, 33 N. Y. 602.

In Dill v. Wisner, 88 N. Y. 160, the court of appeals declared that the right of an executor to sue for construction of a will of real estate depends entirely upon the question whether he is invested with a trust under the will in reference to the subject-matter of the devise, and it is only in such cases that a court of equity, on the assumption of its right of supervision over trusts and trustees, will assume jurisdiction.”

There are some decisions which appear to extend the equitable jurisdiction so as to include cases where the terms of a devise are difficult or doubtful, or of contested validity, irrespective of the existence of any trust relating to the property. Most of these cases will, however, be found to present some question of undoubted equity jurisdiction and to have brought in the determination of the legal title to lands as necessarily incidental to the equitable relief sought.

The generally-accepted doctrine is that above declared, and is consistent with the long-established rule that the forum in which to settle the legal title to lands is a court of law.

In the case under consideration the bill is filed by the complainant as executrix, but she shows no trust or other duty cast upon her as executrix, touching which she might ask to be instructed. As executrix she has neither title to lands of the testator nor any other interest in them. She shows no right as executrix to ask for the construction of this will, and she asks no instructions as to her duty as executrix. Casperson v. Dunn, ubi supra; Baxter v. Baxter, 16 Stew. Eq. 85.

In the premises of her bill she alleges that she is a devisee in fee of the lands of the testator and that the heirs-at-law deny her claim, and here she asks what is really sought by the bill, namely, a construction of the terms of the will as to what is included within the words I give &c. to my dear wife &c. all of this world’s goods ” &c., alleging that these words sufficiently describe a devise of all the testator’s real estate.

Assuming that the complainant is, as she asserts, the absolute owner as devisee of the lands of the testator, she asks a court of equity to construe a devise in a will which she alleges passes to her a purely legal estate. She seeks this relief against heirs-at-law, whose estate in the decedent’s lands must be a legal estate.

Upon the case presented by the complainant’s bill her remedy should be sought at law and not in equity.


text:
    The Vineland National Bank v. Allen R. Shinn, sheriff, et al.
    Plaintiff in an execution in a sheriff’s hands, on -which a sale of lands had been advertised, gave the sheriff, before the sale was made, explicit orders not to sell, and paid his costs and expenses up to that date. Belying on these orders, plaintiff did not attend the sale. Strangers to the record, knowing that the sale had been ordered off by plaintiff, persuaded the sheriff to sell. Without notice to plaintiff, the sheriff sold at nominal prices. — Held, that the delivery of the deeds by the sheriff would be enjoined because the sale was a fraud on plaintiff and the execution debtor’s other creditors, who were pressing for judgment.
    On order to show cause, &c.
    A judgment was docketed and entered in Cumberland common pleas by Taylor Brothers against one "William G-. Marshall, on the 28th day of October, 1896. Under execution issued on this judgment the sheriff of that county had levied upon two parcels of land, No. 1, situate on Elmer street, and No. 2, on Landis avenue, in Vineland, both belonging to Marshall. The lot No. 1 was encumbered by two mortgages prior in lien to the judgment, one for $1,000 to a building association, and the other for $2,000 to one of the defendants in this bill, the York Manufacturing Company. The lot No. 2 was encumbered by a mortgage of $3,000 to the building association, which was also prior to the judgment.
    On the 30th day of October, 1896, Marshall and wife made a-mortgage for $1,100 upon lot No. 2 to the complainant, the Vineland National Bank, which was also subject to the prior • lien of the judgment entered two days before.
    The two lots had been advertised to be sold and the sale had been adjourned to the 5th day of December, 1896. Marshall was insolvent, and the complainant purchased the Taylor judgment in order to stop the sale, and on the 4th day of December had it assigned to the attorney of record to hold it in trust for the bank. This attorney was conversant with the negotiations in progress, and on the 2d day of December he notified the sheriff that he expected to stop .the sale and pay him his costs. The sheriff answered this letter, sending a memorandum of the costs. On the 4th of December the attorney of the plaintiffs in the judgment, as it stood on the face of the record, directed the sheriff not to proceed further with the sale, but to stop it and return the writ unsatisfied, so that the plaintiffs could enforce payment when they desired to do so, and sent the sheriff a check for somewhat less than the sheriff’s statement to pay the costs and expenses of the proceedings. No question was made as to .the insufficiency of the sum tendered, nor does it in fact appear that it was insufficient to pay all costs up to and including the adjournment, and it also covered some items, as those for statement and commissions, which were not due until sale was actually had. The sheriff received these instructions from the attorney of the plaintiff in the suit on which he had advertised the sale. Relying on the obedience of the sheriff to his orders for the abandonment of the sale, the plaintiff’s attorney did not attend at the time and place advertised. The sheriff, however, did not obey these orders from the plaintiff’s attorney, but, in accordance with the demands of Mr. Alvord, the attorney, and Mr. Glatfelter, the president, of the York Manufacturing Company, strangers to the judgment and to the suit on which the sheriff was proceeding, and in the absence of the plaintiff’s attorney and without any notice to him, the sheriff made the sale of the lands.
    The purchaser of lot No. 1 was the York Manufacturing-Company, for $10.
    The purchaser of lot No. 2 was the wife of the defendant-Marshal], for $72.
    Immediately after the sale, and before the delivery of the deed, the Vineland National Bank, the holder of the judgment, filed this bill against the sheriff, the York Manufacturing Company, Alvord, Marshall and his wife, asking answer'without oath and that the sheriff be restrained from delivering the deeds &c.
    An order to show cause why an injunction should not be issued was allowed, and argument has now been heard on the coming in of this order. The defendants appeared and, by Mr. Alvord, solicitor for all of them, filed separate answers, none of them under oath.
    The statute which provides that answer may be required without oath, also provides that “ on a motion to grant * * * an injunction, * * * the statements and denials in an answer duly sworn to shall have the same effect as heretofore.” Gen.. Stat. p. 876 § 88. As none of these answers are under oath, they cannot be regarded as evidential on this hearing.
    In addition to the answers of the defendants, Mr. Alvord, as attorney for the York Manufacturing Company and others, filed affidavits of Mr. Glatfelter, the president of the York Manufacturing Company, in which that gentleman swears that he attended the sale and purchased lot No. 1 for his company, because he desired to save his company the delay and expense of foreclosure of its mortgage upon that lot, and he did not wish the Taylor writ to be returned unsatisfied, because it would increase the costs and other creditors were pressing Marshall to judgment, which would tend to annoy his company, as they might thus extort money from it to get releases, or compel it to foreclose its mortgage.
    Mr. Alvord, the attorney of the York Manufacturing Company, frankly states that he “ was very anxious in behalf of his client, the York Manufacturing Company, that said sale should take place, in order that said company might be enabled to obtain title and possession to said lot No. 1.” He was of the ■opinion that to drop the sale and return the plaintiff’s writ against Marshall unsatisfied “would operate injuriously upon his •client,” the York Manufacturing Company, and therefore he ■demanded that the sheriff go on with the sale, after he knew the plaintiff’s attorney had directed that it should not proceed.
    The defendant Marshall and his wife, who purchased lot No. 2, for $72, also make affidavits in support of the sale as made by the sheriff.
    All the affidavits of the defendants are very full to show that, in the opinion of the defendants, the property was worth no more than it sold for, that they did not know of the assignment of the judgment, and that no injury has come to the complainant, and, on argument, it was particularly insisted that the complainant had no cause to complain as to the sale of lot No. 1, because it had no mortgage lien on this land. It was further insisted that a lis pendens notice had been filed, and that an injunction was unnecessary to protect the rights of the complainant.

      Mr. Leverett Newcomb, for the complainant.

      Mr. Henry S. Alvord, for the defendants.
   Grey, V. C.

There is no dispute in this case that the attorney of the plaintiffs in an execution in a sheriff’s hands, on which a sale of lands had been advertised to be held at a certain time and place, gave the sheriff, before the sale was made, explicit orders not to sell, and offered him the fees and costs of the proceedings up to that date, and indeed beyond, and that the attorney of the plaintiffs, relying upon his expectation that the sheriff would obey these orders, did not attend at the advertised place of sale.

The attorney of other parties, strangers to the record, knowing that the sale had been ordered off as above stated, and that the plaintiffs’ attorney was absent, persuaded the sheriff, for the benefit and advantage of these strangers to the suit, to go on with the sale against the express direction of the plaintiffs’ attorney. The sheriff, without notice to the plaintiffs’ attorney, made the sale, the other parties purchased one lot for $10, and the wife of the defendant in execution purchased the other for $72. These prices are obviously merely nominal, and the effort, to maintain this sale, made jointly by the York Manufacturing Company, Mr. Marshall, the defendant in execution, and Mrs. Marshall, his wife, are just as obviously intended to hinder and prevent the application of Marshall’s assets to the payment of his debts, as the defendants’ affidavits candidly admit that they wanted the sale to be made because other creditors were pressing for judgment, who might, if the sale was postponed, get liens before the title could be gotten out of Marshall’s name. Now that this object has been accomplished, the defendant Marshall is foremost in the struggle to protect the title of his wife and of his favored creditor, who have, by this device, become purchasers.

It is of no significance, under the circumstances of this case, whether the defendants knew of the assignment of the judgment or not; they all knew that it was outstanding, and that the writ was active, and that the attorney of the plaintiffs of record-ordered the sale not to be made. It was no concern of the defendants for whose benefit as plaintiff these proceedings were had, as they made no effort and had no wish to pay the judgment.

The same plaintiffs’ attorney had at all times the control of the proceedings; this all the defendants knew, and they took the steps they did take because they knew that this attorney had -ordered the sale to be stopped.

Nor do I think it of essential importance whether the lands •obtained to be sold on the plaintiffs’ execution against this.plaintiff’s express orders brought a high price or a low one. It does not lie with strangers to the record to assume the control of the proceedings on the execution in the absence of the plaintiffs and against their directions and then to excuse this conduct by insisting that the sale realized the highest possible value. So far as the sheriff was concerned, he liad no responsibility in the execution of this writ as to the time when the land should be sold except to the plaintiffs in execution. He was notified by the plaintiffs not to make the sale, and had received from them his costs and expenses to that date. He was thus relieved from the exercise of the discretion ordinarily vested in him as to the adjournment of a sale. His action in consulting strangers to the record and using the writ of execution, and the sale for their benefit and for the purpose of preventing unsecured creditors from obtaining, by judgment, liens on the lands to be sold, was not only a surprise to the plaintiffs in execution, who failed to attend the sale because they had ordered it postponed, but was also a fraud upon the plaintiffs by which they were deprived of the benefits to which they were entitled in exercising their own discretion as to when they would compel a realization to satisfy their judgment. The result of the sheriff’s action shows the success of the fraud perpetrated upon the plaintiffs. The York Manufacturing Company, one of the parties, who, through its president and its attorney, procured this sale to be made, became the purchaser of one lot at a nominal sum, and the wife of the defendant in execution became the purchaser of the other lot at a sum which seems to have been purposely placed at an amount sufficient to satisfy the plaintiff’s debt and costs on the writ. By procuring this sale to be made in the absence of the complainant, the defendant’s wife has been able to obtain the title to lot No 2 under the complainant’s judgment as of the date of its entry on the 28th day of October, 1896, and in this way to cut out the mortgage on this lot No. 2, held by the complainant, which was not recorded until the 30th day of October, 1896. The York Manufacturing Company by this process also obtained its object in securing the title to lot No. 1 for a nominal sum, preventing the other creditors who were pressing for judgment from securing any lien on the defendant’s property.

I should hesitate, in an ordinary case, to advise the issuing of a restraint against the delivery of deeds under a sale on a fieri faoias issued out of a court of law; but under the peculiar circumstances of this case, it is not the regular proceeding of a court of law which is sought to be checked. The injunction, if issued, will restrain not the regular, but an improper use of the process of that court against the orders and interests of the parties who are entitled to control it. The action of the sheriff in this case, against the plaintiffs’ attorney’s orders and in his absence, and after he had paid the costs, in associating himself with strangers to the suit and using the writ for the benefit of the defendant and a favored creditor, and to prevent other creditors from acquiring liens, was, in my judgment, not only in direct defiance of a command which he was bound to obey, but was also such a surprise and fraud upon the rights of the holders of the judgment that this court may and ought to take cognizance of the matter to prevent the success of the scheme. There is an exigency here for which adequate relief can only be had in this court. Uo report and order of confirmation of this sale would be necessary to put title in these purchasers. The sheriff can at once execute and deliver these deeds upon mere affidavit and approval of a justice of the peace or master, unless restrained by the writ of injunction from this court, and his conduct has indicated an entire willingness to act, not for the interests of the holders of the execution by which he is empowered, but against those interests and for the benefit of strangers to the record.

The facts are not disputed. On the contrary, it is frankly avowed that the York Manufacturing Company and its attorney (who is also the attorney for the defendants in the execution) and the defendants have joined forces for the purpose of procuring the sale to be made for their own benefit, against the plaintiff’s orders and just expectation.

It is claimed by the defendants that a notice of lis pendens filed secures to the complainant sufficient protection without the use of the writ of injunction. Before the statutory provision which requires the filing of notice of lis pendens, in order to charge a purchaser with notice of the suit, the rule was estab-

lished not only that bill must have been filed, but subpoena must also have been served, before persons deriving title from the litigants would be bound by the decree. Since the statute, the additional incident of notice filed is necessary to charge a bona fide purchaser or mortgagee from a litigant with theoblh gations of the decree. Houghwout v. Murphy, 7 C. E. Gr. 547. When, as in this case, there are non-resident defendants, who can only be brought into court by publication, it is doubtful whether a purchaser from such a defendant before the expiration of the period of publication, would be affected by the decree. An assignee who took his assignment after bill filed, but before subpoena served, has been held to be a necessary party. Powell v. Wright, 7 Beav, 444. It is only at the conclusion of the period of publication, and on proof of observance of the directions of the order, that the non-resident defendant is in court, as in case of subpoena served. The contracts of sale under the execution in this case are still executory, and the only complete remedy which the complainant can have is to prevent their further execution, for if title be permitted to be made under them, the complainant may be compelled to bring several suits to secure its rights, which can here and now be settled in one.

I think, under the exigency here shown, and on the ground of the fraud and surprise sprung upon the complainant, and the misconduct of the sheriff in using the plaintiffs’ writ against the attorney’s orders, I ought to advise that the order to show cause be made absolute and that injunction should issue restraining the delivery of any deeds by the sheriff under this sale. I will so advise. .•


author: Grey, Y. C.

text:
    Lizzie Kelly v. Mary S. Brennan et al.
    1. The demand, by the principal for the return of a written power under which an attorney in fact was acting, and its surrender and withdrawal without any explanatory words or further instructions, must be held to be a revocation of the power.
    2. A contract made by the principal agreeing to sell property, the subject-matter of the agency, prevents a subsequent contract for sale made by the agent, though on the same day, from having any force.
    On bill, answer and proofs.
    This bill is filed by the complainant, Lizzie Kelly, wife of Samuel H. Kelly, against the defendants, Mary S. Brennan and George W. Crosby, for the purpose of compelling the specific performance of a contract claimed by the complainant to have been entered into by the defendant Brennan for the sale of lands in Atlantic City by the action of her agent, David Giltinan. The defendant Crosby is made a party in respect to a contract which he entered into with the defendant Brennan for the purchase of this land.
    The written agreement for sale on which the complainant claims is in the words and figures as follows:
    “Atlantic City, N. J., November 23d, 1895.-
    “Received of Samuel H. Kelly the sum of $250 — on account of purchase of property on corner of Pacific and California 175 feet on Pacific — same on Monterey fronting on California. Price of same $20,000. To be paid in cash $5,000. Balance on mortgage $15,000 at 6 fa.

    “Settlement to be made thirty days after date — said property being now-owned by Mary S. Brennan.
    “David Giltinan, Agt. for
    “Mary S. Brennan.”
    The bill claims that Samuel H. Kelly, mentioned' in the agreement, was acting, in purchasing the land, for and in behalf of his wife, the complainant, Lizzie Kelly, and that after the above receipt had been given by Mrs. Brennan’s agent the defendant Crosby, being informed of the complainant’s purchase, and with the purpose of defrauding her of the benefit of her bargain, made a contract with Mrs. Brennan herself, on the 26th day of November, 1895, with actual notice of the record of the contract of the complainant] that on the 23d day of December, 1895, the complainant made a tender to the defendant Brennan of the balance of the purchase-money and a deed for execution, which she refused to execute, giving as her reason that Crosby had agreed to make a greater cash payment and that Giltinan, who claimed to act as her agent in making the contract to convey to the complainant, did not have the power to make any such contract. The bill prays for answer without oath.
    The defendant Mary S. Brennan files her several answer, denying that Giltinan was her agent for the sale of the premises, and denying that he had any authority to sell it, declaring that she had in July, 1895, authorized Giltinan, in writing, to sell the property subject to- her approval, and that subsequently, in August, 1895, she revoked even that authority, so that on November 23d, 1895, Giltinan was not her agent and had no authority to sell the property and bind the defendant in any way. She denies that her contract with Crosby was made on the 26th of November, 1895, and says that on November 21st, 1895, she gave to Crosby an option to purchase the lands, to be exercised by him on or before November 25th, 1895; that on November 23d, in the afternoon, the option was exercised by Crosby through his agent, Devine, who then paid the defendant |>500, and the defendant then gave him a receipt in the words and figures as follows:
    “B,eo’d Nov. 23/95.
    “Prom M. A. Devine, $500.00 on aoct. of purchase of land Cor. Pac. & Cal. Ave., 175 x 150, as per verbal agreement the price $20,000, J cash.
    “M. S. Bbekkax.”
    The defendant further states that on the 25th of November, 1895, and before she had any knowledge of the sale claimed to have been made by Giltinan to the complainant, she entered into the following supplemental agreement with Crosby for the sale of the premises in question, -which agreement is in these words:
    “Memorandum of sale, owner, Mary S. Brennan. Purchaser Geo. W. Orosby; property northeast corner of Pacific and California Avenues, same being 175 feet on Pacific Avenue 250 feet on California Avenue to Monterey Ave.
    “Terms twenty thousand (20,000) dollars, ten thousand (§10,000) dollars to be paid in cash and the balance to remain in mortgage. The owner to furnish a good title to the land through the West Jersey Title & Guarantee Company of Camden, N. J., Devine and Wootton to receive 2 % commission for the amount of the sale. Delivery on or before December 31st, 1895. The above parties do hereby agree to and with their heirs and assigns to abide by said above terms and agreement for time as above, and the said owner hereby acknowledges the receipt of five hundred (§500.00) dollars in payment of above consideration, signed and sealed this 23d day of November, 3895.
    “ Witness
    “ N. H. Brennan as to
    “ Mary S. Brennan. Maby S. BKEsnsrAN. [n. s.]
    “M. A. Devine, as to Geobghe W. Cbosby. [l. s.]
    “ George W. Crosby.”
    The defendant Crosby files his separate .answer and denies that he made his agreement to purchase after having been notified that the complainant had entered into an agreement for a like purchase. He denies that he did anything for the purpose of cheating or defrauding the complainant, but admits that he purchased the property from the defendant through his agents, Devine & Wootten, and declares that he had no notice of any agreement by complainant with Mrs. Brennan for the purchase of the premises, and says that his own effort to secure the same was in good faith, without any notice of any equity of the complainant in that matter. He further denies that he ever saw any contract which was entered into between the complainant and Mrs. Brennan.
    By the evidence submitted at the hearing it appears that on the 4th of July, 1895, Giltinan prepared a paper authorizing him to sell the premises in question as Mrs. Brennan’s agent. This authority is in these words:

      “ July 4,1895.
    “I hereby authorize David Giltinan as my agent to sell, subject to my approval, the lands owned by me on California, Pacific, Atlantic and Iowa Avenues, in Atlantic City, New Jersey, his commission on sale being two per cent.
    “Witness
    “ Mary A. Brennan. Maby S. Bbehnaií.”
    The defendant Brennan signed this paper, and, under the authority thereby given, Giltinan solicited purchasers for the property and entered into conference with Samuel H. Kelly, the husband of the complainant, for the sale of the premises. Shortly after this paper had been given — some time about the middle of July — Mrs. Brennan sent her attorney, Mr. Eerris, to Mr. Giltinan, who stated to Giltinan (as Giltinan swears) that Mrs. Brennan had been annoyed by parties in Atlantic City “ as to the danger that she was in by Giltinan having full power of attorney to do as he pleased with her property; that he [her attorney] wished, as her counsel, to look over the papers.” Giltinan says that he found the paper, gave it to Mrs. Brennan’s attorney, and he then inserted the words “ subject to my approval,” now found therein, which I have underscored in the above copy, and Giltinan further says that he then told the attorney that he “ wanted nothing unless it was approved.”
    Mr. Giltinan says that the attorney brought the paper back and called his attention to the words “subject to my approval.” Some time afterwards (shown by the testimony of Mr. Ferris to have been on the 10th of August, 1895), Mr. Giltinan says that Mr. Ferris again applied to him for the paper of authorization, stating that the lady was subjected to the same annoyance by persons who were trying to get the'' property away from him (Giltinan), and took the paper away, and Giltinan never saw it afterwards. He says the attorney told him nothing in regard to any change of sentiments or instructions.
    Mr. Ferris (Mrs. Brennan’s attorney) swears that when he took away the power of attorney, on the 10th day of August., 1895, he told Mr. Giltinan thát Mrs. Brennan had withdrawn her property from the market and had desired him, Ferris, to obtain the paper which he had given to Giltinan, and also his bill; that Giltinan said he would let him have it the next day, which he did, and said he .had no bill. Mr. Giltinan says that the statement of withdrawal did not .include the premises on the corner of California and Pacific avenues, which are now in question, but Mr. Ferris denies this, and says that he did not except the corner-piece at California and Pacific avenues. He says-that he told Giltinan that Mrs. Brennan had made an absolute withdrawal, but that he supposed that if she got her price she would, sell it; but this, he says, was given as his opinion and not by her direction. Mrs. Brennan testifies that, after the return of the paper, she did not give Mr. Giltinan any authority to sell the property,
    Mr. Giltinan continued to receive offers for the premises, and finally, on the afternoon of November 23d, 1895, on his return from Philadelphia by the train leaving that city at two p. M., he accepted one made by Kelly at $20,000, and received $250 cash, and at his- office in Atlantic City gave him the receipt above set forth, and on the same day, November 23d, wrote to Mrs. Brennan that he had succeeded in getting Kelly to give $20,000 for the property, $5,000 cash and $15,000 on mortgage, “ the settlement to be made within thirty days, if you approve. This is the highest price you mentioned to me that you would take. He has paid $250 on account,” and he stated that “ the reason of accepting of this amount was as he [Kelly] was leaving here to. go to Michigan on the early train on Monday, to remain three weeks.” Mrs. Brennan, in reply, under date of November 26th, wrote to Giltinan that
    “the lot is sold, money paid on the agreement before Mr. Kelly thought of it. I think you have forgotten August 12/95 that I withdrew thosé lots from the market. I think that if any business was to be transacted I should have been acquainted with it.”
    The testimony of Godfrey and Kelly shows that they went to Mrs.-Brennan to make a tender of the balance of cash and a mortgage, and to request her to make a deed to Mrs. Kelly in' accordance with Giltinan’s receipt. Whether a formal tender was made is disputed, but there is no dispute that Mrs. Brennan told them she had already sold the property to Dr. Crosby; that she had no business relations with Mrs. Kelly and referred them to her attorney.
    The transactions of the defendant Crosby were carried on directly with Mrs. Brennan herself by Mr. Devine, the attorney for Crosby. Mr. Devine testifies that he had advised Crosby to purchase the tract of land in question; that the matter had been in conversation between him and Crosby for some ten days or two weeks prior to the time when he purchased; that he, Devine, called upon Mrs. Brennan, in Philadelphia, and made her an offer for the property, and also for other property, and asked for an option, which Mrs. Brennan refused to-give in writing, but said she would give the refusal of it, that is, she would not sell the land for any price without advising with Mr. Devine. In the conversation between them the property now in question was referred to as the Pacific avenue end, and the figure named as the price for that portion was $20,000.
    When Devine reported this conversation to Crosby, he authorized him to purchase the Pacific end at the price named. Mr. Devine had further conference with Mrs. Brennan in Philadelphia on one or two occasions, seeking' to get her to accept a lower price for the property than $20,000.
    On Saturday, the 23d of November, 1895, Mr. Devine called at her office and again sought to purchase the property at a less price, which Mrs. Brennan refused to accept; at half-past one in the afternoon of that day he again saw Mrs. Brennan at her Philadelphia office and agreed to pay her price. He gave her a check for $500, which he had taken with him for the purpose, on account of the purchase-money, and took her receipt set out in her answer. On the same day, after this transaction was concluded, the witness, Devine, saw Mr. Giltinan on the ferry-boat crossing to Camden.
    Mr. Giltinan, in his testimony, states that he saw Mr. Devine on the boat, and came over on the same boat with him to Camden, and that he left Philadelphia on the two o’clock'train for Atlantic City; that Kelly was waiting for him. They went to Giltinan’s office in Atlantic City shortly after the'arrival of the train, and Giltinan then and there gave to Kelly the receipt which the complainant claims is her contract for the purchase of this lot.
    Devine, who made the final bargain for Crosby with Mrs. Brennan, and paid her the $500 on account of the purchase-money, swears it was done on Saturday, November 23d, 1895, about half-past one, in time for him to take the two o’clock afternoon train for Atlantic City, and that after he had made the payment and consummated the deal, he saw Giltinan on the ferry-boat going over to Camden. Devine returned to Atlantic City on Saturday and showed the receipt to Crosby, who was not satisfied with the fullness of it. The more elaborate contract of Mrs. Brennan with Crosby, above set forth, was then drawn up and Crosby signed it on Saturday evening, November 23d, and the next day, Sunday, Devine heard from Crosby that Kelly also claimed to have purchased the lot on Saturday. Devine then went to Philadelphia on Sunday afternoon, and, taking the supplemental contract with him, obtained Mrs. Brennan to execute it on Monday morning, November 25th, 1895, at about eight o’clock.
    Mrs. Brennan testified that when Devine, Crosby’s agent, made his offers, there was no one else in negotiation for the purchase of the property, not for a month before that time, and that the receipt memorandum was made and signed and the $500 hurriedly paid in order to enable him, Mr. Devine, to catch the train on the 23d of November, 1895, and that the more formal contract of the same date (Exhibit 05) was actually signed on the following Monday, November 25th, and that both were made before any word had been received by her from Giltinan about the sale, that she had at that time no other offer pending for the property, and that she considered that when Devine gave her the $500 that was the sale, and bound her. This was on Saturday, November 23d, 1895, when the informal receipt was given to Devine in Philadelphia, and before Giltinan had returned to Atlantic City on the same day, and necessarily before he met Kelly at the station in Atlantic City, and went to his office with him, and there gave Kelly his receipt.

      Mr. Carlton Godfrey, Mr. Burrows C. Godfrey and Mr. Howard Carrow, for the complainant.
    . Mr. Clarence L. Cole and Mr. Thomas F. French, for the defendants.
   Grey, Y. C.

There are two questions of fact in this case on which the several parties are at variance, the settlement of which will determine their rights. The complainant asserts that she became the equitable purchaser of the lot in question, by a memorandum of sale obtained from Mr. Giltinan, the authorized agent of the defendant Mrs. Brennan. She also alleges that the defendant Crosby 'knew she had obtained this contract, and, in order to cheat her of her bargain, afterwards entered into a subsequent contract with Mrs. Brennan herself. The complainant prays that the specific performance of her contract obtained through the agent may be decreed.

As to the first point, the dispute turns upon the assertion on the part of the complainant of Mr. Giltinan’s authority to bind Mrs. Brennan by a contract of sale, and a denial by the defendant Mrs. Brennan that he had any such power. The original employment of Mr. Giltinan was in writing, and made him Mrs. Brennan’s agent to sell the property, fixing his commission. She subsequently, as Mr. Giltinan testifies, became disquieted (whether reasonably or not is of no consequence) and caused the Words “subject to my approval” to be inserted in the written memorandum employing him. Mr. Eerris, Mrs. Brennan’s attorney, who attended to this change, says it was done about the middle of July. Shortly, after this, about the middle of August, she, by her attorney, withdrew this paper altogether from Mr. Giltinan. Mr. Giltinan continued to receive offers and to discuss the sale of the property with Mrs. Brennan for some time after the withdrawal, reporting offers, which were not accepted. But if it be assumed that Mrs. Brennan allowed Mr. Giltinan to retain any authority to sell, the real question on this branch of the case is, what was the character of that authority at the time he contracted with Kelly ? That it was originally in writing and unlimited all agree. That it was modified is also undisputed. The reason for the insertion of the words subject to my approval” was stated by Mr. Giltinan himself to be the annoyance which Mrs. Brennan suffered because of the representations of parties in Atlantic City “as to the danger she was in by my having full power of attorney to do as I pleased with her property.” This makes it obvious that Mrs. Brennan was unwilling to allow Mr. Giltinan an absolute power to make a sale of her lands, and that the -limitation requiring her approval was necessary to satisfy her mind. By the change this written authority was so restrained that if Mr. Giltinan undertook to sell as Mrs. Brennan’s agent he was thereafter obliged to subject his action to her approval. After this, he testified, that the same reasons led to the second call of Mr. Ferris (Mrs. Brennan’s attorney), when the latter took away the paper, now one of limited authority only. Mrs. Brennan is thus shown to' have been unwilling that Mr. Giltinan should exercise the authority of an agent, even subject to her approval. Mr. Giltinan claims that the taking away of the paper authority was a withdrawal only of the Atlantic and Iowa avenue lot, and not of the California and Pacific avenue lot, now in question. But the paper, as charged by Mrs. Brennán, authorized him to sell both these tracts subject to Mrs. Brennan’s approval, one no more and no less than the other. When it was taken away by Mr. Ferris (Mrs. Brennan’s representative), Mr. Giltinan testifies that Ferris “ made no comments and no remarks, and told me nothing in regard to any change of sentiments or instructions.” I think it must be taken that the withdrawal of this paper, which Mr. Giltinan defines in its original form to have been a full power of attorney, made an end of Mr. Giltinan’s authority to sell any of the land described in it. The demand by the principal for the absolute delivery of her letter of attorney, and its surrender by the agent, must be held to be a revocation. But even if this taking away of the written authority is held not to have removed the California and Pacific avenue lot from Mr. Giltinan’s control, whatever power he retained under it must certainly have been subject to her approval under the previous modification.

Mr. Giltinan, however, says that he afterwards had several interviews with Mrs. Brennan, the last in October, 1895. At this interview he testifies Mrs. Brennan told him she had withdrawn the Atlantic avenue lots from the market for the present; that she preferred selling the place now in dispute, and she would take $20,000 for it, and told him to sell it if he could get $20,000. This is the same price she had named to him about July 1st, 1895, when Mr. Doyle introduced him to her. Without admitting the full revocation of his previous power, it is under this latter verbal -authority that Mr. Giltinan claims he acted for Mrs. Brennan when he sold to Kelly. 'Mrs. Brennan was asked:

“Q. After the return of that paper, what authority, if any, did you give Mr. Giltinan to sell this property?
“A. Not any.”

She further says on cross-examination:

“ I told Mr. Giltinan that I wanted $20,000, but I didn’t recognize Mr. Giltinan as agent after I withdrew that; I said I wanted $20,000, but I did not say he must get it any more than anyone else.”

It is to be observed that Mrs. Brennan and Mr. Giltinan appear to be in direct contradiction each of the other. He claims that her direction to him created an unlimited power to bind her by written contract for sale whenever he could get $20,000 for the property. She declares that all she said to him was that her price was $20,000, but she did not give Giltinan any authority to sell, nor recognize him as her agent to bind her to a sale after she withdrew the written appointment. The complainant offered several persons who had conversations with Mrs. Brennan, some of them after the middle of August, when the written authority was withdrawn, who testified that Mrs. Brennan described Mr. Giltinan as her agent, and Mr. Kelly testified that she made substantially the same statement to him in October, 1895. None of these statements imputed to Mrs. Brennan were of a specific character, to define the nature and extent of the authority which Mr. Giltinan might have to act for Mrs. Brennan.

The claim of the complainant is that they amount to an admission by Mrs. Brennan that Giltinan was her agent with power to bind her by a contract for sale. Mrs. Brennan’s declaration is that after she withdrew the written authority Mr. Giltinan had no other right to represent her than the other person had who knew her price and brought her a purchaser. The witnesses who most accurately know what authority Mr. Giltinan had from Mrs. Brennan were of course these two persons themselves. It is, in my view, undisputed that Mrs. Brennan, in the summer of 1895, withdrew a writtén power which did confer upon Mr. Giltinan precisely the authority to act for her which, it is now asserted, she renewed by parol. It is also clearly shown that she took this power away, because she was unwilling that Mr. Giltinan should be able to dispose of her property, even subject to her approval. No reason is given why this deliberate act of Mrs. Brennan, done through her legal adviser, should have been nullified by herself unadvised, and the power renewed by parol without any limitation whatever. By a letter from Mrs. Brennan to Giltinan, dated August 31st, 1895, she writes in reply to a letter from him, I will not listen to an offer of that kind, only what I said.” In another, dated October 15th, 1895, she writes, evidently in reply :

“ The other lot, from Atlantic to Pacific, I do not care to sell at present, I prefer to sell from Pacific to Monterey on California ave., if I get -what I ask at present, if not, I will wait or divide off in lots.”

This is not the correspondence of a principal with an agent who is informed of the principal’s price and purpose, with power to bind her to a sale, but is evidently a letter of information to an inquirer who is seeking to find out whether an owner will sell, and if so, what lands. Evidently Mrs. Brennan believed that her approval was yet necessary to enable a sale to be made. Mr. Giltinan’s' letter to Mrs. Brennan, written November 23d, 1895, immediately that he had given the memorandum- of sale to Mr. Kelly, shows that at that time he stated the matter to Mrs. Brennan as if his action were still subject to her approval. He writes:

“I have succeeded in getting Mr. Kelly to give §20,000 for the piece of land owned by you on Pacific avenue to Monterey, §5,000 cash and §15,000 on mortgage at 6 per cent., payable in one or three years, the settlement to be made within thirty days if you approve.”

He immediately explains that this was the highest price she had named, that Kelly had paid $250, and that the reason he accepted this was that Kelly was about, to go away for several weeks. Thus in ihe very letter in which he announces to Mrs. Brennan the sale to Kelly, he submits the matter to her approval and excuses himself for taking a cash payment because of Kelly’s intended sudden departure. This is the first letter written by Mr. Giltinan to Mrs. Brennan which in any way assumes to act for her in any capacity regarding the sale of the lot. At once, on receipt of it, Mrs. Brennan wrote him in reply:

“ Respecting the lot in Atlantic City, the lot is sold; money paid on the agreement before Mr. Kelly thought of it. I think you have forgotten Aug. 12/95, that I withdrew these lots from the market. I think that if any business was to be transacted I should have been acquainted with it

Mr. Giltinan was recalled to the stand after all these proofs were in. He was again examined in relation to the insertion by Mr. Ferris, in July, 1895, of the words “subject to my approval,” in the written power. He testified that on that occasion, speaking to Mr. Ferris regarding the interpolation of these words, “I told- him I wanted nothing unless it was approved.”

Although there is some contradiction in the evidence, I think the weight of it goes to show that if Mr. Giltinan, on November 23d, 1895, when he gave Kelly his memorandum of sale, had any authority from Mrs. Brennan to act as her agent, it was only subject to her approval, which his sale to Kelly never received, as she disapproved it at once on notice of it.

Upon the second point, as to the priority of the agreements, the complainant claims that her .memorandum of sale was first made and obtained, and that Crosby’s was afterwards .procured to cheat her of her bargain. The evidence shows that Crosby’s agreement was obtained by a negotiation made directly with Mrs. Brennan in person, at her Philadelphia office, by Mr. Devine, Mr. Crosby’s agent, at half-past one o’clock in the afternoon of November 23d, 1895; that at that time Mr. Giltinan, through whose alleged agency complainant claims her contract, was in Philadelphia, whence he returned that afternoon by the two o’clock train to Atlantic City, where, on the arrival of the train, he met the husband of the complainant, Kelly, and at half-past three in the afternoon gave him the receipt and accepted the $250, which constitute the evidence of the complainant’s claim. There is no dispute between the parties as to the order of time in which the events narrated háppened. Irrespective of questions as to the existence or extent of Mr. Giltinan’s authority to act as agent of Mrs. Brennan in the premises, and to bind her without her previous approval, by a contract to sell, it appears that Mrs. Brennan had herself entered into a contract with Crosby to sell him the property, and had accepted $500 payment on account of the purchase-money before Giltinan, acting as her agent, had made any agreement whatever with Mr. Kelly, or had even heard from him that he was willing to pay the full price. The letters and telegrams and checks produced support the statement that the sale by Mrs. Brennan to Crosby’s agent preceded the sale by Giltinan to Kelly beyond any doubt whatever..

When Mrs. Brennan, the principal, contracted with Crosby, that act, of itself, stripped her agent, if she had one, of all power to make another contract in derogation of that entered into by his principal. The agent could have no greater authority than the principal, and the latter having disposed of the subject-matter of the agency, the power of the agent to act any further in the premises was at once ended. When Giltinan, as agent for Mrs. Brennan, undertook to deal with Kelly, the lot had already been sold by Mrs. Brennan, and partly paid for, and consequently this later transaction was of no force.

The complainant’s charge against the defendant Crosby is that he, knowing of the complainant’s previous purchase, entered into a pretended contract on the following day to buy the property from Mrs. Brennan, and her prayer is that her contract with Mrs. Brennan,-obtained as set out in the bill from Mr. Giltinan, may be specifically enforced by a conveyance &c., upon payment of price &c., mortgage made &c.

Crosby denies this charge by his answer, and sets up his own agreement made with Mrs. Brennan by his. agent, Devine, as prior in point of time and without notice of any agreement of complainant.

The issue presented between these parties is then simply and only whether Crosby, after complainant had obtained her agreement, and having knowledge of this fact, secured another from Mrs. Brennan in favor of himself. The complainant thus bases her whole complaint against Crosby solely upon her alleged priority in securing her own contract.

The review of the evidence above given shows that the agreement which Devine, Crosby’s agent, procured for him in Philadelphia, was, in fact, made before the contract between Kelly and Mr. Giltinan in Atlantic City, though on the same day. The supplemental and fuller agreement with Crosby was signed by him on the same day in Atlantic City, and perfected on the following Monday in Philadelphia by Mrs. Brennan. It is also shown that the Kelly contract, by reason of the lack of authority of Mr. Giltinan at the time of making it to bind Mrs. Brennan, is of no force to enable the complainant to maintain her bill and entitle her to the relief she asks,' against either defendant.

I will advise a decree dismissing the complainant’s bill, with costs.